EPAA and Biodiversity Interaction with State Policies

  • Interacts with:
    • State Environmental Planning Policy (Biodiversity and Conservation) 2021
    • State Environmental Planning Policy (Resilience and Hazards) 2021
    • Biodiversity Conservation Act 2016

State Environmental Planning Policy (Biodiversity and Conservation) 2021

  • Overview:

    • Places additional restrictions on development that might impact biodiversity, habitats, or heritage. Key areas affected include:
    • Koalas (Chapters 3, 4)
    • Clearing native vegetation in non-rural areas (Chapter 2)
    • Sydney Harbour and other regulated catchments (Chapter 6)

  • Koalas Regulations:

    • No consent for land development unless examined for potential koala habitat.
    • If identified as core koala habitat, a management plan must be prepared; professional evaluations are required.
    • Landowners can sell land containing koala habitat to the NSW Government, as detailed in the NSW Koala Strategy (https://www.environment.nsw.gov.au/topics/animals-and-plants/threatened-species/programs-legislation-and-framework/nsw-koala-strategy).

State Environmental Planning Policy (Resilience and Hazards) 2021

  • Section 2.8 Requirements:
    • A consent authority cannot grant consent for development identified as “coastal wetlands” or “littoral rainforest” unless satisfied that sufficient measures have been taken to protect and enhance the ecological integrity of these areas.
    • Noteworthy case: Planners North v Ballina Shire Council [2021] NSWLEC 120 (LEC not satisfied with measures in this instance).

Biodiversity Conservation Act 2016

  • Development Assessment Requirements:

    • Requires environmental assessment for significant impacts on threatened species.
    • Threatened species includes:
    • Critically endangered species
    • Endangered species
    • Vulnerable species, all listed in Schedule 1.
    • A ‘significant impact’ is determined per criteria outlined in Section 7.3.
    • See the Test of Significance Guidelines (https://www.environment.nsw.gov.au/-/media/OEH/Corporate-Site/Documents/Animals-and-plants/Threatened-species/threatened-species-test-significance-guidelines-170634.pdf).

  • Implications for Environmental Impact Statements (EIS):

    • Impacts on threatened species are relevant for EIS consideration and could ground a refusal of development consent even if deemed not ‘significant.’
    • Key case: McCloy Project Management Pty Ltd v Lismore City Council [2023] NSWLEC 1371.

Impacts on Threatened Species (EPAA Part 4 Development)

  • Assessment Process:

    • Impacts categorized as ‘significant’ assessed via a Biodiversity Development Assessment Report (BDAR) as per Section 7.7; regulations 6.8, 6.8A.
    • BDAR assesses biodiversity values according to the Biodiversity Assessment Method (BAM).
    • Must outline measures to avoid/minimize impacts before assessing compensation credits needed:
      • See Section 6.12 for further details.

  • EIS Correspondence:

    • A BDAR must be adequate to support conclusions about ‘significance’. Example case: Sandy Outlook Pty Ltd v Ku-ring-gai Council [2021] NSWLEC 1519.
    • Guidelines on offset schemes and BDARs available at (https://www.planningportal.nsw.gov.au/major-projects/assessment/policies-and-guidelines/key-guidance/biodiversity).

Biodiversity Stewardship Sites (BCA Part 5)

  • Registration Process:
    • Landowners can register their land as biodiversity stewardship sites by forming agreements with the Minister.
    • Applications require an assessment report from an accredited person, detailing biodiversity values according to BAM, proposed management actions, and potential credits.
    • Implementation of management actions may generate biodiversity credits that can be sold to offset residual impacts from other developments.

Evaluation of Impacts

  • Consent Authority Responsibilities:

    • Must consider BDAR (Section 7.13).
    • If a Part 4 development is likely to cause serious and irreversible impacts on biodiversity values, it must be refused as per Section 7.2.

  • Definitions and Criteria:

    • Biodiversity values defined in Section 1.5 and BC Regulation 2017 Regulation 1.4.
    • Serious and irreversible impacts indicate that effects persist after proposed avoidance/minimization strategies (Section 7.16(1)).
    • Criteria for evaluating ‘serious and irreversible’ impacts in BC Regulation 6.7.

  • Special Note:

    • For SSD, SSI, or Part 5 projects, this is a consideration without default prohibition.

Serious and Irreversible Impacts Example

  • Planners North v Ballina Shire Council [2021] NSWLEC 120 - Findings include:

    • Adverse effects on vegetation integrity, habitat suitability, and species movement.
    • Proposed site development plans included complete clearing of native vegetation, construction of buildings, roads, and were turned into a manufactured home estate.

  • Biodiversity Values Implications:

    • Loss of endangered ecological communities, fragmentation of habitats leading to reduced species abundance, impediments to habitat connectivity, and adverse impacts on water sustainability due to landfill changes.

Biodiversity Offsets Requirements

  • Offset Purchases:

    • Conditions may require purchasing ‘biodiversity credits’ for residual impacts that cannot be avoided or mitigated, as per Section 6.3A.
    • Calculated as per the biodiversity offsets scheme detailed in Part 6 (https://www.environment.nsw.gov.au/topics/animals-and-plants/biodiversity-offsets-scheme/about-the-biodiversity-offsets-scheme).
    • Applicant can buy credits from registered Biodiversity Stewardship Sites that possess ‘like for like’ values (simultaneously threatened species/economic type), as discussed in sections and regulations 6.4, 6.4(4).

  • Alternate Solutions:

    • A requirement to retire biodiversity credits can be satisfied with prescribed biodiversity conservation actions (Section 6.29A).

Mitigation and Avoidance

  • Bulga Milbrodale Progress Association Inc v Minister for Planning [2013] NSWLEC 48:
    • Strategies for avoiding impacts involve planning and intelligent site selection or project design.
    • Mitigations may include preventing offsite effects like weed invasion or altered hydrological processes.
    • Offsets are considered only after full exhaustion of avoidance and minimization measures.
    • Relevant case references: Denoci Pty Ltd v Liverpool City Council [2020] NSWLEC 102; IRM Property Group (No. 2) Pty Ltd v Blacktown City Council [2021] NSWLEC 1306.

Indirect Offsets for Biodiversity Conservation

  • Alternatives for procuring offsets include (Sections 6.4; Regulation 6.2):
    • Monetary payments to the Biodiversity Conservation Fund (Section 6.30).
    • Actions aimed at conserving or enhancing biodiversity, educational initiatives, and supporting government biodiversity conservation programs.
    • Biodiversity Conservation Trust undertakes to seek and fund suitable ‘like-for-like’ credits.

Offset Ratios in Biodiversity Conservation

  • Net Positive Outcomes Requirement:
    • Under the BCA, offset schemes must yield net positive biodiversity outcomes.
    • No definitive ratio exists, but common ratios range from 3:1 up to 6:1. In specific cases, such as Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council & Stoneco Pty Ltd (No 2) [2010] NSWLEC 104, a 10:1 ratio was mandated.
    • Adjustments in ratios are subject for debate (e.g., Gunlake Quarries Pty Limited v The Minister for Planning [2022] NSWLEC 1570).

Offset Conditions Examples

  • Biodiversity Management Plan:
    • Conditions can include grazing management, habitat augmentation, revegetation efforts, invasive species management, and fire management as seen in Wollar Progress Association Incorporated v Wilpinjong Coal Pty Ltd [2018] NSWLEC 92.

Koala Protection Measures

  • Upper Mooki Landcare Inc v Shenhua Watermark Coal Pty Ltd and Minister for Planning [2016] NSWLEC 6: Mitigation strategies in the Koala Management Plan include:
    • General protections for koalas, installation of koala-proof fencing, and bespoke road design.
    • Provisions for pest management, health monitoring within project boundaries, protections against drought, and public education.
    • Furthermore, management actions such as staged translocations, habitat revegetation and restoration, and comprehensive performance monitoring are mandated.

Henry Review of the BCA (2023)

  • Main Findings:

    • The BCA is not achieving its objectives; biodiversity remains unprotected.
    • There are competing objectives from other legislation (e.g., EPAA).
    • Emphasizes the need for a paradigm shift in public policy towards ‘nature positive’ initiatives.
    • Advocates for urgent actions to restore biodiversity and frameworks that prioritize environmental repair.

  • Quote from the Review:

    • "… The case for giving primacy to environmental repair is inescapable. Our future depends upon it."

Offsets Analysis

  • Recommendations:
    • Biodiversity offset schemes face challenges in credit supply due to increased demand from infrastructure projects.
    • A need for earlier consideration of environmental impacts in the development approval process.
    • Integrity issues with the Biodiversity Offsets Scheme due to reliance on the Biodiversity Conservation Fund rather than direct sourcing of credits.

Nature Positive Aim

  • The Review stresses a shift towards a ‘nature positive’ approach that commits to restoring biodiversity and halting loss.
  • Acknowledges that current and future generations share the responsibility for ecological degradation and emphasizes the need for rigorous biodiversity standards.

NSW Plan for Nature (July 2024)

  • Goals:
    • Advocate for proactive biodiversity strategies at a landscape scale.
    • Commit to reforms in native vegetation codes and a comprehensive rewrite of the BCA.
    • Emphasize integrated approaches to enhance biodiversity under intersecting laws.
    • Promises for improving ecosystem recovery and the restoration of critical fluvial ecosystems, focusing on major natural capital investments including blue carbon projects.

Recent Changes to Biodiversity Offsets Scheme (BCA)

  • Updates:
    • Section 6.2A mandates a transition to net positive biodiversity outcomes. A strategy supported by public consultations is forthcoming.
    • Defines a hierarchy that directs how proponents handle biodiversity impacts, establishing a procedural framework for avoiding, minimizing, and compensating for them (Section 6.3A).

Biodiversity SODAs (BCA Regulation 6.3A)

  • Strategic Offset Delivery Agreement (SODA):
    • New offset pathway for major energy transition projects that allow proponents to enter SODAs with the government, covering required offsets as part of their conditions.
    • The Environment Agency Head is responsible for specified actions within the SODA, while the proponent bears costs.

EPAA Part 5 Overview

  • Significant Environmental Impact Definition:

    • Activities likely to significantly affect the environment include impacts on threatened species.
    • EIS must be paired with a BDAR when offsets are sought or a Species Impact Statement (SIS) if not (Section 7.8).
    • SIS content is as per Regulation 7.6.

  • Approval Process:

    • Concurrence required from the Environment Agency Head, not necessary with a provided BDAR.
    • Offset scheme regulations apply as per Section 7.15; consideration of ‘serious and irreversible’ impacts as covered in Section 7.16.

SSD and SSI Requirements (Section 7.9)

  • Application Necessity:
    • Must include a BDAR unless the Planning Agency Head assesses no significant impact is foreseen from biodiversity values.
    • Offset scheme provisions apply as per Section 7.14; serious and irreversible criteria again for consideration as per Section 7.16.