BAM! Implications of the Biodiversity Conservation Act 2016 on the assessment of development applications

The Biodiversity Conservation Act 2016 (NSW) (BCA) commenced on 25 August 2017 and with it commenced a restructure to the assessment of biodiversity impacts under New South Wales planning law. Among the raft of changes is the introduction of biodiversity development assessment reports (BDARs) which replace species impact statements under the now repealed Threatened Species Conservation Act 2005 (NSW).

The pre-BCA scheme will still apply if a development application is caught by the transitional provisions of the Biodiversity Conservation (Savings and Transitional) Regulation 2017 (NSW) which include:[1]

  • development applications (including for modifications) made, but not finally determined, before the commencement of the BCA; and
  • development applications (including for modifications) in local “interim designated areas”[2] made within 15 months after the commencement of the BCA.

In this blog we take a look at:

  • when a BDAR is required for developments under Part 4 of the Environmental Planning and Assessment Act 1979 (NSW) (EPAA);
  • what a BDAR needs to contain; and
  • why developers and consent authorities alike should be conscious of those requirements.

When is a biodiversity development assessment report required?

Under s 7.7 of the BCA, a BDAR needs to accompany a development application for consent under Part 4 of the EPAA (except applications for State significant development or complying development) if the proposal is likely to significantly affect threatened species. Under s 7.9 of the BCA, applications for State significant development and State significant infrastructure also need to be accompanied by a BDAR unless both the Secretary of the Department of Planning and Environment and the Chief Executive of the Office of Environment and Heritage determine that the proposal is not likely to have any significant impact on biodiversity values.

Under s 7.2 of the BCA, a proposal is likely to significantly affect threatened species if it:

  • is found to do so pursuant to the test set out in s 7.3 of the BCA (this is a slightly modified version of the 7 part test that was in the now repealed s 5A of the EPAA);
  • exceeds the biodiversity offsets scheme threshold if the biodiversity offsets scheme applies to the impacts of the proposal on biodiversity values; or
  • is carried out in a declared area of outstanding biodiversity value.

Preparation and contents of a biodiversity development assessment report

Under s 6.12 of the BCA, a BDAR is a report prepared by an accredited person that:

  • assesses the biodiversity values of the subject land in accordance with the biodiversity assessment method;
  • assesses the impact of the proposal on the biodiversity values of the subject land in accordance with the biodiversity assessment method;
  • sets out the measures that the proponent proposes to take to avoid or minimise the proposal’s impacts; and
  • specifies the number and class of biodiversity credits that are required to be retired to offset the residual impacts on biodiversity values in accordance with the biodiversity assessment method.

Clause 6.8 of the Biodiversity Conservation Regulation 2017 (NSW) prescribes further information to be included in BDARs.

Biodiversity development assessment reports to be prepared in accordance with the biodiversity assessment method

The biodiversity assessment method (BAM) is established under the Biodiversity Assessment Method Order 2017. It is an extensive document setting out, among other things, the assessment methodology to be followed when preparing BDARs.

Considering the requirements under s 6.12 of the BCA, there is a risk to the validity of development applications where:

  • a BDAR is required to accompany the development application; and
  • the BDAR cannot show that it has been prepared in accordance with the BAM.

Therefore the meaning of the phrase “in accordance with” is critical in understating the obligation imposed by s 6.12.

Courts have, in varying contexts, interpreted the phrase “in accordance with” as requiring something less than absolute compliance. For example, the High Court interpreted the phrase as meaning “in conformity with” or “consistently with”. [3] The Administrative Appeals Tribunal of Australia has held that the phrase does not carry with it a requirement for “slavish adherence”.[4]

However, as the phrase in the context of s 6.12 has not yet received judicial consideration, developers and consent authorities alike should be vigilant in the preparation and assessment of BDARs and their compliance with the BAM as this issue has the potential to undermine the validity of development applications and the power of consent authorities to determine them.

 

[1] See definition of “pending or interim planning application” under s 27 of the Biodiversity Conservation (Savings and Transitional) Regulation 2017 (NSW) for a further list of planning applications to which the pre-BCA scheme applies.

[2] Under s 27(3) of the Biodiversity Conservation (Savings and Transitional) Regulation 2017 (NSW) the local government areas of Camden, City of Campbelltown, Central Coast, City of Cessnock, City of Coffs Harbour, City of Fairfield, City of Hawkesbury, City of Lake Macquarie, City of Liverpool, City of Maitland, City of Newcastle, City of Penrith, Port Stephens and Wollondilly are interim designated areas as is that part of the City of Wollongong that comprises the land to which the West Dapto Urban Release Area proposed application for biodiversity certification applies.

[3] Walker v Wilson [1991] HCA 8 at [16].

[4] Bureau of Meteorology v Comcare [2015] AATA 267 at [39].

This blog post was prepared by Maddocks associate Shenal Siriwardhane

 

 

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