'NSW plan for nature' released

The NSW Government has released its response to the reviews of the Biodiversity Conservation Act 2016 and native vegetation provisions of the Local Land Services Act 2013. 

The response foreshadows significant changes to biodiversity legislation in NSW, with an increasing focus on nature positive outcomes.

Snapshot

• The NSW Government will introduce a number of changes to the Biodiversity Conservation Act 2016, following the independent review into the Act in 2023.
• Most significantly, this will include changes to the Biodiversity Offsets Scheme to require overall ‘net positive’ outcomes, going beyond the current ‘no net loss’ standard.
• In addition, the NSW Government will introduce a ‘NSW Nature Strategy’, which will set goals and targets for achieving nature positive outcomes.

​​​​​​​Reviews find that NSW biodiversity legislation not fit for purpose

Over the course of 2022 and 2023, independent reviews were undertaken of both the Biodiversity Conservation Act 2016 (BC Act) and native vegetation provisions of the Local Land Services Act 2013 (LLS Act).

The Final Report for the Independent Review of the Biodiversity Conservation Act 2016 (Final Report) found that the BC Act was not meeting its primary objective of maintaining a healthy and resilient environment, and was “never likely to do so”. The Final Report concluded that:

• The objects of the BC Act were not fit for purpose, and instead needed to facilitate ‘nature positive’ outcomes for biodiversity in NSW.
• There was a need for landscape-scale outcomes (rather than a piecemeal approach to biodiversity restoration).
• Improvements to the capture and analysis of data were needed to inform decision-making in relation to biodiversity values.
• The Biodiversity Offsets Scheme required overhaul, and should be underpinned by a ‘net positive’ objective.

Proposed amendments in relation to the BC Act

Following the Final Report, the NSW Government has proposed a number of changes to the BC Act and biodiversity tools in NSW.

An overview of some of the key changes is below:

1. A ‘NSW Nature Strategy’ will be published and made a ‘legal requirement’ under the BC Act. The strategy will set goals and targets for conservation and restoration, as well as guiding public and private investment.
2. The objects of the BC Act will be amended to incorporate nature positive goals. The NSW Government will work with relevant stakeholders to identify other potential amendments to the operative provisions of the BC Act to support the revised objects.
3. The Biodiversity Offsets Scheme will be amended to transition to overall ‘net positive’ outcomes over time, going beyond the current ‘no net loss’ standard.
4. The option for major mining proponents to meet credit obligations through a commitment to ecological mine site rehabilitation will be removed.
5. New powers will be established to enable limits on the ability of proponents to transfer an offset obligation to the Biodiversity Conservation Fund.
6. The Minister for the Environment will be given new powers to ‘switch off’ the Biodiversity Offsets Scheme for local development following natural disasters, or in other exceptional circumstances.
7. A new public register will be established to record ‘avoidance’ and ‘minimisation’ measures for development.
8. The NSW Government will develop methods to identify and disclose nature-related risks and impacts within government, alongside strategies to address those risks.
9. Private land conservation agreements will be broadened to recognise and protect Aboriginal cultural values and traditional ecological knowledge.
10. A range of spatial and data collection tools will be developed or improved to inform decision making on biodiversity.

Proposed amendments in relation to the LLS Act

The ‘NSW plan for nature’ also sets out a number of changes to be made to the LLS Act, including:

1. Making changes to the Land Management (Native Vegetation) Code 2018 (Code) to reduce areas approved to be cleared and to increase the area of native vegetation protected and managed in perpetuity.
2. Reinstating caps on land clearing.
3. Incentivising landholders to protect, enhance and restore their native vegetation.
4. Requiring landholders to notify Local Land Services or obtain approval from Local Land Services for all parts of the Code.

Key takeaways

• The ‘NSW plan for nature’ foreshadows significant changes to biodiversity legislation in NSW in the near future.
• Proponents should expect to see an increasing focus on biodiversity impacts of projects, and changes to how those impacts are assessed and managed.

A copy of the ‘NSW plan for nature’ can be found here.

If you would like to understand what the ‘NSW plan for nature’ means for you, please get in touch.

By Peter Briggs, Partner, and Brigitte Rheinberger, Senior Associate.