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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 22 September 2019 at 09:19)
Part 8
Part 8 Biodiversity certification of land
Division 1 Preliminary
8.1   Definitions: Part 8
In this Part:
approved conservation measures under a biodiversity certification of land means the measures specified as approved conservation measures in an order that confers, extends or modifies the biodiversity certification.
biodiversity certification agreement means a biodiversity certification agreement under this Part.
biodiversity certification assessment report means a biodiversity certification 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is no longer eligible to be submitted because of section 6.15 (Currency of biodiversity assessment report) or that is withdrawn under section 6.14.
equivalent conservation measures—see section 8.14.
party to a biodiversity certification means a person or body identified in an order under this Part as a party to the biodiversity certification.
planning authority means:
(a)  the Minister for Planning, or
(b)    (Repealed)
(c)  a local council, or
(d)  a determining authority (within the meaning of Part 5 of the Environmental Planning and Assessment Act 1979), or
(e)  the Secretary of the Department of Planning and Environment, or
(f)  Local Land Services constituted under the Local Land Services Act 2013, or
(g)  any other person or body declared by the regulations to be a planning authority for the purposes of this definition.
Division 2 Conferral of biodiversity certification of land
8.2   Biodiversity certification
The Minister may, by order published in the Gazette, confer biodiversity certification on specified land in accordance with this Part.
8.3   Approved conservation measures under biodiversity certification
(1)  The order conferring biodiversity certification is to specify the measures that are approved conservation measures under the biodiversity certification.
(2)  The measures that may be specified as approved conservation measures are the following measures to offset the impacts on biodiversity values of the clearing of native vegetation and the loss of habitat on the biodiversity certified land:
(a)  in any case—the retirement of biodiversity credits,
(b)  in the case of a strategic application for biodiversity certification—the reservation of land under the National Parks and Wildlife Act 1974, the adoption of development controls (or State infrastructure contributions) under the Environmental Planning and Assessment Act 1979 that conserve or enhance the natural environment or any other measure determined by the Minister,
(c)  any other measures declared by the regulations to be approved conservation measures.
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.
(3)  The following related matters may also be specified in an order conferring biodiversity certification as other approved measures:
(a)  any requirements determined by the Minister as to the timing of the implementation of the proposed conservation measures,
(b)  any requirements determined by the Minister as to monitoring, reporting or auditing of the implementation of proposed conservation measures,
(c)  any other matters declared to be related matters by the regulations.
(4)  This section applies to the extension or modification of biodiversity certification under this Part in the same way as it applies to the conferral of biodiversity certification.
8.4   Effect of biodiversity certification
(1) State significant infrastructure under Part 5.1 of the Planning Act The environmental assessment requirements for the approval of State significant infrastructure under Part 5.1 of the Environmental Planning and Assessment Act 1979 do not require an assessment of the impact of the infrastructure on biodiversity to the extent that the infrastructure is carried out or proposed to be carried out on biodiversity certified land.
(2) Development (including State significant development) under Part 4 of the Planning Act An assessment of the likely impact on biodiversity of development on biodiversity certified land is not required for the purposes of Part 4 of the Environmental Planning and Assessment Act 1979.
(3)  A consent authority, when determining a development application in relation to development on biodiversity certified land under Part 4 of the Environmental Planning and Assessment Act 1979, is not required to take into consideration the likely impact on biodiversity of the development carried out on that land.
(4) Activities under Part 5 of the Planning Act An activity to which Part 5 of the Environmental Planning and Assessment Act 1979 applies which is carried out or proposed to be carried out on biodiversity certified land is taken, for the purposes of Part 5 of that Act, to be an activity that is not likely to significantly affect any threatened species or ecological community under this Act, or its habitat, in relation to that land.
(5)  A determining authority under Part 5 of the Environmental Planning and Assessment Act 1979 is not required under that Part to consider the effect on biodiversity of an activity to the extent that it is carried out on biodiversity certified land.
(6) This section prevails This section has effect despite anything to the contrary in the Environmental Planning and Assessment Act 1979 or Part 7 of this Act.
Note.
 Part 5A of the Local Land Services Act 2013 provides that biodiversity certified land is categorised as category 1-exempt land, and accordingly the land is not a regulated rural area of the State under that Part and that Part does not impose any restriction on the clearing of native vegetation on the land.
8.5   Application for biodiversity certification
(1)  An application for biodiversity certification may be made to the Minister:
(a)  by any planning authority, or
(b)  by all the owners of the land proposed for biodiversity certification (or by any other person with the approval in writing of all those owners).
An application may also be made jointly by 2 or more planning authorities, owners or approved persons.
(2)  If an application for biodiversity certification is made or proposed to be made by a planning authority, the Minister may declare that it is a strategic application for biodiversity certification:
(a)  on the Minister’s own initiative, or
(b)  at the request of the Minister administering the Environmental Planning and Assessment Act 1979, or
(c)  at the request of the applicant or proposed applicant.
The Minister is to take into account the criteria prescribed by the regulations when making such a declaration.
Note.
 Under this Part, the approved conservation measures under a strategic application are not limited to the retirement of biodiversity credits.
(3)  An application for biodiversity certification:
(a)  is to be made in the form approved by the Minister and contain the information required by that form, and
(b)  is to identify the land proposed for biodiversity certification, and
(c)  is to identify the land on or in respect of which proposed conservation measures are to be implemented, and
(d)  is to identify any person or body proposed as a party to the biodiversity certification (and who will be responsible for the implementation of the proposed conservation measures).
The Minister may require the applicant to provide such additional information as the Minister may require to determine the application.
(4)  The application for biodiversity certification is to be accompanied by a biodiversity certification assessment report.
(5)  The Minister may decline to deal with an application for biodiversity certification or to confer biodiversity certification:
(a)  if the application for certification has not been duly made, or
(b)  if the Minister considers that insufficient information has been provided to enable the conferral of biodiversity certification, or
(c)  for any other reason the Minister considers sufficient.
(6)  A planning authority may enter into an agreement with any person in connection with an application for biodiversity certification, including for the payment of any costs and expenses incurred by the authority in undertaking studies and other matters required in relation to the application. Those costs and expenses may also be payable:
(a)  under a planning agreement referred to in section 93F of the Environmental Planning and Assessment Act 1979, or
(b)  under a special infrastructure condition under section 94EF of that Act for the provision of infrastructure.
8.6   Consultation and public notification requirements in relation to biodiversity certification application
(1)  An applicant for biodiversity certification who is not a planning authority (or who is Local Land Services) is to consult the local council of the area to which the application relates before undertaking public consultation on the application.
(2)  The Minister is to consult the Minister for Planning before determining an application for biodiversity certification.
(3)  The Minister is not to confer biodiversity certification unless:
(a)  the applicant for biodiversity certification publishes notice of the application in a newspaper circulating generally throughout the State and on a website approved by the Minister (and specifies in the notice where the application will be exhibited), and
(b)  the notice invites the public to make submissions relating to the application before a closing date for submissions specified in the notice (being a date that is not less than 30 days after the date the notice is first published in a newspaper under this section), and
(c)  the applicant causes copies of the application to be exhibited on its website and such other places that the Minister requires (until the closing date for submissions), and
(d)  the applicant provides a report to the Minister that indicates the applicant’s response to any submissions relating to the application that were received by the applicant before the closing date.
(4)  An applicant may vary its application for biodiversity certification as a consequence of any submission received following public notification of the application or for any other reason.
(5)  Further public notification of the application, as varied, is not required unless the Minister otherwise directs.
(6)  Public notification under this section may be undertaken in conjunction with community consultation on a planning proposal under Part 3 of the Environmental Planning and Assessment Act 1979.
8.7   Minister may confer biodiversity certification
(1)  The Minister may confer biodiversity certification only if the Minister is satisfied that (having regard to the biodiversity certification assessment report) the approved conservation measures under the biodiversity certification adequately address the likely impacts on biodiversity values of the biodiversity certification of the land.
(2)  For the purposes of determining the approved conservation measures (including the number of credits that may be required to be retired), the Minister is to have regard to the biodiversity certification assessment report but is not bound by that report.
(3)  This section applies to the extension or modification of biodiversity certification under this Part in the same way as it applies to the conferral of biodiversity certification.
8.8   Biodiversity certification where serious and irreversible impacts
(1)  In this section, serious and irreversible impacts on biodiversity values means serious and irreversible impacts on biodiversity values as determined under section 6.5.
(2)  If the Minister is of the opinion that the clearing of native vegetation and loss of habitat on land proposed for biodiversity certification is likely to have serious and irreversible impacts on biodiversity values, the Minister:
(a)  is required to take those impacts into consideration in determining the application for biodiversity certification, and
(b)  is required to determine whether there are any additional and appropriate measures that will minimise those impacts.
(3)  This section applies to the extension or modification of biodiversity certification under this Part in the same way as it applies to the conferral of biodiversity certification.
8.9   Parties to biodiversity certification
(1)  The Minister may, in an order conferring biodiversity certification, identify the party or parties to the biodiversity certification.
(2)  The following persons or body may be identified as parties to a biodiversity certification:
(a)  an applicant for the biodiversity certification,
(b)  any person or body proposed by the applicant as a party to the biodiversity certification who consents to being made a party to the biodiversity certification.
(3)  After biodiversity certification is conferred, the Minister may, by further order published in the Gazette, identify a person or body as a party to the biodiversity certification (in addition to, or in substitution for, any person or body previously identified as a party), but only if the person or body to be identified as a party consents to being made a party to the biodiversity certification.
(4)  Subject to the regulations, this section applies to an order extending or modifying biodiversity certification in the same way as it applies to an order conferring biodiversity certification.
(5)  Consent to being made a party to a biodiversity certification cannot be withdrawn by a person or body after the person or body has been made a party to the biodiversity certification.
Division 3 Duration, extension and review of biodiversity certification
8.10   Duration of biodiversity certification
(1)  Biodiversity certification remains in force indefinitely or for such period as the Minister determines and specifies in the order conferring certification.
(2)  This section does not prevent the extension of biodiversity certification or the further biodiversity certification of land.
8.11   Extension of biodiversity certification
(1)  The Minister may, by order published in the Gazette at any time before it expires, extend the period for which any biodiversity certification remains in force.
(2)  A biodiversity certification may be extended in conjunction with a modification of the certification in accordance with this Part.
(3)  An assessment for the purposes of extending a biodiversity certification may take account of the impact of conservation measures that have already been implemented in connection with the biodiversity certification.
8.12   Review of biodiversity certification
(1)  The Minister is to undertake periodic reviews of any biodiversity certification.
(2)  The Minister is also to undertake a review of any matter for which a review is required by the terms of the order conferring biodiversity certification.
Division 4 Enforcement of approved conservation and other measures
8.13   Compliance with approved conservation and other measures
(1)  The Minister may, by order in writing, require a party to a biodiversity certification to rectify any failure to comply with the approved conservation or other measures under the biodiversity certification:
(a)  by implementing any of the approved measures within a time specified in the order, or
(b)  by implementing any equivalent conservation measures within a time specified in the order.
(2)  If a party to a biodiversity certification fails to comply with the order within the specified time, or any further time allowed by the Minister, the Minister may, by order in writing, require the party to pay to the Minister a specified penalty.
(3)  The penalty is to be the amount the Minister considers reasonable to cover the costs of implementing the relevant approved measures or equivalent conservation measures.
(4)  A penalty imposed under this section may be recovered by the Minister as a debt due to the Crown in any court of competent jurisdiction.
(5)  This section does not limit the power of the Minister to suspend, revoke or modify biodiversity certification for a failure to comply with the approved measures under a biodiversity certification.
8.14   Equivalent conservation measures
(1)  For the purposes of this Part, equivalent conservation measures, in relation to the approved conservation measures under a biodiversity certification, are conservation measures that are determined by the Minister to have an equivalent biodiversity value to the approved conservation measures.
(2)  The biodiversity value of the approved conservation measures under a biodiversity certification are to be determined in accordance with the biodiversity assessment method on which the conferral of biodiversity certification was based.
8.15   Appeals
(1)  A party to a biodiversity certification who is dissatisfied with a decision of the Minister to require the party to rectify a failure to comply with the approved conservation or other measures may appeal to the Land and Environment Court against the decision.
(2)  A party to a biodiversity certification who is dissatisfied with a decision of the Minister to require the party to pay a penalty under this Part may appeal to the Land and Environment Court against the decision.
(3)  An appeal may be made by a party to a biodiversity certification not later than 3 months after being notified by the Minister of the decision.
(4)  This section does not confer a right of appeal on a party to a biodiversity certification if the party is a Minister or a public authority (other than a State owned corporation).
Division 5 Biodiversity certification agreements
8.16   Biodiversity certification agreements
(1)  The Minister may enter into an agreement (a biodiversity certification agreement) with a person in connection with biodiversity certification (including a proposal to confer, modify or extend biodiversity certification).
(2)  The agreement may make provision for any or all of the following:
(a)  requiring the person to make monetary or biodiversity credit contributions to the Minister for the purpose of improving biodiversity,
(b)  requiring the person to dedicate land for conservation purposes,
(c)  requiring the person to carry out specified actions, or to refrain from carrying out specified actions, on land owned by the person for the purpose of improving biodiversity,
(d)  providing for any other conservation measures that the person agrees to implement,
(e)  requiring the person to make monetary or biodiversity credit contributions to a planning authority for the purpose of reimbursing the costs incurred or to be incurred by the planning authority in connection with a biodiversity certification proposal,
(f)  requiring the person to provide security for the performance of any of the person’s obligations in connection with biodiversity certification,
(g)  providing for the timing of the implementation of any of the person’s obligations in connection with biodiversity certification,
(h)  providing for monitoring, reporting and audit requirements,
(i)  providing for any other matter relating to biodiversity certification.
(3)  A planning authority may be a party to a biodiversity certification agreement.
(4)  The Minister must not enter into a biodiversity certification agreement relating to Crown land except with the consent of the Minister administering the Crown Land Management Act 2016.
(5)  A biodiversity certification agreement has effect indefinitely, or for the period specified in the agreement.
8.17   Registered agreements run with land
(1)  A biodiversity certification agreement that is registered by the Registrar-General under this section is binding on, and is enforceable against, the owner of the land from time to time as if each owner for the time being had entered into the agreement.
(2)  A biodiversity certification agreement can be registered by the Registrar-General under this section if the following persons agree to its registration:
(a)  if the agreement relates to land under the Real Property Act 1900—each person who has an estate or interest in the land registered under that Act,
(b)  if the agreement relates to land not under the Real Property Act 1900—each person who is seised or possessed of an estate or interest in the land.
(3)  On lodgment by a person of an application for registration in a form approved by the Registrar-General, the Registrar-General is to register a biodiversity certification agreement:
(a)  by making an entry in the relevant folio of the Register kept under the Real Property Act 1900 if the agreement relates to land under that Act, or
(b)  by registering the agreement in the General Register of Deeds if the agreement relates to land not under the Real Property Act 1900.
(4)  This section applies to any amendment or revocation of a biodiversity certification agreement in the same way as it applies to the agreement.
(5)  In this Part, a reference to a party to a biodiversity certification agreement includes any owner of land against whom the agreement is enforceable because of this section.
8.18   Minister may order party to rectify contravention of agreement
(1)  The Minister may, by order, require a party to a biodiversity certification agreement to carry out specified work or other actions on land owned by the person to rectify a contravention of the agreement.
(2)  The order is to specify the date by which the work or other actions must be carried out.
(3)  If the requirements of the order are not complied with by that date, the Minister:
(a)  may enter the land and cause the work or actions specified in the order to be carried out, and
(b)  may, by proceedings brought in any court of competent jurisdiction, recover as a debt from the person to whom the order was given the amount certified by the Minister as the reasonable cost of complying with those requirements.
(4)  This section does not prevent the Minister from seeking an award of damages against a party to a biodiversity certification agreement for a contravention of the biodiversity certification agreement.
8.19   Court cannot extinguish obligations
Section 89 of the Conveyancing Act 1919 does not authorise any court to modify or wholly or partially extinguish any restriction or obligation created by a biodiversity certification agreement except with the consent of the Minister.
8.20   Regulations—biodiversity certification agreements
The regulations may make provision for or with respect to biodiversity certification agreements, including the following:
(a)  the subject-matter of biodiversity certification agreements,
(b)  the making, amendment and revocation of biodiversity certification agreements, including the giving of public notice and inspection by the public,
(c)  the public inspection of biodiversity certification agreements after they have been made.
Division 6 Suspension, revocation and modification of certification
8.21   Suspension and revocation of certification
(1)  The Minister may, by order published in the Gazette, suspend or revoke any biodiversity certification.
(2)  Biodiversity certification may be suspended or revoked:
(a)  if the approved conservation or other measures under the biodiversity certification have not been complied with to the satisfaction of the Minister, or
(b)  if the Minister is of the opinion that a party to the biodiversity certification has failed to comply with an order made by the Minister in respect of the party under this Part, or
(c)  if the Minister is of the opinion that any agreement entered into in connection with the biodiversity certification has been contravened, or
(d)  in any other circumstances prescribed by the regulations.
(3)  The regulations may make further provision for or with respect to the suspension or revocation of biodiversity certification.
8.22   Modification of certification
(1)  The Minister may, by order published in the Gazette, modify any biodiversity certification by:
(a)  modifying the description of land that is biodiversity certified (to extend or limit biodiversity certification), or
(b)  modifying the approved conservation or other measures under the biodiversity certification.
(2)  Biodiversity certification may be modified:
(a)  on application (in the form approved by the Minister) by a party to the biodiversity certification or a party to a biodiversity certification agreement entered into in connection with the biodiversity certification, or
(b)  on the Minister’s own initiative (following at least 28 days notice to the parties to the biodiversity certification of the proposed modifications).
(3)  Despite section 8.7, a biodiversity certification assessment report is not required in respect of a proposed modification that substitutes equivalent conservation measures for any of the approved conservation measures under a biodiversity certification. Unless a biodiversity certification assessment report is not required, an application for the modification of a biodiversity certification is to be accompanied by a revised biodiversity certification assessment report prepared by an accredited person.
Note.
 Section 8.7 requires a biodiversity certification assessment report for any proposed modification.
(4)  Biodiversity certification may be modified on the Minister’s own initiative:
(a)  if the approved conservation or other measures under the biodiversity certification have not been complied with to the satisfaction of the Minister, or
(b)  if the Minister is of the opinion that a party to the biodiversity certification has failed to comply with an order made by the Minister in respect of the party under section 8.18 (Minister may order party to rectify contravention of agreement), or
(c)  if the Minister is of the opinion that any agreement entered into in connection with the biodiversity certification has been contravened, or
(d)  in any other circumstances prescribed by the regulations.
8.23   Appeals
(1)  A party to a biodiversity certification, or a party to a biodiversity certification agreement entered into in connection with a biodiversity certification, who is dissatisfied with a decision of the Minister to suspend, revoke or modify the biodiversity certification may appeal to the Land and Environment Court against the decision.
(2)  An appeal may be made no later than 3 months after the order suspending, revoking or modifying biodiversity certification is published in the Gazette.
(3)  This section does not confer a right of appeal on a party to a biodiversity certification, or a party to a biodiversity certification agreement, if the party is a Minister or a public authority (other than a State owned corporation).
Division 7 General provisions relating to certification
8.24   Notification of certification and changes to certification
(1)  Notice of the conferral, extension, suspension, revocation or modification of biodiversity certification is to be given, within 21 days:
(a)  on a government website maintained by the Environment Agency Head, and
(b)  to the Secretary of the Department of Planning and Environment, and
(c)  to each local council of an area in which the biodiversity certified land is located.
(2)  The Minister must make reasonable endeavours to give notice of the conferral, extension, suspension, revocation or modification of biodiversity certification, within 21 days:
(a)  to each party to the biodiversity certification, and
(b)  to each party to a biodiversity certification agreement entered into in connection with the biodiversity certification.
8.25   Intra-government dispute resolution arrangements
(1)  This section applies to the following disputes:
(a)  a dispute between a party to a biodiversity certification, or a party to a biodiversity certification agreement, and the Minister in connection with a decision of the Minister to suspend, revoke or modify the biodiversity certification,
(b)  a dispute between a public authority that is a party to a biodiversity certification and the Minister in connection with a failure by the public authority to comply with any of the approved conservation or other measures under the biodiversity certification or to implement equivalent conservation measures,
(c)  a dispute between a public authority that is a party to a biodiversity certification and the Minister in connection with a decision of the Minister to require the public authority to pay a penalty under this Part.
(2)  A dispute to which this section applies may be referred to the Premier.
(3)  The Premier may, for the purpose of resolving a dispute referred to the Premier under this section:
(a)  appoint a person or panel to hold an inquiry and make a report to the Premier, or
(b)  hold an inquiry into the dispute.
(4)  After the completion of the inquiry, and after considering any report, the Premier may make such order with respect to the dispute, having regard to the public interest and to the circumstances of the case, as the Premier thinks fit.
(5)  An order made by the Premier may direct the payment of any costs or expenses of or incidental to the holding of the inquiry.
(6)  A public authority is to comply with an order given under this section and is, despite the provisions of any Act, taken to have power to comply with any such order.
(7)  If a matter that is referred to the Premier under this section is also the subject of proceedings before the Land and Environment Court:
(a)  the Premier may suspend or terminate action under this section pending a decision of the Land and Environment Court, and
(b)  a decision of the Land and Environment Court prevails.
(8)  In this section:
public authority includes a Minister but does not include a State owned corporation.
8.26   General provisions relating to biodiversity certification
(1)  A failure to comply with the procedural requirements of this Part does not affect the validity of an order under this Part that confers, extends or modifies biodiversity certification.
(2)  The suspension, revocation or expiry of biodiversity certification does not, unless the Minister otherwise directs:
(a)  affect the obligations of a party to the biodiversity certification under this Part, or
(b)  affect any obligation a person has under a biodiversity certification agreement entered into in connection with the biodiversity certification.
(3)  Biodiversity certification is not an approval for the purposes of Part 5 of the Environmental Planning and Assessment Act 1979.
(4)  The suspension, revocation, modification or expiry of biodiversity certification does not affect any consent, approval or any other thing under the Environmental Planning and Assessment Act 1979 granted, carried out or done before the suspension, revocation, modification or expiry. The Minister may, in an order that suspends, revokes or modifies biodiversity certification, specify the application of the suspension, revocation or modification to anything pending under that Act at the time of the suspension, revocation or modification.
(5)  Biodiversity certification does not apply in relation to threatened species, populations and ecological communities under Part 7A of the Fisheries Management Act 1994.
(6)  The regulations may make further provision for or with respect to biodiversity certification, including with respect to the following:
(a)  the payment of fees in connection with the operation of this Part,
(b)  the extension of biodiversity certification,
(c)  the modification of biodiversity certification and applications for any such modification,
(d)  consultation by an applicant for biodiversity certification who is not a planning authority with the relevant planning authority.