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Contents (2016 - 63)
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Biodiversity Conservation Act 2016 No 63
Current version for 1 July 2019 to date (accessed 12 November 2019 at 09:24)
Part 7 Division 1
Division 1 Preliminary
7.1   Definitions: Part 7
In this Part:
activity means an activity within the meaning of Part 5 of the Environmental Planning and Assessment Act 1979.
biodiversity development assessment report means a biodiversity development assessment report prepared by an accredited person, but does not include a report that is no longer eligible to be submitted because of section 6.15 (Currency of biodiversity assessment report) or that is withdrawn under section 6.14.
biodiversity offsets scheme threshold—see section 7.4.
Planning Agency Head means the Secretary of the Department of Planning and Environment.
species impact statement means a species impact statement prepared in accordance with Division 5.
threatened ecological communities do not include vulnerable ecological communities (except so much of any such community as comprises a threatened species).
7.2   Development or activity “likely to significantly affect threatened species”
(1)  For the purposes of this Part, development or an activity is likely to significantly affect threatened species if:
(a)  it is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test in section 7.3, or
(b)  the development exceeds the biodiversity offsets scheme threshold if the biodiversity offsets scheme applies to the impacts of the development on biodiversity values, or
(c)  it is carried out in a declared area of outstanding biodiversity value.
(2)  To avoid doubt, subsection (1) (b) does not apply to development that is an activity subject to environmental impact assessment under Part 5 of the Environmental Planning and Assessment Act 1979.
7.3   Test for determining whether proposed development or activity likely to significantly affect threatened species or ecological communities, or their habitats
(1)  The following is to be taken into account for the purposes of determining whether a proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats:
(a)  in the case of a threatened species, whether the proposed development or activity is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction,
(b)  in the case of an endangered ecological community or critically endangered ecological community, whether the proposed development or activity:
(i)  is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or
(ii)  is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,
(c)  in relation to the habitat of a threatened species or ecological community:
(i)  the extent to which habitat is likely to be removed or modified as a result of the proposed development or activity, and
(ii)  whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed development or activity, and
(iii)  the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species or ecological community in the locality,
(d)  whether the proposed development or activity is likely to have an adverse effect on any declared area of outstanding biodiversity value (either directly or indirectly),
(e)  whether the proposed development or activity is or is part of a key threatening process or is likely to increase the impact of a key threatening process.
(2)  The Minister may, by order published in the Gazette with the concurrence of the Minister for Planning, issue guidelines relating to the determination of whether a proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats. Any such guidelines may include consideration of the implementation of strategies under the Biodiversity Conservation Program.
7.4   Exceeding biodiversity offsets scheme threshold
(1)  Proposed development exceeds the biodiversity offsets scheme threshold for the purposes of this Part if it is development of an extent or kind that the regulations declare to be development that exceeds the threshold.
(2)  In determining whether proposed development exceeds the biodiversity offsets threshold for the purposes of this Part, any part of the proposed development that involves the clearing of native vegetation on category 1-exempt land (within the meaning of Part 5A of the Local Land Services Act 2013) is to be disregarded.
Note.
 See section 6.8 (3)—any part of proposed development that involves such clearing of native vegetation is not required to be assessed under the biodiversity assessment method.
(3)  A regulation under this section may apply, adopt or incorporate a map published by the Environment Agency Head from time to time.
7.5   Relationship with Planning Act
(1)  This Part prevails to the extent of any inconsistency between this Part and the Environmental Planning and Assessment Act 1979 (or any instrument under that Act).
(2)  A reference in the Environmental Planning and Assessment Act 1979 or any other Act or in any statutory instrument or document to the Environmental Planning and Assessment Act 1979 (whether an express or implied reference) is a reference to that Act as applying in accordance with this Part.
7.6   Part does not apply to biodiversity certified land
This Part does not apply to development or activities on biodiversity certified land under Part 8.