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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 17 September 2019 at 03:03)
Part 7 Division 4
Division 4 Biodiversity assessment and offsets
7.13   Development other than State significant development or infrastructure
(1)  This section applies to an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979 that is required under Division 2 to be accompanied by a biodiversity development assessment report, except:
(a)  an application for development consent for State significant development, or
(b)  an application for a complying development certificate.
(2)  The consent authority, when determining in accordance with the Environmental Planning and Assessment Act 1979 any such application, is to take into consideration under that Act the likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application. The consent authority may (but is not required to) further consider under that Act the likely impact of the proposed development on biodiversity values.
(3)  If the consent authority decides to grant consent and the biodiversity offsets scheme applies to the proposed development, the conditions of the consent must require the applicant to retire biodiversity credits to offset the residual impact on biodiversity values of the number and class specified in the report (subject to subsection (4)). The residual impact is the impact after the measures that are required to be carried out by the terms or conditions of the consent to avoid or minimise the impact on biodiversity values of the proposed development (being measures on which the report was based).
Note.
 Division 6 of Part 6 enables a person who is required under this section to retire biodiversity credits to make a payment instead to the Biodiversity Conservation Fund of the value of the credits in accordance with the offsets payment calculator.
(4)  The consent authority may reduce or increase the number of biodiversity credits that would otherwise be required to be retired if the consent authority determines that the reduction or increase is justified having regard to the environmental, social and economic impacts of the proposed development. The consent authority must give reasons for a decision to reduce or increase the number of biodiversity credits.
(5)  A condition to retire biodiversity credits is required to be complied with before any development is carried out that would impact on biodiversity values. However, a consent to a concept development application may provide for a corresponding staged retirement of biodiversity credits before each stage of development is carried out and without the need for a further biodiversity development assessment report in connection with development applications for the subsequent stages of the development.
(6)  This section does not operate to limit the matters that a consent authority may take into consideration:
(a)  in relation to the impact of proposed development on biodiversity values, the measures that a consent authority may require to avoid or minimise those impacts or the power of a consent authority to refuse to grant consent because of those impacts, or
(b)  in deciding whether to reduce or increase the number of biodiversity credits to be retired.
(7)  If a consent authority fails to include a condition relating to the retirement of biodiversity credits required by this section (or fails to give reasons for a decision to reduce or increase the number of biodiversity credits), the Environment Agency Head may impose or vary that condition in accordance with this section in the same manner used by the consent authority in granting the development consent.
7.14   State significant development or infrastructure
(1)  This section applies to an application for development consent for State significant development under Part 4 of the Environmental Planning and Assessment Act 1979, or an application for approval for State significant infrastructure under Part 5.1 of the Environmental Planning and Assessment Act 1979, that is required under Division 2 to be accompanied by a biodiversity development assessment report.
(2)  The Minister for Planning, when determining in accordance with the Environmental Planning and Assessment Act 1979 any such application, is to take into consideration under that Act the likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report. The Minister for Planning may (but is not required to) further consider under that Act the likely impact of the proposed development on biodiversity values.
(3)  If the Minister for Planning decides to grant consent or approval and the biodiversity offsets scheme applies to the proposed development, the conditions of the consent or approval may require the applicant to retire biodiversity credits to offset the residual impact on biodiversity values (whether of the number and class specified in the report or other number and class). The residual impact is the impact after the measures that are required to be carried out by the terms or conditions of the consent or approval to avoid or minimise the impact on biodiversity values of the proposed development.
(4)  A condition to retire biodiversity credits is required to be complied with before any development is carried out that would impact on biodiversity values. If the retirement of particular biodiversity credits applies to a stage of the development, compliance with the condition for their retirement is postponed until it is proposed to carry out that stage of the development.
(5)  This section does not operate to limit the matters that the Minister for Planning may take into consideration in relation to the impact of proposed development on biodiversity values, the measures that the Minister may require to avoid or minimise those impacts or the power of the Minister to refuse to grant consent or approval because of those impacts.
7.15   Part 5 activity
(1)  This section applies to an environmental impact assessment under Part 5 of the Environmental Planning and Assessment Act 1979 in respect of which the proponent has elected under Division 2 to obtain a biodiversity development assessment report.
(2)  The determining authority is to take into consideration under that Act the likely impact of the proposed activity on biodiversity values as assessed in the biodiversity development assessment report.
(3)  If the determining authority decides to carry out the activity or approve the carrying out of the activity and the biodiversity offsets scheme applies to the proposed activity, the conditions on which the activity is carried out or of the approval to carry out the activity may require the proponent to retire biodiversity credits to offset the residual impact on biodiversity values (whether of the number and class specified in the report or other number and class). The residual impact is the impact after the measures that are required to be carried out to avoid or minimise the impact on biodiversity values of the proposed activity.
(4)  If the number of biodiversity credits required to be retired is less than that specified in the biodiversity development assessment report, the determining authority is to give reasons for the decision to reduce the number of biodiversity credits.
(5)  A condition to retire biodiversity credits is required to be complied with before any activity is carried out that would impact on biodiversity values. If the retirement of particular biodiversity credits applies to a stage of the activity, compliance with the condition for their retirement is postponed until the carrying out of that stage of the activity.
(6)  This section does not operate to limit the matters that the determining authority may take into consideration in relation to the impact of any proposed activity on biodiversity values, the measures that the determining authority may require to avoid or minimise those impacts or the power of the determining authority to refuse to proceed with the activity or to grant approval for the activity because of those impacts.
7.16   Proposed development or activity that has serious and irreversible impacts on biodiversity values
(1)  In this section, serious and irreversible impacts on biodiversity values of proposed development or activity means serious and irreversible impacts on biodiversity values as determined under section 6.5 that would remain after the measures proposed to be taken to avoid or minimise the impact on biodiversity values of the proposed development or activity.
(2)  The consent authority must refuse to grant consent under Part 4 of the Environmental Planning and Assessment Act 1979, in the case of an application for development consent to which this Division applies (other than for State significant development), if it is of the opinion that the proposed development is likely to have serious and irreversible impacts on biodiversity values.
(3)  If the Minister for Planning is of the opinion that proposed State significant development or State significant infrastructure that is the subject of an application to which this Division applies is likely to have serious and irreversible impacts on biodiversity values, the Minister:
(a)  is required to take those impacts into consideration, and
(b)  is required to determine whether there are any additional and appropriate measures that will minimise those impacts if consent or approval is to be granted.
(4)  If the determining authority is of the opinion that the proposed activity to which this Division applies is likely to have serious and irreversible impacts on biodiversity values, the determining authority:
(a)  is required to take those impacts into consideration, and
(b)  is required to determine whether there are any additional and appropriate measures that will minimise those impacts if the activity is to be carried out or approved.
7.17   Modifications of planning approvals or activities
(1)  Subsection (2) applies to an application for the modification of a development consent, or State significant infrastructure approval, that was granted after the commencement of this Division.
(2)  The provisions of this Division relating to applications for development consent or State significant infrastructure approvals apply to any such application for modification as follows:
(a)  the provisions apply in relation to the original development as proposed to be modified,
(b)  a biodiversity development assessment report is required to be submitted and taken into consideration if this Division applies to the original development as proposed to be modified even if a biodiversity development assessment report was submitted in connection with the application for the original development or even if this Division did not apply to the original development (for example, because the modification results in the development exceeding the biodiversity offsets scheme threshold),
(c)  however a further biodiversity development assessment report is not required to be submitted if the authority or person determining the application for modification (or determining the environmental assessment requirements for the application) is satisfied that the modification will not increase the impact on biodiversity values,
(d)  the biodiversity development assessment report submitted with the application for modification is to take into account any measures already taken to avoid, minimise or offset the impact on biodiversity values in connection with the consent or approval before the proposed modification,
(e)  if an application for the original development as proposed to be modified would have been required to be refused because of serious and irreversible impacts on biodiversity values, the application for modification is required to be refused.
(3)  The regulations may make further provision with respect to any such applications for modification (including exemptions to the application of this section).
(4)  The regulations may make provision with respect to the application of this Division in relation to any modification of an activity for which the proponent elected to obtain a biodiversity development assessment report for the original activity.
7.18   Planning agreements—biodiversity offsets
(1)  A planning agreement under section 93F of the Environmental Planning and Assessment Act 1979 may make provision with respect to the offset of the impact on biodiversity values of proposed development (including by the retirement of biodiversity credits in accordance with this Act).
(2)  Any such provision for the retirement of biodiversity credits may provide for a deferred credit retirement arrangement under section 6.28.
7.19   Other environmental contributions not affected
This Part does not affect any other environmental contribution under:
(a)  a development consent under Part 4 of the Environmental Planning and Assessment Act 1979, or
(b)  a State significant infrastructure approval under Part 5.1 of that Act, or
(c)  the approval of an activity by a determining authority referred to in Part 5 of that Act, or
(d)  a planning agreement under section 93F of that Act,
including any contribution for the conservation or enhancement of the natural environment by a monetary contribution or levy or by the dedication of land or other material benefit.