Posted on July 18, 2024 by Katie Mortimer

ALERT – NSW Government announces significant amendments to biodiversity legislation to make NSW contribute to ‘nature positive’

The NSW Government has released its response to the statutory reviews of the Biodiversity Conservation Act 2016 (BC Act) and native vegetation provisions of the Local Land Services Act 2013 (LLS Act): the ‘NSW plan for nature’ (Response).

Significant legislative amendments are foreshadowed that will reform NSW’s approach to managing biodiversity from one of ‘no net loss’ to one of overall ‘net positive’ outcomes. No timeframe has been provided for the amendments.

Background 

The BC Act and amendments to the LLS Act commenced in August 2017, creating a new system for land management and conservation in NSW. These reforms were intended to establish a framework to ‘avoid, minimise and offset’ impacts on biodiversity.

In August 2023, an independent review found that 5 years on from its commencement, the BC Act was ‘not meeting its primary purpose of maintaining a healthy, productive and resilient environment, and is never likely to do so’. 

In the Response, the Government has agreed that the BC Act is not meeting its primary purpose and that ‘substantial amendments are required to support our ambition to set nature on a path to recovery’. 

Amendments to the BC Act 

The Government is proposing to rewrite the objects and ‘architecture’ of the BC Act to align with the ambition of the Global Biodiversity Framework and give effect to a nature positive approach.

22 Government actions are proposed:

1. Amend and strengthen the Biodiversity Conservation Act 2016
2. Strengthen the application of Ecologically Sustainable Development
3. Review relevant legislation to strengthen biodiversity outcomes
4. Report on government biodiversity impacts and outcomes
5. Develop and implement the NSW Nature Strategy
6. Identify and map areas of high biodiversity value
7. Front-load nature and biodiversity considerations in regional planning
8. Improve bio-certification to drive better strategic land-use planning outcomes
9. Improve biodiversity outcomes from the Biodiversity Offsets Scheme
10. Support a functioning biodiversity credit market
11. Increase efficiency and transparency of the Biodiversity Offsets Scheme
12. Better balance the application of the Biodiversity Offsets Scheme with biodiversity risks
13. Improve species and ecosystem programs
14. Coordinate the approach to listing threatened species and ecological communities
15. Expand private land conservation initiatives
16. Improve and upgrade biodiversity data gathering and management
17. Deliver decision-ready information and tools
18. Improve data quality, accessibility, sharing and custodianship
19. Establish a natural capital accounting framework
20. Build landholder capability to embed practice change and boost participation
21. Diversify and expand access to conservation and natural capital investments
22. Support growth of robust natural capital markets

Key Actions 

Action 1, amending and strengthening the BC Act, outlines revising the objects of the BC Act to support the Government’s ambition to set nature on a path to recovery. The Response states that the Government will work with experts and stakeholders to identify other potential amendments to the operative provisions of the BC Act to support the revised objects.

Action 5 outlines the preparation and publication of a NSW Nature Strategy that will be a legal requirement under the BC Act. The Response states the public will be consulted on the preparation of this strategy, and it will set goals and targets for conservation and restoration.

Action 6 outlines the mapping of current and future high biodiversity value to provide clear guidance to the community and decision-makers about areas where biodiversity impacts should be avoided. It is not presently clear to us how this map will differ from the current ‘Biodiversity Values Map’ made under the Biodiversity Conservation Regulation 2017.

Action 9 is directed to changes to the Biodiversity Offsets Scheme (BOS) which the Response acknowledges has been critiqued by a range of reviews and inquiries. The Response commits offsets to being a ‘genuine last resort’ and states the Government will ensure the offset hierarchy (avoid, minimise and then offset) is applied. We have previously commented on how this mitigation hierarchy has more teeth than many proponents appreciate, but that decision makers are given a wide discretion as to what constitutes reasonable avoidance – see here.

Changes outlined in Action 9 are that:

• the BC Act will be amended to require the BOS to transition to overall ‘net positive’ outcomes over time, going beyond the current ‘no net loss’ standard
• a new statutory standard will be introduced, requiring proponents to demonstrate how they have genuinely avoided and minimised impacts to biodiversity, with a focus on avoiding impacts on entities at risk of a serious and irreversible impact
• a new public register will provide transparency regarding ‘avoid’ and ‘minimise’ measures for approved developments
• stronger and clear guidance will be provided to support decision-makers in determining serious and irreversible impacts on biodiversity
• updates will be made to the way in which credit obligations are calculated for areas of high biodiversity value, consistent with the outcomes of the 5-year review of the Biodiversity Assessment Method

At the same time as seeking offsetting be a last resort, the Response comments that some impacts are unavoidable and for that reason the NSW Government will support transparent, rigorous offsetting as set out in Action 10.

Action 11 includes the insertion of powers to the BC Act to allow directions to be issued to accredited assessors as to the application of the Biodiversity Assessment Method and preparation of biodiversity assessment reports.

Action 12 states that scheme entry thresholds will be changed to remove ‘small, low-impact local developments and clearing proposals’ under the State Environmental Planning Policy (Biodiversity and Conversation) 2021, which will presumably reduce the number of applications being determined by the Native Vegetation Panel.

Amendments to the LLS Act 

In August 2023, an independent review of the LLS Act found that the objectives and provisions of Part 5A of the LLS Act (which govern the management of native vegetation) remained valid but made recommendations to improve native vegetation outcomes (LLS Review).

The Response states that the Government will implement the recommendations of the LLS Review and adopt additional actions to seek to stop excess land clearing.

Actions are proposed to:

• amend the Land Management (Native Vegetation) Code 2018 (Code) to reduce areas approved to be cleared
• reinstate caps on equity clearing (which allows for paddock trees and associated ground cover of a certain scale to be cleared without approval)
• finalise the Native Vegetation Regulatory Map (which designates land as either regulated or exempt) to assist landholders understand the categorisation of their properties. This is intended to end high levels of unallocated clearing.
• require landholders to notify Local Land Services or obtain approvals from Local Land Services for all parts of the Code

The Response does not include a timeframe for the amendments to the BC Act and LLS Act to be made. We will post further as more information is made available.

You can read the Response here: NSW plan for nature: NSW Government response to the reviews of the Biodiversity Conservation Act 2016 and the native vegetation provisions of the Local Land Services Act 2013

You can read our earlier post on the review of the BC Act here: Findings of the Independent Review of the Biodiversity Conservation Act 2016

If you wish to discuss this post please contact Katie Mortimer on 8235 9716.