Biodiversity Conservation Act 2016 No 63
7.12 Concurrence of Environment Agency Head if a Minister is not consent authority under Part 4 or determining authority under Part 5
(1) This section applies to the following:(a) development (not being State significant development or complying development) that requires development consent under Part 4 of the Environmental Planning and Assessment Act 1979 when a Minister is not the consent authority,(b) an activity that requires environmental impact assessment under Part 5 of the Environmental Planning and Assessment Act 1979 when a Minister is not the determining authority.(2) The consent authority is not to grant development consent if the development is likely to significantly affect threatened species, unless the consent authority has obtained the concurrence of the Environment Agency Head. However, concurrence is not required if:(a) the application for development consent is accompanied by a biodiversity development assessment report in accordance with Division 2, and(b) in a case in which the biodiversity offsets scheme applies to the impacts of the development—the conditions of the consent require the applicant to retire biodiversity credits to offset the residual impact on biodiversity values of at least the number and class specified in the report.(3) The determining authority is not to carry out the activity, or grant an approval to carry out the activity, if the activity is likely to significantly affect threatened species, unless the determining authority has obtained the concurrence of the Environment Agency Head. However, concurrence is not required if the proponent has obtained a biodiversity development assessment report in accordance with Division 2.(4) If the Minister administering this Act considers that it is appropriate, the Minister may elect to act in the place of the Environment Agency Head for the purposes of giving concurrence under this section. The Minister is required, in giving any concurrence, to consult the Environment Agency Head, to provide the consent authority or the determining authority with any recommendations made by that Agency Head and to give public notice of any such recommendation that the Minister has not accepted.(5) In determining whether to give a concurrence under this section, the Environment Agency Head or Minister (as the case requires) is to have regard to the following:(a) any species impact statement prepared for the development or activity and submissions made in response to it,(b) any biodiversity development assessment report prepared for the development or activity and the impacts of the development or activity on biodiversity values that will not be offset because biodiversity credits are not being retired as specified in the report,(c) whether the development or activity is likely to reduce the long-term viability of the threatened species or ecological communities in the bioregion (unless a biodiversity development assessment report has been prepared for the development or activity),(d) any further assessment report prepared by or on behalf of the proponent,(e) the facilitation of ecologically sustainable development.(6) A concurrence under this section may be conditional on the taking of action that the Environment Agency Head or Minister (as the case requires) considers will significantly benefit threatened species or ecological communities and to which the person required to take the action has agreed. Any such action may (without limitation) include the provision of biodiversity offsets (including the retirement of biodiversity credits in accordance with this Act).(7) The terms of a concurrence under this section may be varied by the person who gave the concurrence at any time before the consent authority or the determining authority acts on the concurrence.(8) A consent authority that grants consent, or a determining authority that grants approval, to the carrying out of development or an activity for which a concurrence under this section has been granted must grant the consent or approval subject to any conditions of the concurrence. This does not affect the right of the consent authority or determining authority to impose other conditions not inconsistent with the conditions of the concurrence or to refuse consent or approval.(9) A provision under the Environmental Planning and Assessment Act 1979 that deems consent to have been refused because concurrence has not been granted or refused within a specified period extends to a concurrence under this section.