When will the reforms commence?
The reforms will commence on 25 August 2017.
Government will continue to develop other supporting products and processes, including the Biodiversity Conservation Investment Strategy, the Native Vegetation Regulatory Map, wildlife codes of practice and an accreditation scheme for wildlife rehabilitation providers. These will not commence until Government has undertaken further consultation.
How has climate change been considered in the reforms?
NSW will continue to address carbon emissions. To achieve this, the government has announced an objective for NSW to achieve net-zero emissions by 2050. These emission reduction efforts will need to be pursued across multiple sectors including energy, transport, waste management and land management.
The NSW Government’s program of private land conservation will have significant climate change adaptation and mitigation co-benefits. These include improving landscape connectivity, allowing for adaptation and resilience for species, as well as helping to build carbon stores over the medium to long term.
Landholders have already made a very positive contribution to emissions savings in NSW, sequestering almost 10.3 million tonnes of CO2 equivalent in 2014, up from only 4 million tonnes of CO2 in 2000.
The incentives the biodiversity reforms will put in place for private land conservation mean there is potential for landholders to make further contributions to emissions savings in NSW.
What is the relationship between the Biodiversity Conservation Act and the amended Local Land Services Act?
The Local Land Services Amendment (LLSA) Act 2016 and the Biodiversity Conservation Act 2016 will establish a cohesive framework for biodiversity conservation and land management on rural land in NSW.
Vegetation management in rural lands is primarily regulated through the LLSA Act. However, clearing proposals that require approval under the LLSA Act (that is, proposals that involve clearing which cannot be undertaken using an allowable activity or under the Land Management Code) must apply the Biodiversity Offsets Scheme including the Biodiversity Assessment Method, which is established under the Biodiversity Conservation Act 2016.
Which Agency will be responsible for compliance under the Biodiversity Conservation Act and amended Local Land Services Act?
All agencies and government departments involved in land management and biodiversity conservation will play an active role in promoting voluntary compliance.
The formal compliance and enforcement functions of the new legislation will be undertaken by the NSW Office of Environment and Heritage.
The reforms will not change the existing compliance and enforcement functions provided under the Environmental Planning and Assessment Act 1979.
Public consultation process
How can I find out more information about the proposals on exhibition?
You can find more information on this website:
- Land management and regulatory map
- Ecologically sustainable development
- Native plants and animals
- Private land conservation
Fact sheets and submission guides have been prepared to help you understand the proposals on exhibition and prepare your submission.
You can join us for a webinar live to hear from experts on the exhibition products and ask questions, or view a recording of the webinar at a later date.
How can I have my say?
You can have your say about the draft regulations and supporting products by making a submission on this website or writing to:
Land Management and Biodiversity Conservation Reforms
Office of Environment and Heritage
PO Box A290
Sydney South NSW 1232
Submissions close on 21 June 2017.
I made a submission during the public consultation process in 2016. What happened to it?
When finalising the Biodiversity Conservation Act and Local Land Services Amendment Act the Government carefully considered the feedback received during consultation in 2016.
A summary of submissions report was prepared summarising the feedback received in 2016. This report and previous submissions can be viewed on the Consultation Archive page.
Where authors have asked for their submissions to be kept confidential we have not published the submission on the website.
Land Management and Regulatory Map
How do the allowable activities differ from Routine Agricultural Management Activities (RAMAs) under the previous Act?
Allowable activity provisions permit impacts on native vegetation associated with every-day land management activities, such as environmental protection works, collection of firewood and the construction, operation and maintenance of rural infrastructure, such as fence-lines, dams, sheds and tracks.
In developing the allowable activities, the Government has consolidated, simplified and expanded the existing routine agricultural management activities in the Native Vegetation Act 2003. Greater flexibility and discretion is provided to landholders and Local Land Services, to enable them to sensibly and efficiently manage these low-risk activities.
Allowable activity provisions also impose more transparent requirements to minimise impacts on native vegetation and, where possible, to co-locate infrastructure.
What is the difference between an offset and a set-aside area?
Both offset sites and set-aside areas are established to protect biodiversity. Both apply in perpetuity.
Set-asides are established on the same land holding where the clearing occurs. The landholder is responsible for management of the set-aside. Set-asides are identified by landholders in conjunction with the Local Land Services and listed on a public register.
Offset sites under the Biodiversity Offsets Scheme will be secured using Biodiversity Stewardship Agreements. These are voluntary in-perpetuity agreements between a landholder and the Minister for the Environment. The agreements will be registered on the title of the land and listed in a public register. Stewardship agreements generate biodiversity credits, representing the gain in biodiversity achieved by protecting and managing the land. These credits can be sold to development proponents to offset biodiversity impacts elsewhere.
Are there types of land where clearing under the land management code is not permitted?
There will be some special categories of land on which no clearing under the code will be permitted. The draft Local Land Services Amendment Regulation proposes that this land will include coastal and Ramsar wetlands, littoral rainforest, core koala habitat, critically endangered ecological communities, old growth forests and high conservation value grasslands. The land management code can also specify additional land that cannot be cleared under the code.
What is the Native Vegetation Regulatory Map and when will it start?
The Native Vegetation Regulatory Map is a new tool that will show rural landholders where their land is regulated under the new native vegetation clearing framework.
The Map does not make an assessment of the particular type, condition or environmental value of the vegetation. It does not replace site-based assessment that may be required under approval processes.
The Native Vegetation Regulatory Map provisions will start after the bulk of the reforms commence, to allow time for further targeted stakeholder consultation. A transitional framework will apply until the Map commences.
Following further targeted stakeholder consultation OEH will publish a draft Map and the landholder review provisions will commence. This will provide an opportunity for landholders to seek a review of their property prior to the Map coming in to full effect during the first half of 2018. Landholders would seek a review if they can demonstrate that their land has been incorrectly categorised. During this transitional period OEH will not charge a fee for Map reviews.
The transitional period will end when the government publishes a final Map.
How will the new subcategory of sensitive regulated land and the existing category of vulnerable regulated land be represented on the Map?
OEH proposes that sensitive regulated land and vulnerable regulated land will be identified on the map using different colours to help differentiate the various categories. At this stage, it is likely that the map will include five colours to represent the different land categories and subcategories, these are: category 1 – unregulated land, category 2 – regulated land, sensitive regulated land, vulnerable regulated land and exempt land.
How will core koala habitat be identified for the Native Vegetation Regulatory Map?
The Local Land Services Amendment Act 2016 provides a framework for certain koala habitat identified by a plan of management under State Environmental Planning Policy 44 – Koala Habitat Protection to be prescribed (by regulation) as habitat that must be mapped as category 2 – regulated land. The draft Local Land Services Amendment Regulation proposes that koala habitat must be mapped as category 2 – regulated land if the Chief Executive of OEH considers it to be core koala habitat.
‘Core koala habitat’ is proposed to also be included in the new category of ‘sensitive category 2’ land. Clearing under the Land Management Code would not be permitted on such land.
Core koala habitat has been mapped for a limited number of local government areas through comprehensive koala plans of management made under the State Environmental Planning Policy 44. The government is currently developing a NSW Koala Strategy that includes a proposal to develop a statewide map of koala habitat. The statewide map will be completed in stages with the whole map completed in December 2019.
The government is seeking feedback on how koala habitat, where clearing is regulated by the Local Land Services Amendment Act 2016, should be identified.
What can I do if I disagree with the categorisation of my land on the Native Vegetation Regulatory Map?
The draft regulation enables landholder review of the Native Vegetation Regulatory Map during the transitional period if they can demonstrate that their land has been incorrectly categorised in the draft Map. The draft regulation sets out further detail about the process for re-categorisation of mapped land, the review of categorisation decisions, and appeals against categorisation or re-categorisation decisions.
How can people other than landholders get involved in the Map review?
The draft Native Vegetation Map Method Statement was part of the reform package released for public exhibition in 2016. Government has considered feedback received during this period in continuing to develop the Map.
The public can also be involved during the annual review of the Map. It is proposed in the draft regulation that OEH will be required to issue a public notice of re-categorisation of land and invite submissions for at least 30 days.
What approvals will be required for activities on travelling stock reserves?
The draft regulation includes a consultation note indicating that this Regulation may be revised after consultation to prescribe travelling stock reserves (TSRs) as category 2- regulated land.
The government is seeking feedback on how TSRs should be treated under the Local Land Services Amendment Act.
The Vegetation State Environmental Planning Policy (SEPP)
What will the new Vegetation State Environmental Planning Policy (SEPP) do?
The Vegetation SEPP:
- provides assessment and approval pathways for the clearing of native vegetation on urban land and environmental conservation/management zones for which development consent is not required under a relevant environmental planning instrument.
- introduces a more robust scheme for issuing permits for the removal of trees or vegetation including the ability for permits to be issued subject to conditions.
- repeals clauses 5.9 & 5.9AA of the Standard Instrument—Principal Local Environmental Plan. These clauses require development consent or a permit from Council for the removal of trees or vegetation to which a development control plan applies. The effect of clauses 5.9 and 5.9AA has been substantially reproduced in the Vegetation SEPP for land to which the SEPP applies.
What is the Explanation of Intended Effect for the proposed Vegetation SEPP?
The Explanation of Intended Effect (EIE) provides an explanation of what the proposed Vegetation SEPP will do, the intended outcomes and the reasons for the proposed policy approach. Government is now seeking submissions on the proposed policy approach explained in the EIE.
Where will the Vegetation SEPP apply?
The Vegetation SEPP will apply to the Sydney metropolitan area, and to all other land in NSW that is zoned for urban purposes or for environmental conservation/management under the Standard Instrument – Principal Environmental Plan. The Secretary of the Department of Planning and Environment may also declare that the Vegetation SEPP applies to land that is not yet zoned under the Standard Instrument if the land has an urban or environmental conservation purpose.
A full list of the Sydney metropolitan local government areas and urban and environmental conservation/management zones to which the SEPP applies is provided in the EIE.
Why has a new Vegetation SEPP been developed?
The Vegetation SEPP will ensure that the new Biodiversity Offsets Scheme (BOS) applies to clearing of native vegetation in urban areas and areas zoned for environmental conservation/management that exceed the BOS thresholds if development consent is not required for the clearing under a relevant environmental planning instrument. The proposed BOS threshold has been released for public consultation in the draft Biodiversity Conservation Regulation 2017.
Who has been consulted on the Vegetation SEPP?
The Department of Planning and Environment has undertaken preliminary consultation with state agencies, councils, peak industry bodies and environmental groups to develop the Vegetation SEPP.
We are now seeking submissions on the proposed policy approach explained in the EIE.
What are the Biodiversity Offsets Scheme threshold?
The Biodiversity Offsets Scheme threshold is a simple, objective, risk-based test used to determine when the biodiversity assessment method and the Biodiversity Offsets Scheme apply. It is relevant to local developments (Part 4, non-state significant development/state significant infrastructure under the Environmental Planning and Assessment Act 1979), and clearing that does not require development consent in urban areas and in E2-E4 zones (under the Vegetation SEPP).
There are two elements to the threshold test – an area trigger and a Sensitive Biodiversity Values Land Map trigger. These are set out in the draft Biodiversity Conservation Regulation released for public comment are explained in the Submissions Guide on Ecologically Sustainable Development. If clearing exceeds either of these triggers, the Biodiversity Offsets Scheme will apply to the proposed clearing.
How will Councils regulate clearing below the Biodiversity Offset Scheme threshold?
The Vegetation SEPP will repeal clause 5.9 and 5.9AA of the Standard Instrument - Principal Local Environmental Plan, however the effect of these clauses will be substantially recreated in the Vegetation SEPP.
Councils will continue to regulate the clearing of vegetation (including native vegetation) below the Biodiversity Offsets Scheme threshold through their Development Control Plans (DCPs). However, Councils will no longer be able to require development consent for clearing of non-heritage vegetation under a provision in a DCP. Instead, Councils will be provided with a more robust scheme for regulating clearing of vegetation below the Biodiversity Offsets Scheme threshold through the issue of permits for clearing, including the ability to charge application fees for permits and to issue permits subject to conditions.
The Vegetation SEPP will include savings and transitional provisions that will mean that existing DCPs will continue to have effect. There will be no need for Councils to change their DCPs, however existing provisions requiring development consent for clearing of non-heritage vegetation will no longer have effect. Existing requirements for development consent for clearing of non-heritage vegetation will be replaced with a permit requirement.
Some Councils have indicated that they would like to refocus their DCPs to provide better outcomes for urban heat management and biodiversity conservation. The Department of Planning and Environment would be interested to hear in submissions from Councils how it can best support the development of best practice vegetation management DCPs.
How will the Councils regulate heritage vegetation?
There is no change to the way that heritage vegetation is regulated. Heritage vegetation will continue to be regulated under clause 5.10 of the Standard Instrument—Principal Local Environmental Plan.
Does the Vegetation SEPP include Routine Agricultural Management Activity (RAMA) and ‘non-protected regrowth’ clearing exemptions in E zones?
The Native Vegetation Act 2003 exempted from approval requirements clearing of ‘non-protected regrowth’ and clearing for ‘Routine Agricultural Management Activities’ (RAMA). Clause 5.9 of the Standard Instrument – Principal Local Environmental Plan presently allows Councils to apply these exemptions in R5 (large lot residential) and E2 (Environmental Conservation), E3 (Environmental Management) and E4 (Environmental Living) zones.
The RAMA and ‘non-protected regrowth’ exemptions will be repealed as a consequence of the repeal of the Native Vegetation Act 2003 by the Biodiversity Conservation Act 2016. It is not intended to mandate the RAMA and ‘non-protected’ regrowth exemptions under the Vegetation SEPP, as these exemptions are considered to be inconsistent with the objectives of the R5 and E2, E3 and E4 zones.
What is the process for finalising and making the proposed Vegetation SEPP?
Submissions received during exhibition of the EIE will be taken into consideration by the Department of Planning and Environment in finalising the Vegetation SEPP.
Where can I find out more about the Vegetation SEPP?
Please visit: www.planning.nsw.gov.au/vegetationSEPP
Ecologically Sustainable Development
In what situations will the Biodiversity Offsets Scheme apply?
The Biodiversity Offsets Scheme will apply to the following developments and clearing proposals:
- Local development that will have impacts above the ‘Biodiversity Offsets Scheme Threshold’ or is likely to significantly affect threatened species or ecological communities based on the assessment of significance in s7.3 of the Biodiversity Conservation Act 2016. (“Local developments” are development proposals approved under Part 4 of the Environmental Planning and Assessment Act 1979 (EP&A Act) other than State Significant Development and Complying Development)
- State Significant Development and State Significant Infrastructure unless it is not likely to have any significant impact on biodiversity values (as determined by the Secretary of the Department of Planning and Environment and the Chief Executive of the Office of Environment and Heritage)
- Clearing above the Biodiversity Offsets Scheme threshold regulated through the proposed Vegetation State Environmental Planning Policy. This covers clearing that does not require development consent in urban areas and environmental conservation zones (E2-E4 zones).
- Agricultural clearing proposals that require approval by the Native Vegetation Panel under the Local Land Services Amendment Act 2016.
- Biodiversity certification proposals
- Activities assessed under Part 5 of the EP&A Act if the proponent chooses to opt-in to the Biodiversity Offsets Scheme
What is the Biodiversity Offsets Scheme Threshold?
The Biodiversity Offsets Scheme threshold is a simple, objective, risk-based test used to determine when the Biodiversity Assessment Method and the Biodiversity Offsets Scheme apply. It is relevant to local developments (Part 4, non-state significant development/state significant infrastructure under the Environmental Planning and Assessment Act 1979), and clearing regulated by the proposed Vegetation State Environmental Planning Policy.
There are two elements to the threshold test – an area trigger and a Sensitive Biodiversity Values Land Map trigger (see the Submissions Guide on Ecologically Sustainable Development for more detail). If clearing exceeds either trigger, the Biodiversity Offset Scheme applies to the proposed clearing.
Local developments that do not exceed the threshold will also be required to assess if the development is likely to significantly affect threatened species or ecological communities based on the assessment of significance in s7.3 of the Biodiversity Conservation Act 2016. If the development is likely to have a significant effect, then the Biodiversity Offsets Scheme applies.
Will the Sensitive values map for the Biodiversity Offsets Scheme Threshold be publicly available?
A draft sensitive values land map has been released for public consultation. The final map will be made available on a government website when the Biodiversity Offsets Scheme commences.
What does “avoid, minimise and offset” mean in practice?
The Biodiversity Conservation Act 2016 establishes a framework to avoid, minimise and offset impacts on biodiversity.
Under the new Biodiversity Offsets Scheme applications for development or clearing approvals must set out how impacts on biodiversity will be avoided and minimised. For example, to avoid biodiversity impacts a proponent may change the layout of their proposed development so that less native vegetation needs to be cleared. To minimise biodiversity impacts a proponent may propose limiting certain operations during the breeding season of local threatened species, or reducing use of lighting at night to minimise impacts on nocturnal threatened species.
The Biodiversity Assessment Method will be used to calculate an offset obligation (in biodiversity credits) for the remaining residual impacts, which the approval authority will consider if they approve the development or clearing proposal.
How can a developer meet their offset obligation under the Biodiversity Offsets Scheme?
Developers will have a range of options to offset biodiversity impacts under the Biodiversity Offsets Scheme. These include buying credits from Biodiversity Stewardship sites, funding biodiversity actions or, for the first time in NSW, they can pay money into a new Biodiversity Conservation Fund to meet their offset obligation. The draft Biodiversity Conservation Regulation contains proposed offset rules to government how these offset options are used.
How can we be confident that mining projects comply with the rehabilitation commitment and standards required to meet an offset obligation?
The offset rules propose that proponents of major mining projects will be able to meet some of their offset obligation by committing to undertake ecological rehabilitation on their mine site (over and above the existing legislative standard to create a safe and stable environment). Allowing mine site rehabilitation to contribute to meeting an offset obligation will be an incentive for proponents to commit to a high standard of rehabilitation and develop innovative restoration technologies that could have genuine biodiversity value. The credit value of mine site rehabilitation is lower than an offset site with established vegetation.
The rehabilitation commitment and standards will be set out in the conditions of consent for the development and regulated as part of the mining lease under the Mining Act 1992. The proponent will be required to pay a rehabilitation bond equivalent to the cost of undertaking the rehabilitation. Once the rehabilitation has been completed to the required standard the bond will be returned.
How can paying into the Biodiversity Conservation Fund meet an offset obligation?
Under the new Biodiversity Offsets Scheme, developers will have the option to buy credits directly from landholders or pay into the Biodiversity Conservation Fund to meet an offset obligation. The Biodiversity Conservation Trust is then responsible for securing the offset.
The amount a developer would pay to the Fund will be determined by an offset payment calculator made by the Minister for the Environment. As a general rule, the amount the developer pays must cover the costs the Biodiversity Conservation Trust will incur to secure the necessary credits.
OEH has previously released a proposal for the calculator’s pricing model and has made refinements informed by feedback from stakeholders. A revised model has been released for public consultation.
How will the Biodiversity Conservation Trust select offsets?
When seeking offset sites the Trust will be required to follow the offset rules proposed in the draft Biodiversity Conservation Regulation. The proposed hierarchy of offset rules for the Biodiversity Conservation Trust starts with like-for-like offsetting as the first priority. This hierarchy of options will guide the Trust to prioritise offsets that will provide the most benefits to biodiversity. Some additional flexibility is provided to the Trust, compared to proponents, to ensure the Trust can meet its offset obligations.
A benefit of assigning the Trust a role in securing offsets, is that the Trust will have capacity to seek offsets in strategic locations and co-locate offsets for various developments. This will maximise the biodiversity benefit of the offsets.
How are offset sites established?
Under the Biodiversity Offsets Scheme offset sites must be secured using Biodiversity Stewardship Agreements. These are voluntary in-perpetuity agreements between a willing landholder and the Minister for the Environment. It is likely that the Biodiversity Conservation Trust will take on this role on the Minister’s behalf.
Stewardship agreements generate biodiversity credits, representing the gain in biodiversity achieved by protecting and managing the land. The landholder will need to engage an accredited assessor to assess the site using the Biodiversity Assessment Method and calculate the number of credits it will generate.
How much will it cost to purchase a biodiversity credit under the Biodiversity Offsets Scheme?
If a landholder decides to generate biodiversity credits (by signing up to a biodiversity stewardship agreement) they can sell those credits to developers to offset the biodiversity impacts of the development proposal. Alternatively, government or philanthropic organisations may choose to purchase the credits to secure biodiversity protections for the site.
The sale price for these credits will be negotiated on a case by case basis by the landholder and the credit buyer. As a minimum, the price must include the costs of managing the stewardship site.
Where can I find an accredited assessor to assess my development site or stewardship site, and how much will it cost?
The OEH Chief Executive will publish a public register of accredited assessors, including contact details to make it easy for you to find an assessor.
The fee an assessor charges will be negotiated between the assessor and their client, as is currently the case for any environmental impact assessment work.
How can I become an accredited assessor?
The draft accreditation scheme (which has been released for public consultation) requires an assessor to:
- have appropriate knowledge, skills or experience (such as academic qualification and/or relevant work experience), and
- complete the training course for the Biodiversity Assessment Method, and
- be a ‘fit and proper’ person.
Importantly, accredited assessors will be required to adopt a code of conduct, which will be published by OEH.
If you are interested in becoming accredited you should register your interest here. We will advise you when the training courses are being offered and when applications for accreditation open.
What happens if a development application process is already underway when the Biodiversity Conservation Act 2016 commences?
When the Biodiversity Conservation Act 2016 commences there will be situations where a consent authority has already issued assessment requirements for a development, or the biodiversity assessment for the development has substantially commenced. In these cases, it is proposed that proponent can continue with the existing assessment requirements.
Whether an assessment has substantially commenced will be determined by the OEH Chief Executive for local developments and by the Secretary of the Department of Planning for major projects.
In these situations, the proponent will have one year to submit their development application under the existing legislation. Any development applications submitted after this date will need to comply with the assessment requirements under the Biodiversity Conservation Act 2016.
What will happen to existing biodiversity credits or credit offset obligations when the Biodiversity Conservation Act 2016 commences?
Existing biodiversity credits will carry over and can be used under the new offsets scheme. For some credit types the number of credits may need to be changed so that they are equivalent to the credits that would be created under the Biodiversity Assessment Method. OEH will contact credit holders and BioBank site owners to explain this process.
A similar conversion process will also be needed for some credit offset obligations set through conditions of consent (where the obligations have not yet been met when the Biodiversity Conservation Act 2016 starts). The consent authority will adjust existing credit obligations to be consistent with the credit amounts generated through the Biodiversity Assessment Method, based on advice from OEH.
Native Plants and Animals
What is considered a high-risk wildlife activity that would require a licence?
High risk activities will be licensed to manage harm to wildlife populations, animal welfare and human health and safety. Examples of high-risk wildlife activities include pet shops selling native wildlife, trading in native plants, keeping higher risk reptiles (such as venomous snakes) and activities that will significantly affect threatened species.
There will be requirements to keep records for high-risk activities to support monitoring programs and a public register will be established that provides information on licences including all decisions made to vary, suspend or cancel those licences. Personal and other sensitive information will be excluded from the register.
What is considered a moderate-risk wildlife activity?
Under the Biodiversity Conservation Act 2016, moderate-risk activities can be carried out in accordance with an enforceable code of practice. An example of a moderate-risk activity which could be regulated by a code of practice is the keeping of lower risk reptiles (such as skinks). The government continues to consult with stakeholders to identify which activities could be appropriately managed under a code of practice.
Further public consultation will be carried out for any proposed codes of practice before they come into effect.
What is considered a low-risk wildlife activity?
The draft Regulation allows some low-risk activities that may harm locally unprotected fauna to be conducted without requiring a licence or compliance with a code of practice. These are called “exempt activities”. The provisions in the draft Regulation are based on existing arrangements.
Some exempt activities are allowed only for the purpose of mitigating crop damage for specific farming activities in certain areas, and are not authorised in national parks and other conservation lands. An example of this activity is the harming of purple swamphens in some regions to limit crop damage.
Other exempt activities relate to animals that can be kept as pets without needing to comply with a code of practice or licence e.g. various parrot species and budgerigars.
How will commercial kangaroo harvesting be regulated?
A draft code of practice for commercial kangaroo harvesting was placed on public exhibition in May 2016. The feedback received during exhibition raised concerns about this proposal. The government has listened to the community and will continue to regulate this activity through licensing.
Why is the NSW Government proposing changes to the way it regulates the wildlife rehabilitation sector?
The NSW government recognises the important contribution wildlife rehabilitators make to protecting native animals. The government plans to improve local wildlife care through strategic partnerships with these wildlife rehabilitation and rescue operators. This new approach will ensure that the sector has consistent training, standards and codes of practice to meet the strong community expectation that sick or injured animals have access to adequate care.
Work to develop a new accreditation scheme to replace existing arrangements for wildlife rehabilitation providers is underway and further public consultation will occur before the scheme comes into effect. The new scheme is scheduled to commence in late 2018.
How do plants and animals become listed as threatened?
The independent NSW Scientific Committee (to be re-named the NSW Threatened Species Scientific Committee) will continue to determine which species, ecological communities, and key threatening processes will be listed. The Committee will also be responsible for conducting periodic reviews to ensure scientific rigour in the listed species and communities.
The draft Biodiversity Conservation Regulation updates the existing listing criteria to align with the International Union for the Conservation of Nature standards.
Provisions have been included in the Biodiversity Conservation Act 2016 to support the implementation of an inter-jurisdictional Memorandum of Understanding on a Common Assessment Method for listing nationally threatened species and ecological communities. The Common Assessment Method will deliver more consistent lists of threatened entities across Australian jurisdictions and will also reduce duplication of listing efforts across jurisdictions.
Why does the Biodiversity Conservation Act no longer have a separate category for listing populations?
Populations are defined as a subset of species under the Biodiversity Conservation Act 2016. The Biodiversity Conservation Act 2016 introduces this change to align with the Common Assessment Method for listing nationally threatened species. This means a population of a particular species can be listed as threatened if it meets the criteria to be prescribed by the regulations. Listing populations as a subset of species means that the threat categories that apply to species will also be available for populations (other than the ‘extinct’ category). This introduces new categories of ‘critically endangered’ and ‘vulnerable’ for populations.
To support transition to the new legislation, the existing list of endangered populations (from the Threatened Species Conservation Act 1995) will be carried over to the Biodiversity Conservation Act 2016. The Threatened Species Scientific Committee will keep the list under review and determine whether any changes are necessary.
How is the Saving our Species program supporting the conservation of threatened species in NSW?
Saving our Species is an innovative state wide program that addresses the growing numbers of plants and animals in NSW facing extinction. The government has committed $100 million over five years to the Saving our Species program, to support the conservation of threatened species in NSW. The Biodiversity Conservation Act 2016 legislates the approach taken by the successful Saving our Species program.
- Identifies conservation actions that are needed to secure each species in the wild for the next 100 years, including how much the actions will cost and who should implement them.
- Provides opportunities for collaboration and coordination between partners and the community to achieve on-ground goals.
- Sets a clear management framework to prioritise between species projects.
How will Areas of Outstanding Biodiversity Value be identified?
The draft Biodiversity Conservation Regulation provides additional detail on how to assess if an area meets the eligibility requirements for an Area of Outstanding Biodiversity Value (AOBV) set out in the Biodiversity Conservation Act 2016.
The criteria in the draft regulation are designed to identify the most valuable sites for biodiversity conservation in NSW, with a focus on sites with highly distinctive biodiversity or features critical to the future of biodiversity in NSW (for example, unique components of genetic diversity that enable species to adapt to changing environments).
The existing areas of critical habitat declared under the Threatened Species Conservation Act 1995 will be deemed AOBVs when the Biodiversity Conservation Act 2016 commences.
What happens if my land is recommended as a potential Area of Outstanding Biodiversity Value (AOBV)?
If an AOBV is recommended over your land, the Office of Environment and Heritage (OEH) will contact you to seek your views on the recommendation. We understand that landholder knowledge is invaluable and seek to support landholders to maintain healthy and functioning landscapes.
OEH will also be required to consult the community on any recommendations to declare an area as an AOBV.
OEH will consider all feedback prior to providing the recommendation to the Minister for the Environment.
The Minister may, after considering a recommendation prepared by OEH, declare an area to be an AOBV if he or she believes the area meets the eligibility criteria.
Because AOBVs will be a priority for government investment, an AOBV declaration can help you access funds for undertaking stewardship activities. If you have an AOBV declared over on your land, the Minister for the Environment will take reasonable steps to enter into a private land conservation agreement with you. This will allow you access to ongoing support for your positive conservation actions.
Are there any restrictions on use of land that is declared an Area of Outstanding Biodiversity Value (AOBV)?
The Biodiversity Conservation Act 2016 provides legal protections for AOBV, recognising these areas will represent the most valuable sites for biodiversity conservation across NSW. It will be an offence to damage an AOBV, without an appropriate approval such as a development consent. Any development proposal located on an AOBV must be assessed using the Biodiversity Assessment Method.
AOBV are excluded from the land management framework set out in the Local Land Services Amendment Act 2016. This means clearing under the codes is not permitted in an area of outstanding biodiversity value.
Private Land Conservation
Why is it important to protect biodiversity on private land?
The NSW government recognises that engaging private landowners in conservation is an important opportunity. Many ecological communities and threatened species are found only on privately owned and managed land. More than 70 percent of the state is under private ownership or Crown leasehold. Landholders who protect the plants and animals on their land play a key role in keeping biodiversity across NSW healthy.
The Government has therefore committed an unprecedented $240 million over five years to support conservation on private land and $70 million in each following year, subject to performance reviews. This investment will be delivered by the Biodiversity Conservation Trust, guided by a Biodiversity Conservation Investment Strategy. The strategy will be an important tool in conserving biodiversity at bioregional and state scales, maintaining the diversity and quality of ecosystems and enhancing their capacity to adapt to change.
When will the Biodiversity Conservation Trust be established?
The Biodiversity Conservation Trust will be established on 25 August 2017 when the provisions of the Biodiversity Conservation Act commence.
Will the $240 million for private land conservation be used to offset the biodiversity impacts of development?
No, the $240 million for private land conservation will be in addition to payments made by developers to satisfy their offset obligations.
How can the community scrutinise the work and the priorities of the Biodiversity Conservation Trust?
The Trust is required under the Biodiversity Conservation Act 2016 to publish a business plan every four years, and annual reports on its activities.
The draft Biodiversity Conservation Regulation sets out what information the Trust must include in its business plan and annual reporting, such as goals, plans for achieving those goals, plans for investing money and managing returns, and data management. Where possible, the Trust’s goals and plans are to give effect to the Biodiversity Conservation Investment Strategy.
In addition to the standard requirements of public finance legislation, the draft Regulation proposes that the Trust’s annual reports must outline:
- progress in the past financial year against goals identified in the Trust’s business plan
- actions undertaken in the past financial year to deliver plans in the Trust’s business plan.
What is the difference between the three types of private land conservation agreements?
The Biodiversity Conservation Act 2016 establishes three types of voluntary private land conservation agreements:
Biodiversity stewardship agreements will provide for permanent protection and management of biodiversity and allow for the creation of biodiversity credits. Biodiversity credits can be sold or retired to offset development impacts under the Biodiversity Offsets Scheme.
Conservation agreements are permanent or time-bound agreements that may be eligible for stewardship payments.
Wildlife refuge agreements are an entry level option for landholders who want to protect the biodiversity on their property but do not wish to enter into a permanent agreement.
This new framework will remove duplication, improve incentives and reduce barriers for landholders to enter into long-term private land conservation. It will deliver more targeted on-ground conservation outcomes through provision of better support to landholders and create additional land use options and income streams for rural landholders.
What returns can a landholder expect if they establish a biodiversity stewardship agreement?
Landholders will be able to negotiate the sale price of their biodiversity credits with the credit buyer. A portion of the sale price must be paid into the Stewardship Payments Fund to cover the costs of managing the site in-perpetuity. The remaining income from the credit sale is kept by the landholder, as profit.
How much will it cost to enter a biodiversity stewardship agreement?
There will be upfront costs to establish a biodiversity stewardship agreement. Landholders will need to engage an accredited assessor to assess the biodiversity value of the site by applying the biodiversity assessment method. The cost of the assessment will depend on the site, for example, its size, vegetation and location.
The landholder can recover these costs through the profit they receive from the sale of their credits.
How will land management codes and allowable activities apply to my land under a private land conservation agreement?
Land secured under a private land conservation agreement must be managed for conservation. Land management codes made under the Local Land Services Amendment Act 2016 cannot be used on land subject to a private land conservation agreement. Some limited allowable activities are permitted, such as clearing for environmental protection works and for permanent boundary fences. Other restrictions on development and activities on the site may also be included in the agreement itself.
Set aside areas required by the Land Management Code under the Local Land Services Amendment Act 2016 cannot be made on land that is under a private land conservation agreement.
How will mining proposals affect my private land conservation agreement?
Private land conservation agreements do not prevent mining activity or exploration on land. The Biodiversity Conservation Act 2016 includes consultation requirements prior to entering into a private land conservation agreement, to avoid potential land use conflict with activities such as mining. However, it is possible that circumstances may arise when an agreement needs to be varied or terminated because mining is proposed for a site.
The draft Biodiversity Conservation Regulation includes new provisions to allow the reimbursement of establishment costs and other amounts if an agreement is terminated because a mining or petroleum authority is subsequently granted on the site. These other amounts may include costs incurred by the landowner or by government if the site received investment under the government’s private land conservation funding program.
How will my personal information be used on the register of private land conservation agreements?
The register of private land conservation agreements will include information that the community needs to understand where and how investment in biodiversity conservation is occurring and to demonstrate that the land is being managed to protect biodiversity. The draft Biodiversity Conservation Regulation proposes that this information should include details of the owners, the location of the site, and any agreements and management plans made for the site. It will be like the current register of Biobanking sites.
The information in the private land conservation register will be publicly accessible. The draft Biodiversity Conservation Regulation proposes to allow landholders with conservation agreements and wildlife refuge agreements to request that their personal information is kept private.
What happens to current private land conservation agreements and can they be upgraded to one of the new agreements?
Existing private land conservation agreements, including conservation agreements under the National Parks and Wildlife Act 1974, trust agreements under the Nature Conservation Trust Act 2001 and BioBanking agreements under the Threatened Species Conservation Act 1995, will be carried over and remain in place. This means that properties protected under a permanent conservation agreement will continue to be protected in perpetuity.
Landholders who have an existing agreement may be able to ‘upgrade’ to an agreement under the new Biodiversity Conservation Act 2016, although they are under no obligation to do so. The Biodiversity Conservation Trust and OEH will determine how to respond in a range of possible scenarios. This flexibility is important as each landholder’s circumstances will differ.
If landholders wish to upgrade to a biodiversity stewardship agreement, the draft Biodiversity Conservation Regulation proposes some restrictions on eligibility including if the site has already been secured as an offset. The Biodiversity Assessment Method may calculate a reduced number of credits for these sites to account for existing management requirements.
My land has been assessed for a BioBanking agreement but the agreement hasn’t yet been finalised. What happens under the new legislation?
If you have already submitted an application for a BioBanking agreement, it is proposed there will be a 12 month period for the application to be considered and signed by the Minister. This recognises that a significant amount of money can be invested in preparing an application and associated assessments. Once the BioBanking agreement is created it will be equivalent to a biodiversity stewardship agreement and managed in the same way under the Biodiversity Conservation Act 2016.
If you have not submitted a full application at the time the Biodiversity Conservation Act 2016 commences, you will need to apply for a biodiversity stewardship agreement under the new legislation.
These proposals are currently open for comment, as outlined in the submission guide.