When will the new legislation commence?
Subject to the Bills passing Parliament, the government plans to commence the new legislation from 1 July 2017.
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.
How has climate change been considered in the reforms?
NSW will continue to address carbon emissions. To achieve this, the government recently announced its 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 proposed amendments to the Local Land Services Act and the new Biodiversity Conservation Act will establish a cohesive framework for biodiversity conservation and land management on rural land in NSW. Although vegetation management in rural lands is primarily regulated through the Local Land Services Act, it is integrated with the Biodiversity Conservation Act through the application of the Biodiversity Assessment Method (BAM) for proposals that involve clearing which is likely to have higher impacts on biodiversity, and through the application of the compliance and enforcement framework.
The Local Land Services Act will regulate clearing and management of native vegetation in rural areas, as identified in the native vegetation regulatory map. The Local Land Services Act will regulate clearing that is considered to have a lesser impact on biodiversity, through a framework of allowable activities and codes of practice. Where clearing is proposed that exceeds thresholds identified in allowable activities and codes of practice, an approval will be required and the BAM will be applied to assess the biodiversity impacts of the clearing. This ensures that appropriate assessment is made for biodiversity impacts where the changes to biodiversity is greatest. Consistent with this approach, the NSW Office of Environment and Heritage will be the responsible regulator for ensuring compliance with the new legislation.
What is the relationship of these reforms with the Environmental Planning & Assessment Act 1979?
The reforms provide a new simplified framework for the assessment of impacts on biodiversity values in relation to Part 4 development and State significant infrastructure. The framework will not automatically apply to Part 5 activities but proponents of those activities can choose to opt in.
All Part 4 development which is State significant development and all State significant infrastructure will need to be assessed using the Biodiversity Assessment Method (BAM), which will be established under the Biodiversity Conservation Act. For non-State significant Part 4 development, a BAM assessment will only be necessary if it is likely to significantly affect threatened species.
Proponents required to do a BAM assessment will submit a biodiversity development assessment report with their development application. The report will detail the biodiversity impacts of the development, any proposed measures to avoid and minimise those impacts and the biodiversity credits required to offset residual impacts. Consent authorities will impose any offset requirements as conditions of development consent or approval.
Land Management and Regulatory Map
How do the allowable activities differ from 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 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. Greater flexibility and discretion is provided to landholders and LLS, 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.
Are there limits on the amount of clearing permitted as an allowable activity?
Landholders will be able to impact regulated native vegetation in the course of undertaking a range of low-risk agricultural land management activities that are part of their day-to-day operations.
For the purposes of constructing and maintaining rural infrastructure such as fences and dams, landholders will be required to clear the minimum extent of vegetation necessary. Landholders will also be expected to co-locate infrastructure where possible.
For clarity, the legislation will provide a maximum extent of clearing permitted to construct and maintain infrastructure. The maximum extent permitted varies proportionately to risk. For example, smaller distances are permitted on vulnerable land. The limits on the amount of clearing will be set out in a schedule of the amended Local Land Services Act.
What are the requirements of a set-aside area
In exchange for clearing, some codes will require establishment of a set-aside area, which is an area that must be managed for biodiversity outcomes in perpetuity. Set-asides will be described as a ratio of the area cleared to the area managed.
In developing the codes, the Government has ensured that set-aside ratios are fair and reasonable and do not impose a disproportionate burden on landholders.
Local Land Services will publish guidelines to assist landholders to actively manage set-aside areas to improve their condition. Guidelines will also enable a landholder to understand upfront the costs of managing a set-aside. All set-asides must be in addition to any current publicly funded initiative, offset or other set‑aside and a set-aside requirement can only be discharged on the landholding on which clearing is proposed to be undertaken.
All set-aside areas will be listed on a new public register, and set-aside obligations will bind current and future landholders.
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 LLS.
Landholders can voluntarily enter into a biodiversity stewardship agreement to create an offset site. The gain in biodiversity achieved by protecting and managing the land is calculated using the biodiversity assessment method, and is expressed as credits. These credits can be sold to development proponents to offset biodiversity impacts elsewhere.
How will set-aside areas be Certified?
The LLS may be required to certify clearing under some codes. Certification will be required in all cases where codes impose a set-aside requirement. Codes will also set out any special conditions related to clearing and set-asides will be listed on a public register.
Land on which codes do not apply
There will be some special categories of land on which no clearing under any codes will be permitted, including coastal and Ramsar wetlands, littoral rainforest, core koala habitat, critically endangered ecological communities, old growth forests and high conservation value grasslands. This will be agreed jointly by the Minister for Primary Industries and the Minister for the Environment and will be detailed in the Regulations. Individual codes will also be able to specify additional land that cannot be cleared under the code.
What is the Native Vegetation Regulatory Map and how is it being developed?
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.
A detailed map method statement describes how the best available science and data is being used to prepare the Native Vegetation Regulatory Map. The method statement details the data sources used, including satellite and aerial imagery. It describes how land is mapped as Category 1 (unregulated) or Category 2 (regulated) based on the history of land use, the relevant clearing history of the remaining vegetation, and any sensitive values or existing protections.
The commencement of the native vegetation regulatory map provisions has been deferred to enable further stakeholder consultation. A transitional framework will apply until the map commences. Consultation with key stakeholders will occur in early 2017. Following this consultation, OEH will publish a draft map and landholder review provisions will commence. This will enable all landholders to seek a review of their property before the map commences as part of the new land management framework. The transitional arrangements will continue to apply during this period, and the map will not be used as a regulatory tool.
The transitional period will end when the government publishes a final map.
How will the proposed SEPP (Urban Vegetation) change Council’s existing ability to manage vegetation?
The proposed new SEPP (Urban Vegetation) will not change Council’s existing ability to manage amenity or heritage vegetation, or locally significant biodiversity under their Development Controls Plans (DCPs). The proposed SEPP(Urban Vegetation) will include provisions that will allow councils to regulate the removal of both native and non-native species of trees or vegetation under the authority of a permit or development consent granted by the local council. As with the current framework, the requirement for a permit or development consent would be optional for a council and would be established by the adoption of a DCP.
The proposed new SEPP (Urban Vegetation) will apply to land in Sydney and Newcastle LGAs, all environmental conservation zones, R5 large lot residential zones and urban zones across NSW.
It is intended that the proposed new SEPP (Urban Vegetation) will also include provisions that will establish a more robust scheme for council permits for clearing, including the ability to grant a permit subject to conditions. These provisions will provide councils with a better toolkit for managing local vegetation and deliver improved outcomes for biodiversity conservation.
The proposed new SEPP (Urban Vegetation) will be developed in consultation with local councils and other interested stakeholders in early 2017. It will then be placed on public exhibition.
What is the relationship between the proposed SEPP (Urban Vegetation) and the biodiversity offset scheme?
A further purpose of the proposed SEPP (Urban Vegetation) is to ensure that the biodiversity offset scheme applies to clearing of native vegetation that exceeds scheme thresholds where development consent is not required. For this reason, the proposed SEPP (Urban Vegetation) will require approval under the new Local Land Services Act for clearing of native vegetation that exceeds the BAM thresholds in environmental conservation zones, R5 zones and urban zones, if development consent is not required for the clearing. The Biodiversity Assessment Method (BAM) will apply to this clearing in the same way it does to clearing that exceeds BAM thresholds where development consent is required. The relevant decision-maker will be an independent panel established by the amendments to the Local Land Services Act.
Councils will continue to establish appropriate clearing standards for relevant zones under their Development Control Plans.
Ecologically Sustainable Development
How is the cost of a biodiversity credit calculated under the offsets scheme?
Landholders may decide to generate biodiversity credits by signing up to a biodiversity stewardship agreement. 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 offset site.
Under the reforms, developers will have the option to buy credits directly from landholders or pay into the Biodiversity Conservation Fund. 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 payable by a developer must cover the cost the Biodiversity Conservation Trust will incur to secure the necessary credits.
OEH continues to test and refine the offsets payment calculator, with input from potential future users of the calculator.
Potential users of the scheme will have the opportunity to work with government to test and refine the scheme before it commences. This will provide more detail on the potential impact and benefits of the scheme to different types of development and the environment.
How will the Biodiversity Conservation Trust select offsets?
It is proposed that the Biodiversity Conservation Trust (BCT) will be required to follow the offsets rules, which will be set out in the Regulation.
Under the proposed offset rules, ‘like for like’ offsets must be sought in the first instance. If these offsets are not available, the BCT may use varied offsets or invest in biodiversity conservation actions that benefits the species or ecological community impacted.
Native Plants and Animals
Why is the NSW Government proposing changes to the way it regulates the wildlife rehabilitation sector?
The Independent Panel recognised the important contribution wildlife rehabilitators make to protecting native animals. The Panel recommended the government continue 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.
What is considered a high-risk wildlife activity that would require a licence?
Licensed activities need ongoing regulation from government to manage harm to wildlife populations, animal welfare and human health and safety. Licences will still be used to regulate high-risk interactions with wildlife.
Examples of high-risk wildlife activities include pet shops selling native wildlife, trading in native plants and keeping higher risk reptiles.
There will be requirements to keep records for high-risk activities to support monitoring programs, and a public register is being established for wildlife management.
What is considered a moderate-risk wildlife activity that could be regulated by a code of practice and no longer require a licence?
Interactions with wildlife will be assessed according to their risk to human safety, populations in the wild, and animal welfare.
Some wildlife interactions, that are considered a moderate-risk, will not require a licence or further assessment but may be carried out in accordance with a code of practice.
Keeping certain reptiles as pets is considered a moderate-risk activity that could be regulated by a code and will be explored over the coming months.
Licensing will be retained for situations where there is a risk that a code based regulatory approach may cause any animal species to move toward extinction.
There will be requirements to keep records for moderate-risk activities to support monitoring programs.
What is considered a low-risk wildlife activity?
The Bills propose that certain interactions with native animals can still occur under the new scheme without a licence or compliance with a code of practice.
Exempt activities will be listed in the Regulation, due to be developed in 2017.
One example is managing locally abundant animals, such as purple swamphens, to limit crop damage in some agricultural regions.
How will the wildlife rehabilitation sector be regulated under the new legislation?
The Independent Biodiversity Legislation Review Panel recommended facilitating effective local wildlife care through strategic partnerships with wildlife rehabilitation providers.
The Biodiversity Conservation Bill enables accreditation arrangements to be developed for animal rehabilitation and rescue providers.
The NSW Government will contact the peak body representing the wildlife rehabilitation sector and key licensed individuals in early 2017 to discuss the progress of consultation and assessment already undertaken, with a view to further developing an accreditation program with the rehabilitation sector.
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.
Provisions have been included in the Biodiversity Conservation Bill to support the implementation of an inter-jurisdictional Memorandum of Understanding (MoU) on a Common Assessment Method for listing threatened species and ecological communities
- Enabling the NSW Threatened Species Scientific Committee to assess whether a native NSW species or ecological community is at risk of extinction nationally.
- Adding an ‘extinct in the wild’ category for species to reflect IUCN categories and criteria.
- Enabling the NSW Scientific Committee to initiate a listing following receipt of an assessment completed by a jurisdiction that is a party to the MoU.
- Enabling the NSW Scientific Committee to make a final determination to either accept or reject an assessment completed by a jurisdiction that is a party to the MoU, without the need to make a preliminary determination.
How is Saving our Species supporting the conservation of threatened species in NSW?
Saving our Species is an innovative statewide 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 recovery of threatened species.
- 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.
Unlike previous programs, Saving our Species:
- Aligns everyone’s efforts under a single banner, so investment in threatened species conservation can be accounted for.
- Assigns threatened species to different management streams so the individual requirements of each species can be met.
- Invites the NSW community and businesses to participate, because projects to save threatened species are collaborative efforts.
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 is of the opinion that 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 Bill 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 the appropriate approval (such as a development consent). Any development proposal located on an AOBV must be assessed using the Biodiversity Assessment Method (BAM).
AOBV are excluded from the land management framework set out in the Local Land Services Amendment Bill. This means clearing under the codes is not permitted in an area of outstanding biodiversity value.
The existing critical habitats declared under the Threatened Species Conservation Act 1995 will be declared AOBV under the Biodiversity Conservation Act. These include:
- Mitchell’s Rainforest Snail critical habitat in Stotts Island Nature Reserve.
- Little Penguin critical habitat in Sydney's North Harbour.
- Gould's Petrel critical habitat on Cabbage Tree Island, John Gould Nature Reserve.
- Wollemi Pine critical habitat.
Private Land Conservation
When will the Biodiversity Conservation Trust be established?
The Biodiversity Conservation Trust will be established when the provisions of the Biodiversity Conservation Act commence. The Act is expected to commence on July 1, 2017.
Why is it important to protect biodiversity on private land?
The Independent Panel recognised that engaging private landowners in conservation was an important opportunity as more than 70% of land in NSW is under private ownership or Crown leasehold. Many ecological communities and threatened species are found only on privately owned and managed land. The NSW Government’s goals for conserving biodiversity can only be achieved with the support of private landowners.
A biodiversity conservation investment strategy will guide the government’s investment in biodiversity conservation across NSW. The strategy will guide investment to priority investment areas and will be an important tool in meeting the objects of the Bill to conserve biodiversity at bioregional and state scales and maintain the diversity and quality of ecosystems and enhance their capacity to adapt to change.
Government will consult on a draft biodiversity conservation investment strategy during the first half of 2017.
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.
What is the difference between the three tiers of private land conservation agreements?
A three-tiered system of voluntary private land conservation agreements will be established and will match management needs with funding for landholders. The three tiers are:
- Biodiversity stewardship agreements, also known as Tier 1 agreements, will provide for permanent protection and management of biodiversity and allow for the creation of biodiversity credits.
- Conservation agreements, or Tier 2 agreements, are permanent or time-bound agreements that will be eligible for stewardship payments.
- Wildlife refuge agreements, or Tier 3 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 happens to current private land conservation agreements and will they be able to 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.
The arrangements for converting or upgrading an existing agreement to an equivalent agreement under the Biodiversity Conservation Act will be set out in the regulations, which will be subject to further public consultation. Any conversion will be at the request of the landholder.
What returns can a landholder who participates in the offset scheme expect?
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.