Local governments and certain other government agencies have a statutory responsibility to assess and determine applications when the Biodiversity Offsets Scheme applies.
Local government
The role of local government as a decision maker for development applications (also referred to as local development) under Part 4 of the Environmental Planning and Assessment Act 1979 (NSW) is to:
- assess and determine development applications, including Biodiversity Offsets Scheme relevant applications
- assess a Biodiversity Development Assessment Report submitted with a development application
- determine whether impacts have been adequately avoided and minimised
- determine whether any proposed impacts are serious and irreversible (and, if so, refuse the development application)
- consider other matters relating to the impact of the proposal on biodiversity values and the environment
- condition offset obligations and measures to avoid and minimise biodiversity impacts
- ensure compliance with conditions of consent.
Part 5 activities
Local government is also a determining authority for activities under Part 5 of the Environmental Planning and Assessment Act that they are either carrying out themselves and/or approving. These activities can include essential infrastructure such as roads, railways or utilities.
When considering Part 5 activities, the determining authority must ascertain whether the activity is likely to significantly affect threatened species or ecological communities, or their habitats. See the
Where a significant effect is likely, the determining authority must either:
- opt in to the Biodiversity Offsets Scheme for assessment, or
- complete a species impact statement.
The Biodiversity Offsets Scheme thresholds do not apply to Part 5 activities. A Part 5 activity is likely to significantly affect threatened species if:
- it is carried out in an area of outstanding biodiversity value
- it is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test in section 7.3 of the Act.
The Biodiversity Values Map can be used as information to support consideration of an area of outstanding biodiversity or the test of significance.
If a Part 5 activity is likely to significantly affect threatened species the proponent must prepare a species impact statement and seek concurrence from the Environmental Agency Head or alternatively opt into the scheme, which does not require concurrence.
If the proponent opts into the scheme and a decision has been made to carry out the activity, the credit obligation (and any other actions required) will be included as conditions of approval. The determining authority may increase or decrease the credit obligation set out in the Biodiversity Development Assessment Report. If the obligation is decreased, the determining authority must give reasons.
If the proposed activity is not likely to significantly affect threatened species, the environmental impact of the activity will continue to be assessed in accordance with Division 5.1 of the Environmental Planning and Assessment Act 1979.
Other decision makers
Other decision makers with responsibilities under the Biodiversity Offsets Scheme include:
- the Independent Planning Commission or the Minister for Planning or delegate for state significant development applications under Part 4 of the Environmental Planning and Assessment Act 1979 (NSW)
- the Minister for Planning and Public Spaces for activities under Part 5.1 of the Environmental Planning and Assessment Act
- determining authorities for activities under Part 5 of the Environmental Planning and Assessment Act
- the Native Vegetation Panel for approvals for clearing native vegetation under section 60ZF of the Local Land Services Act 2013 (NSW) and approvals under the State Environmental Planning Policy (SEPP) (Biodiversity and Conservation) 2021
- the Minister for the Environment in relation to:
- biodiversity certification under Part 8 of the Biodiversity Conservation Act 2016 (NSW)
- Biodiversity Stewardship Agreements under Part 5.5 of the Biodiversity Conservation Act.
Other decision makers’ role
Other decision makers receive Biodiversity Assessment Reports as part of an application for a planning, vegetation clearing or other approval. They have the power to:
- critically review and seek clarification or modifications to the Biodiversity Assessment Report before approving (or otherwise) the proposal or Biodiversity Stewardship Agreement application
- consider other matters relating to the impact of the proposal on biodiversity values and the environment.
If they decide to approve the proposal, they may:
- condition measures to avoid or minimise impacts on biodiversity values
- condition an offset obligation as part of the terms of approval.
Legislation and regulation
- Environmental Planning and Assessment Act 1979 (NSW)
- Biodiversity Conservation Act 2016 (NSW)
- Biodiversity Conservation Regulation 2017
- Environment Protection and Biodiversity Conservation Act 1999 (Cth)
- Protection of the Environment Administration Act 1991 (NSW)
- Environmental Planning and Assessment Regulation 2021 (NSW)