A bill has been introduced to NSW Parliament which, if passed, would mandate nature positive outcomes for biodiversity offsetting. The changes would also see proponents needing to demonstrate that they have used “all reasonable measures” to avoid and minimise impacts on biodiversity (prior to offsetting).
Snapshot
- The Bill seeks to implement the changes identified in the independent review of NSW’s biodiversity legislation by Dr Ken Henry AC.
- Although the Bill proposes a number of changes to the Biodiversity Offsets Scheme, much of the detail around these measures will be in a biodiversity strategy and amendments to the Biodiversity Conservation Regulation 2017 (NSW) (both of which are yet to be released).
- The Bill follows the release of the “NSW Plan for Nature” last month.
Independent review finds NSW biodiversity legislation not fit for purpose
Over the course of 2022 and 2023, Dr Ken Henry AC undertook a review of the Biodiversity Conservation Act 2016 (NSW) (BC Act). The review found that the BC Act was not fit for purpose, and instead needed to facilitate nature positive outcomes for biodiversity.
The review also found that the Biodiversity Offsets Scheme (established by the BC Act) required significant overhaul.
The amendment bill is introduced
The Biodiversity Conservation Amendment (Biodiversity Offsets Scheme) Bill 2024 (NSW) seeks to implement the findings of the independent review into the BC Act.
A summary of the key changes proposed by the Bill are below.
Biodiversity Offsets Scheme to transition to ‘net positive’ outcomes over time
Currently, the BC Act requires impacts to biodiversity from development to be to a “no net loss standard”.
However, the Bill provides that the Biodiversity Offsets Scheme will transition to deliver “net positive biodiversity outcomes”. The Bill requires the Environment Minister to make a strategy specifying the actions and timeframes for transitioning to net positive biodiversity outcomes over time.
As the strategy has not yet been released, it remains to be seen exactly how the government will transition the Biodiversity Offsets Scheme to “net positive”, and over what timeframe.
Avoid, minimise, offset hierarchy to be formalised
The Bill also proposes to introduce a new “avoid, minimise, offset” hierarchy. The hierarchy will require proponents to show that they have taken “all reasonable measures” to avoid and minimise impacts on biodiversity before offsetting.
While the BC Act already contemplates that proponents will follow the offset hierarchy, the proposed amendments appear to be an attempt to formalise and reinforce the requirements to avoid and minimise impacts prior to offsetting.
It is proposed that the BC Regulation will be amended to establish a standard against which developers must demonstrate that measures have been taken to avoid and minimise biodiversity impacts.
Again, as the proposed amendments to the BC Regulation have not yet been released, it remains to be seen what those standards are, and what might constitute “all reasonable measures”.
Changes to offsetting conditions for SSD / SSI projects
Currently, the BC Act provides that the Minister for Planning may require a proponent for State significant development or infrastructure to retire biodiversity credits as identified in a Biodiversity Development Assessment Report (BDAR).
The Bill proposes to amend this requirement so that the relevant consent authority must require a proponent to retire credits of the number and class specified in the BDAR. However, the consent authority may seek the concurrence of the Environment Minister to impose a different condition, but only if it is “justified in the circumstances”.
Limits on payments into the BCF, plus time limits to be imposed on Biodiversity Conservation Trust
The Bill also foreshadows amendments to the BC Regulation that would prescribe certain situations where proponents could not pay into the Biodiversity Conservation Fund (BCF) to satisfy a biodiversity condition.
As proposed changes to the BC Regulation have not yet been released, it is unclear what these circumstances will be.
Additionally, the Biodiversity Conservation Trust (BCT) will be required to retire biodiversity credits for which a payment has been made into the BCF within three years. If offsets are not secured within that timeframe, the BCT must enter into an agreement with the Minister setting out how the obligation will be met.
A copy of the Bill can be found here.
If you would like to understand what the proposed changes to the BC mean for you, please get in touch.
By Peter Briggs (Partner), Brigitte Rheinberger (Senior Associate), and James Donaldson (Solicitor).
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