Concurrence requirements for a reduced credit obligation

If a decision maker wants to approve a development (other than state significant development) under Part 4 of the Environmental Planning and Assessment Act 1979 (NSW) with a lower credit obligation than described in a Biodiversity Development Assessment Report, concurrence is required from the department. 

Concurrence granted for a reduced credit obligation only applies to an offset obligation under the Biodiversity Offsets Scheme and the Environmental Planning and Assessment Act. 

Concurrence decisions are made based on the merits of each individual development. 

Reducing a credit obligation results in a net loss of biodiversity across New South Wales. Discounting is discouraged as it undermines the purpose of the Biodiversity Conservation Act 2016 (NSW) and the integrity of the Biodiversity Offsets Scheme. 

The department is committed to applying the Biodiversity Offsets Scheme and supporting the Biodiversity Conservation Act. 

Concurrence decision process  

The Biodiversity Conservation Act establishes the framework for considering a reduced credit obligation before determination of the development application. 

If concurrence is granted by the department and the decision maker approves the development application, then the reduced credit obligation will be in the conditions of consent. 

When considering concurrence for a reduced credit obligation, the department assesses: 

• the Biodiversity Development Assessment Report and the impacts on biodiversity values that would not be offset 
• additional assessment reports prepared by or on behalf of the proponent 
• whether the details outlined in the request facilitate the principles of ecologically sustainable development. 

The Biodiversity Offsets Scheme adopts the principles of ecologically sustainable development established in the Protection of the Environment Administration Act 1991 (NSW), summarised as: 

1. the precautionary principle 
2. intergenerational equity 
3. conservation of biodiversity and ecological integrity 
4. improved valuation, pricing and incentives. 

Community impact 

Biodiversity and environmental resources are community assets. A reduced credit obligation equates to a permanent loss of biodiversity at a local, regional and/or state-wide scale. When a reduced credit obligation is granted, the community loses part of this asset. The value of this asset is effectively transferred to a private body, reducing the costs of their development. 

To effectively integrate social, economic and environmental considerations in concurrence decisions, the department requires long-term community gains at both regional and state-wide scales, that significantly outweigh biodiversity loss, consistent with ecologically sustainable development principles.  

Community benefit is evaluated 

Requests for reduced credit obligations are evaluated based on their community benefit against each of the four principles of ecologically sustainable development. 

Applicants should apply the ‘avoid, minimise, offset’ hierarchy to their proposals.  If the department is not satisfied that the development has been planned to avoid and minimise impacts on biodiversity values, concurrence may not be granted. When assessing proposed credit reductions, the department evaluates project biodiversity costs relative to overall project costs and profits. 

Requirements for scheme participants seeking concurrence  

Requests for a reduced credit obligation must be made to the decision maker at the time of lodging a development application before approval is granted. A request must be made in writing and demonstrate the proposed community benefits of the development. 

The request must include the following information: 

• the credit obligation from the Biodiversity Assessment Method in the Biodiversity Development Assessment Report 
• the like-for-like biodiversity credits intended to be offset
• any credits intended to be offset using variation rules with evidence of reasonable steps taken to find like-for-like offsets
• credits that would not be offset due to the reduced obligation. 

Your letter must justify community gains delivered by the project and provide: 

• the community’s social and economic profile, with reliable, peer-reviewed sources 
• an outline of the community gain from the project 
• an analysis of spatial and temporal scale and distribution of community gain with evidence from a qualified professional 
• an outline of how the community gain will be delivered and who will be responsible 
• alignment with regional social and economic priorities 
• a full financial statement detailing costs and returns for the project, including profit margin, validated by a qualified professional 
• a statutory declaration confirming financial statement accuracy and supporting community gain evidence. 

If your request for a reduced credit obligation is supported by the decision maker, they may seek concurrence from the department.

The department may consider additional assessment reports by the developer. 

When a decision maker requests concurrence, a concurrence fee applies and must be paid electronically on the NSW Planning Portal.

Information for decision makers  

When a proponent applies for a reduced credit obligation, the decision maker must: 

• forward the development application and supporting information to the department within 10 days using the NSW Planning Portal
• notify the department whether it supports a reduced credit obligation and is seeking concurrence within 30 days of the development application being lodged, including the proposed credit reduction and reasons. 

If the decision maker rather than the proponent is proposing a credit reduction, the decision maker must forward the development application to the department within 14 days of lodgement and include the reasons for the proposed reduction. 

The concurrence fee is payable to the department when the decision maker requests concurrence, with notification to the proponent of the fee payable on the NSW Planning Portal.

The department must notify the decision maker of the decision to grant or refuse concurrence within 21 days of receiving all the submissions (or, if no submissions are made, within 21 days of being informed that no submissions were made). 

The department may: 

• consider requests for concurrence submitted outside the timeframes set out on this page 
• ‘stop the clock’ to request additional information and issue a formal request with a return timeframe. 

If the decision maker withdraws support for a reduced credit obligation, they must notify the department.

If you have any questions about the process for seeking a reduced credit obligation, please email the department at [email protected].

Legislation

• Environmental Planning and Assessment Act 1979 (NSW)
• Biodiversity Conservation Act 2016 (NSW)
• Protection of the Environment Administration Act 1991 (NSW)
• Environmental Planning and Assessment Regulation 2021 (NSW)