On the 24th of August, New South Wales’ Minister for the Environment, Penny Sharpe, tabled an independent statutory review (Review) of the Biodiversity Conservation Act 2016 NSW (Act). The Review was undertaken in response to the five-year review period mandated by the Act and was led by Dr Ken Henry AC with the support of Mr Mike Mrdak AO, Dr John Keniry AM, and Professor Michelle Leishman. The purpose of the review was to determine whether the objectives contained at Section 1.3 of the Act remain relevant and whether the terms contained therein remain appropriate for securing those objectives.

Key Takeaways

• Review asserts that principle operative provisions of the Act are deficient.
• Significant reform is recommended.
• The NSW Government will now consider the review and develop its response.

Findings

Within the five-year period of the Act’s commencement, more than 30% of original native vegetation in NSW has been substantially altered, with 954 threatened species and 111 threatened ecological communities currently listed under the Act. Only 50% of these threatened species are expected to remain in 100 years.

The Review asserts that the principal operative provisions of the Act are deficient and that the Act has failed to remedy:

• The clearing of native vegetation, intensifying land use, a growing population and associated infrastructure development leading to the destruction, alteration, and fragmentation of habitat.
• The effects of climate change, including and exacerbating extreme weather events.
• Weeds that are out-competing native plants and taking over large swathes of habitat, disrupting the natural balance of ecosystems and reducing species diversity.
• Feral animals that are competing with native wildlife for resources, overgrazing native plants, and preying on native animals.
• The 2019–20 bushfires which had a profound impact on biodiversity, affecting more than 5 million hectares of habitat in NSW.
• Water extraction, altered river flows, loss of connectivity and catchment changes such as altered land use and vegetation clearing impacting water availability, river health and ecosystem integrity.
• Native forest logging damaging forest ecosystems and the habitat of native species.

Key Proposed Changes

Biodiversity Offset Schemes and Credit Obligations

It is anticipated that the NSW Government will respond to the Review with new ‘nature positive’ reforms. One of the key changes proposed by Henry was that the Act should have primacy over competing pieces of legislation, which may result in elevating considerations of biodiversity conservation above those of housing supply and economic development. A further consequence could also be that consent authorities, such as Local Councils, would be provided with clearer powers to retrospectively apply Biodiversity Offsets to development applications, especially if there has been pre-emptive vegetation clearing under an entitlement to avoid application of the Scheme.

An additional change proposed by Henry is that more be done to expand credit supply, by assisting landholders to enter Biodiversity Stewardship Agreement, and give greater credit value to restoring sites and protecting connected sites.

The Review also proposes to broaden crediting obligations for the purpose of requiring net gain for biodiversity. For example, instead of requiring landholders to offset their biodiversity impact by say, 70%, the proposed change would require landholders to offset calculated biodiversity loss beyond 100% to achieve net gain.

Ministerial Powers

The Review also suggests that the Minister for the Environment be afforded a ‘call in power’ for major projects. This ‘call in power’ would give the Minister the ability to determine whether a major project has a serious and irreversible impact, and concurrently determine whether the development should be approved in light of its biodiversity impact.

In a similar vein, the Review proposes a requirement in the Act to publish reasons for approving serious and irreversible impacts, and subsequently maintain a statutory register of these decisions. Under this proposal, all areas over which the Minister for the Environment considers that a project would cause a serious and irreversible impact should be added to the single spatial tool as a ‘no-go’ area.

Nature Positive Development

Under the category of ‘nature positive developments’, the Review proposes the removal of the test of ‘significance pathway’. This suggested change is aimed at overcoming inconsistent regulation of impacts, specifically in local developments.

Further to this, Henry strongly suggests that the Government should clarify guidance on the requirements to ‘avoid and minimise’ impacts to biodiversity from development. At present, the terms contained in the Act are broadly defined, resulting in levels of ambiguity and inconsistency between consent authorities granting development applications.

Next Steps

In response to the Review, NSW Minister for the Environment Penny Sharpe said that ‘the previous government presided over 12 years of environmental neglect that led to record numbers of threatened species, increased land clearing and saw koalas become endangered and on track to extinction.’

The government will now consider the recommendations in the review and prepare its response.

Jennifer Hughes, Ella Robertson

This material has been produced by Beatty Hughes & Associates for the purposes of providing general information and does not constitute legal advice.