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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 23 September 2019 at 22:14)
Part 8 Division 2
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.