Biodiversity in New South Wales – keeping up with change

At Sargeant Planning, we provide expert advice on assessing the biodiversity of development sites.

This is an important precursor to navigating the environmental impact assessment process under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). We are also expert at applying these skills across State systems in the Northern Territory, Queensland and New South Wales. Complementary to this, is our expertise in flora and fauna surveying, specifically for threatened species.

This article focuses on the New South Wales (NSW) environmental impact assessment processes under the Biodiversity Conservation Act 1999 (BC Act) and the associated Biodiversity Assessment Method (BAM). We also identify a number of recent decisions of the Land and Environment Court (LEC).

The BAM was set up to assess impacts on threatened species, ecological communities and their habitats and biodiversity values, where required under the Biodiversity Conservation Act 2016, Local Land Services Act 2013 or the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017.

Biodiversity assessment

The BAM (Biodiversity Assessment) assists with quantifying biodiversity values on land that is proposed for:

• development that requires consent under Part 4 of the Environmental Planning and Assessment Act 1979 (EP&A Act) 
• an activity that requires approval under Part 5, Division 5.1 of the EP&A Act (where the proponent has opted in to the Biodiversity Offsets Scheme)
• development that requires approval under Part 5, Division 5.2, of the EP&A Act
• clearing that requires approval under Part 5A of the Local Land Services Act 2013 (LLS Act); or a permit under the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP)
• biodiversity certification in the case of an application for biodiversity certification under the Biodiversity Conservation Act 2016 (BC Act)
• a biodiversity stewardship site in the case of an application for biodiversity stewardship agreement under the BC Act.

The importance of using accredited consultants

An accredited assessor must apply the BAM. The NSW accreditation body has recently re-accredited our Company Director, Boyd Sargeant, as a qualified assessor.

The assessor’s job is to document the results of the biodiversity assessment in a Biodiversity Assessment Report (BAR).  An assessor will create different BARs depending on the type of assessment undertaken. For example, a Biodiversity Development Assessment Report (BDAR) or Biodiversity Certification Assessment Report (BCAR) identifies:

• how the proponent proposes to avoid and minimise impacts
• potentially serious and irreversible impacts, and 
• the offset obligation required to offset the likely biodiversity impacts of the proposed development, activity, clearing or biodiversity certification expressed in biodiversity credits.

The role of councils

When making decisions on development applications under the EPA Act, Councils consider the likely impact of the proposed development on biodiversity values. Where an approval is issued, Councils require the retirement of biodiversity credits as assessed in the BDAR. Councils may also reduce or increase the number of biodiversity credits to be retired.

A key element of the BAM and role of the assessor is the application of the avoid, minimise and offset hierarchy. The courts have reflected this hierarchy principle in a number of recent cases.

Biodiversity case law

First, there must be avoidance of impacts. Second, there should be minimisation of impacts, and as a last resort, offsets.

Two relevant cases which deal with these principles include:

• Planners north v Ballina Shire Council 2021 NSWLEC 120 and
• Tomasic v Port Stephens Council (2021) NSWLEC 56.

Planners north v Ballina Shire Council 2021 NSWLEC 120

This appeal related to a deemed refusal of a Manufactured Home Estate in low lying land. The land was subject to inundation and contained coastal wetlands. The court found the applicant did not adequately avoid impacts from the development on the site’s biodiversity values.

The court also identified that the impacts to the coastal wetland communities, including 3 Endangered Ecological Communities, would be ‘serious and irreversible and likely to contribute significantly to the risk of a threatened species or ecological community becoming extinct’. This was based on clause 6.7(a) and (b) of the Biodiversity Conservation Regulation 2017 which states:

Clause 6.7 (2) An impact is to be regarded as serious and irreversible if it is likely to contribute significantly to the risk of a threatened species or ecological community becoming extinct because:

(a) it will cause a further decline of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to be in a rapid rate of decline, or

(b) it will further reduce the population size of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to have a very small population size,…

You can read more about this case at Lexology – a recognised source of international legal updates, analysis and insights.

Tomasic v Port Stephens (2021) NSWLEC 56

In Tomasic v Port Stephens Council, the court considered the refusal of an 11 lot subdivision and tree removal. The tree removal involved clearing the majority of EEC on site. The court upheld the refusal. It found that the impacts on biodiversity were unacceptable. It also found that Tomasic had not taken all appropriate avoidance and minimisation measures.

Chief Justice Preston stated that the biodiversity mitigation hierarchy requires:

‘in order, avoiding impacts, minimising impacts and only then offsetting or compensating for residual impacts that remain after all steps are taken to avoid or minimise these impacts’.

Read more about this case on the NSW Government’s Case Law website.

Case law continues to inform and guide the impact assessment process and application of the BAM. The BC Act does not contain specific guidance on the extent of avoidance and minimisation which is necessary. 

Sargeant Planning’s qualified planners, ecologists and accredited assessor can assist you in navigating the complex NSW planning process. We consider biodiversity matters as an important part of preparing development concepts and applications.