About clause 34A certification
Clause 34A certification under the Biodiversity Conservation (Savings and Transitional) Regulation 2017 (NSW) recognises offset arrangements made before the commencement of Part 7 of the Biodiversity Conservation Act 2016 (NSW), which deals with biodiversity assessment and approval under the Environmental Planning and Assessment Act 1979 (NSW).
Transitional arrangements are provided by clause 34A to recognise past offsetting agreements secured as part of a concept plan approval or a relevant planning arrangement.
When clause 34A applies
Clause 34A certification applies if the Secretary of the Department of Planning, Housing and Infrastructure (for concept plans) or the Secretary of the Department of Climate Change, Energy, the Environment and Water (for relevant planning arrangements) or their delegates are satisfied that the:
- biodiversity impacts of the proposed development were satisfactorily assessed before the commencement of the Biodiversity Conservation Act as part of a concept plan approval or a relevant planning arrangement, and
- conservation measures are secured into the future — by a planning agreement, a land reservation or otherwise — to offset the residual impact of the proposed development on biodiversity values after the measures are taken to avoid or minimise those impacts.
Power to certify development under clause 34A
The Secretary of the Department of Planning, Housing and Infrastructure has the power to certify under clause 34A for concept plans and the Secretary of the Department of Climate Change, Energy, the Environment and Water has the power to certify for relevant planning arrangements. They are responsible for the decision to certify:
- proposed development within a concept plan approval that offset residual impacts and was previously determined by the Department of Planning, Housing and Infrastructure under Part 3A of the Environmental Planning and Assessment Act
- proposed development where impacts were previously assessed and offset as part of a relevant planning arrangement.
Clause 34A (3) – concept plan approval
A ‘concept plan approval’ is an approved concept plan whether approved before or after the repeal of Part 3A of the Environmental Planning and Assessment Act in respect of a transitional Part 3A project within the meaning of Schedule 6A to that Act.
Clause 34A (4) – relevant planning arrangement
A ‘relevant planning arrangement’ covers any agreed arrangement made in association with a planning instrument, concurrence or any other application or request under the Environmental Planning and Assessment Act.
A relevant planning arrangement may be part of or include:
- a local environment plan amendment
- a voluntary planning agreement
- a species impact statement concurrence
- a Development Control Plan
- a Part 4 development approval
- a BioBanking statement.
Effect of clause 34A certification
- The Biodiversity Offsets Scheme does not apply to proposed developments certified under clause 34A.
- Non-biodiversity impacts will be assessed under section 4.15 of the Environmental Planning and Assessment Act.
- If a clause 34A certification has been granted, the biodiversity impacts of development are assessed as they would have been before the introduction of the Biodiversity Conservation Act. This includes considering whether there is likely to be a significant impact on threatened species, populations or ecological communities or their habitats in accordance with the now repealed section 5A of the Environmental Planning and Assessment Act (7-part test).
Information about species impact statements under clause 34A
Secretary requirements
When a planning authority determines that a proposal, that is certified under clause 34A, is likely to have a significant impact, participants must prepare a species impact statement.
When a species impact statement is requested under a clause 34A certification, the species impact statement requirements are regulated by Part 6, Division 2 of the repealed Threatened Species Conservation Act. This includes a request to the Secretary of the Department of Climate Change, Energy, Environment and Water for the species impact statement environmental assessment requirements. These are known as the Secretary’s environmental assessment requirements.
Species impact statement concurrence
When a species impact statement is requested under a clause 34A certification, concurrence from the Secretary of the Department of Climate Change, Energy, Environment and Water will continue to be regulated by the now repealed section 79B of the Environmental Planning and Assessment Act. Our assessment:
- will address certain statutory considerations and provisions to determine whether to grant concurrence or not
- may also consider previous voluntary offsets and how those conservation measures have significantly benefited threatened species.
As part of a conditional concurrence under s79B(8A) of the Environmental Planning and Assessment Act, in some cases, we may recommend further conservation actions, including avoidance or mitigation strategies.
Information about clause 34A for planning authorities
Where a clause 34A certification has been issued, planning authorities will assess the biodiversity impacts of a proposed development as they would have before the introduction of Part 7 of the Biodiversity Conservation Act. This includes considering whether there is likely to be a significant impact on threatened species, populations or ecological communities or their habitat in accordance with the now repealed section 5A of the Environmental Planning and Assessment Act (7-part test).
Where a significant impact is determined by the planning authority, a species impact statement will be required, and the proponent will request the environmental assessment requirements from the department.
The department will consider previous offsets on a case-by-case basis when preparing the environmental assessment requirements for the species impact statement.
Biodiversity assessments submitted with a development application after a clause 34A certification is granted
If a certification is granted under clause 34A, your development application will not require assessment under Part 7 of the Biodiversity Conservation Act.
The former planning provisions will apply with respect to biodiversity assessment, and you must submit the development application with the same biodiversity information previously required. This includes a flora and fauna report that considers the now repealed section 5A of the Environmental Planning and Assessment Act previously referred to as the test of significance or the seven-part test.
The consent authority will decide if a significant affect is likely in accordance with the seven-art test. For guidance on how to apply the seven-part test please see the Threatened species assessment guidelines.
If a significant impact is determined, you will require a species impact statement.