Biodiversity Assessment & Approval Pathways

Interim Designated Areas within the RIVERINA REGION

The Minister for Environment has declared seven additional local government areas as Interim Designated Areas: Cessnock, Newcastle, Port Stephens, Lake Macquarie, Maitland, Central Coast and Coffs Harbour. In addition, the West Dapto Urban Release Area in the Wollongong local government area has been declared as an Interim Designated Area.

Former planning provisions continue to apply within Interim Designated Areas. Applications for development consent, or modification to an approved development, under Part 4 of the EP&A Act (not including State Significant Development) will continue to be assessed under former planning provision until the 24 November 2018. This has been extended for three months from 24 August 2018.

‘Opt in' by agreement provisions, set out in clause 28(2) of the Biodiversity Conservation Regulation (Savings and Transitional) 2017, only apply to Part 4 development in limited circumstances.

There are no Interim Designated Areas within the Riverina

This biodiversity assessment and approval pathways flow chart has been developed for Councils located outside a declared IDA

The biodiversity assessment and approval pathways are dependent on the purpose of the vegetation clearing and whether the clearing is associated with:Native or non-native vegetation clearing – native vegetation and native vegetation clearing is defined under Schedule Part 5A, Division 1 Section 60B and 60C of the Act 2013 (LLS Act) and

• A development that requires consent (Part 4 of the Act 1979 (EP&A Act) OR

• A Council activity defined under the 2017 (Infrastructure SEPP) (Part 5 EP&A Act) OR

• where development consent is NOT required (without consent) or is NOT associated with a development, clearing is defined by what zone you are in.

  • If you are within a Non-rural Zone, vegetation clearing is regulated under the 2017 (Vegetation SEPP) OR

  • If you are within a Rural Zone, vegetation clearing is regulated under Act 2013 (LLS Act).

Once you know which approval pathway you are in, the next step is to identify whether the proposed clearing is above or below the Biodiversity Offset Scheme threshold.

The Biodiversity Offset Scheme threshold (BOS) Threshold is a test used to determine when is necessary to engage an accredited assessor to apply the Biodiversity Assessment Method (the BAM) to assess the impacts of a proposal.

If clearing and other impacts exceeds the trigger thresholds, the BOS applies to the proposed development and a Biodiversity Development Assessment Report (BDAR) must be prepared and submitted with their application.

The consultant authority must consider the information in the BDAR when deciding whether to approve the development proposal and any appropriate conditions to mitigate the identified impacts.

Proponents will need to supply evidence relating to the triggers for the Biodiversity Offsets Scheme Threshold and the test of significance (where relevant) when submitting their application to the consent authority.

There are three triggers into Biodiversity Offsets Scheme:

1. Located on Biodiversity Values map

2. Area clearing threshold

3. Threatened species ‘Test of Significance’

1. Is the proposed clearing within (partially or wholly) on an area mapped on the biodiversity values map published by the Minister for Environment?

A review of the proposed area of clearing and whether it is located within land identified with high biodiversity values on the Biodiversity values map should be undertaken.  https://www.lmbc.nsw.gov.au/Maps/index.html?viewer=BVMap

If the proposed clearing is within an area identified of high biodiversity value (as shown in orange on the map), a biodiversity development assessment report (BDAR) must be prepared in accordance with the Biodiversity Assessment Method (BAM) by an accredited assessor.

• For local development (Part 4 of the Act 1979), the BDAR must accompanying the Development Application.

• For clearing not associated with a development (Vegetation SEPP), this triggers approval by the Native Vegetation Panel for the proposed clearing.

NOTE 1 : The BOS also applies to activities within the BVM not related to vegetation clearing that have prescribed impacts as defined under Clause 6.1 of the Biodiversity Conservation Regulation 2017.

NOTE 2: Declared Areas of Outstanding Biodiversity Value (AOBV) are included within the Biodiversity Values Map. There are currently no declared AOBVs within the Hunter Region.

2. Does my proposed clearing trigger the area clearing threshold? 

The area threshold applies to all proposed native vegetation clearing associated with a proposal, regardless of whether this clearing is across multiple lots. In the case of a subdivision, the proposed clearing must include all future clearing likely to be required for the intended use of the land after it is subdivided.

The area threshold varies depending on the minimum lot size. The minimum lot size is based on the Lot Size maps under your Councils Local Environmental Plan (LEP), or is the actual lot size where there is no minimum lot size specified for the land under the LEP.

If the proposed clearing is above the clearing threshold for your minimum lot size (as specified in the table), a biodiversity development assessment report (BDAR) must be prepared in accordance with the Biodiversity Assessment Method (BAM) by an accredited assessor.

For local development (Part 4 of the Act 1979), the BDAR must accompanying the Development Application.

For clearing not associated with a development (Vegetation SEPP), this triggers approval by the Native Vegetation Panel for the proposed clearing.

Clearing below the BOS threshold 

3. Threatened species ‘test of significance’

The threatened species ‘test of significance’ (5 part test) is used to determine if a development or activity is likely to significantly affect threatened species or ecological communities, or their habitats. It is applied as part of the Biodiversity Offsets Scheme (BOS) entry requirements for Part 4 local developments and for Part 5 activities under the  Act 1979.

The test of significance is set out in Section 7.3 of the Act 2016.  Consideration of the test of significance include:

For Part 4 local developments (not including Major Projects)

• If the ‘test of significance’ assessment indicates that there will be a significant impact, the proposal triggers the BOS and the proponent must carry out a BAM assessment. The outcomes of the assessment should be included in the Biodiversity Development Assessment Report (BDAR) and must be provided to the consent authority.

• The consent authority must consider the information in the BDAR when deciding whether to approve the development proposal and any appropriate conditions to mitigate the identified impacts.

• The environmental impact of proposals that do not exceed the Biodiversity Offset Scheme Threshold and have been assessed to not have a significant impact on threatened species will continue to be assessed under Section 4.15 (formerly Section 79C) of Act 1979.

For Part 5 activities

• The ‘test of significance’ must be applied to determine whether the proposed activity is likely to significantly affect threatened species or ecological communities, or their habitats. If the activity is likely to have a significant impact, or will be carried out in a declared area of outstanding biodiversity value, the proponent must either apply the Biodiversity Offsets Scheme or prepare a species impact statement (SIS).

• You can find out more information on the assessing biodiversity impacts of Part 5 activities and transitional arrangements on the OEH webpage.

Biodiversity Offsets Scheme Entry Tool 

OEH have developed an on-line Biodiversity Offsets Scheme Entry Tool  which is available to assist developers, landholders and consent authorities determine whether the proposed clearing will be above or below the area thresholds or lies within an area mapped as having high biodiversity value.

The tool generates a report that can be supplied with a development application or vegetation clearing permit application to identify whether the proposed clearing (or prescribed impacts) are within an area on the Biodiversity Values Map. A BOSET user guide has been developed by OEH for this tool.

Serious and Irreversible Impacts (SAII) 

The Biodiversity Offsets Scheme (BOS) recognises that there are some impacts that the community expects will NOT occur. The concept of Serious and Irreversible Impacts (SAII) is fundamentally about protecting threatened entities that are most at risk of extinction from potential development.

The principles for determining serious and irreversible impacts are detailed in the OEH SAII guidance document which provides guidance, criteria and lists of SAII candidates. The most current list of SAII candidates and triggers should be referenced from the NSW BioNet.

Key Council considerations for SAII

• Council is responsible for deciding whether there is a serious and irreversible impact from a proposed local development (Part 4 of the Act 1979 (EP&A Act)) or Council activity (Part 5 of the EP&A Act).

• Council may want to consider developing a Council process for review and determination of local developments and/or Council activities likely to have a SAII.

• Council MUST refuse a Part 4 local development where a Serious and Irreversible Impact (SAII) is identified.

Vegetation Clearing NOT associated with development consent

If vegetation clearing is not associated with a development consent or an activity, the approval pathway is defined by the zoning of the land.

If the land is zoned rural (RU1, RU2, RU3, RU4 or RU6) then the provisions of the LLS Act can be used

• Advice should be sought from Local Land Services (LLS) for any clearing proposed on land within these zonings.

• Land in NSW is categorised into three main categories including Category 1 (exempt land), Category 2 (regulated land) and excluded land (regulated by Vegetation SEPP)

• A Native Vegetation Regulatory (NVR) Map has been developed which identifies rural land that is regulated under the new land management framework. Landholders can view the categories of vegetation as depicted on the regulatory map for their property. Category 1 and 2 lands are currently not included on the NVR Map.

• If your property is located within Category 2 – regulated land, you will need to identify which Allowable Activity zone (as defined under Schedule 5A, Part 1, 3(a) of the LLS Act) your Council is located in.

If the land is zoned non-rural then the provisions of the 2017 (Vegetation SEPP) and the Council Development Control Plan (DCP) applies

Advice should be sought from your local Council for any clearing proposed on land within these zonings.

Even though authority may not be required under the (Vegetation SEPP) Act 2013 (LLS Act), to avoid committing an offence under the Biodiversity Conservation Act 2016 (BC Act), a Threatened species licence, a class of biodiversity conservation licence under Part 2 of the  Act 2016 (BC Act) may still be required from the Office of Environment and Heritage (OEH).

If your proposed vegetation clearing will:

• impact on a threatened species, ecological community or protected plant;

• impact on the habitat of a threatened species or ecological community; or

• cause harm to an animal that is a threatened species, part of a threatened ecological community or a protected animal.

In addition, consideration of any other permits and/or approvals would be required by the landholder such as (but not limited to):

• any permits / approvals for impacting waterways including aquatic ecology under the Fisheries Management Act 1994 and Act 2003; Water Management

• requirement for ecological advice including an assessment of significance for impacts on matters of National Environmental Significance (MNES) under the Commonwealth Act 1999 (EPBC Act).