Implementation of the Biodiversity Conservation reforms in Hunter and Central Coast

Implementation of the Biodiversity Conservation reforms in Hunter and Central Coast

Hunter Region Capacity Building Program

The Hunter Joint Organisation  (HJO) Environment Division is working with our members to respond to their specific needs and is developing and delivering a work program that assists each Council transition and understand their new legislative requirements and obligations under the new Biodiversity reforms.

We are working with Office of Environment and Heritage (OEH) and Office of Local Government (OLG) to develop key support material and deliver targeted briefing sessions to assist Council Officers to implement the Biodiversity Reforms and enable Council Officers to undertake their role within the new Biodiversity Conservation framework.

Key stages of our Project are:

  • Stage 1 – Understanding Councils Capacity to implement the Biodiversity reforms
  • Stage 2 – Capacity Building through face to face discussions, targeted briefing session and coordinating regional forums
  • Stage 3 – Development of key resources
  • Stage 4 – Council Help Desk

Regional Biodiversity Reforms Forum 

The HJO Environment Division delivered the Regional Biodiversity Conservation Reforms Forum on 21 June 2018 which established a regional community of practice in the Hunter region for Council officers to connect, share knowledge and collaborate on biodiversity and vegetation management issues. It was directly supported by NSW state agencies providing an update on the biodiversity reforms and through the participation of staff from all member Councils in two concurrent workshops delivered on the day. The workshops focused on Council regulation of clearing via Development Control Plans (DCPs) and the identification and establishment of biodiversity triggers and assessment for Part 5 Council activities.

Forty-four participants representing all of the region’s Councils participated in this regional forum. Other organisations participating included NSW Office of Environment & Heritage (OEH), NSW Department of Planning & Environment (DPE) and Office of Local Government (OLG) including four regional local government support officers from Hunter, North Coast, South Sydney and South Coast.  This forum was an important opportunity to share and provide new material prepared by the HJO Environment Division and NSW state agencies to all of the region’s Councils and to establish the next 12 months workplan for Stages 2 and 3 of the Hunter Regional Council Capacity Building Project.

For those Council Officers and NSW agency representatives that attended the day, thank you for taking part in the Regional Forum and establishment of the regional community of practice. All Council Officers that registered interest in the forum have been added to our Biodiversity Reforms Alert list and will receive Biodiversity Reforms alerts, e-Newsletters and Council FAQs.

A copy of the presentations from the regional forum are available for Hunter Region Council Officers. If you would like a copy please contact Carlie McClung at carliem@huntercouncils.com.au

Council Support

For specific information relating to your Council and the capacity building program, please contact the LG Hunter Regional Support Officer, Carlie McClung.
Contact details are:
Email: carliem@huntercouncils.com.au
Phone: 4978 4045

Biodiversity Assessment and Approval Pathways

Biodiversity Assessment and Approval Pathways

Key Considerations

The assessment and approval pathways for biodiversity impacts will depend upon the purpose, nature, location and extent of the vegetation clearing proposed.

The key questions relating to the biodiversity assessment and approval pathway are:

  • Is my Local Government Area located within an Interim Designated Area?
  • Is the vegetation to be cleared native vegetation?
  • What is the purpose of the vegetation clearing?
  • Do my biodiversity impacts (clearing and/or prescribed) trigger the Biodiversity Offset Scheme?
  • Are impacts considered Serious and Irreversible (SAII)?


Is my Local Government Area located within an Interim Designated Area?

Interim Designated Areas within the Hunter Region

The Minister for the Environment has declared seven additional local government areas, and part of one local government area, as Interim Designated Areas (IDA). Six (6) local government areas (LGAs) within the Hunter Region are declared at an IDA.

The relevant Councils within the Hunter Region are:

  • Central Coast
  • Cessnock
  • Newcastle
  • Port Stephens
  • Lake Macquarie
  • Maitland

Transitional arrangements will continue to apply to new applications within these LGAs for development consent or modification to an approved development under Part 4 of the Environmental Planning & Assessment Act 1979 (EP&A Act) (not including state significant development (SSD) and will be subject to the former biodiversity assessment requirements under the Threatened Species Conservation Act 1995 (TSC Act). In these LGAs, applicants will have until 24 November 2018 to submit an application under the previous legislation.


Transitional Arrangements

From 25 February 2018, any new application for development consent or modification to an approved development under Part 4 of the Environmental Planning & Assessment Act 1979 (EP&A Act) (not including State Significant Development (SSD) lodged from this date will be subject to the biodiversity assessment requirements of the Biodiversity Conservation Act 2016 (BC Act), and transitional arrangements no longer apply.

The commencement of the biodiversity assessment requirements of the BC Act applies to five (5) local government areas (LGAs) within the Hunter Region.

The relevant Councils within the Hunter Region are:

  • Dungog
  • MidCoast
  • Muswellbrook
  • Singleton
  • Upper Hunter

What is my approval pathway?

This biodiversity assessment and approval pathways flow chart has been developed for our members located outside a declared IDA. If you would like an electronic copy of this Council flowchart, please contact Carlie McClung (Hunter LG Support Officer) at carliem@huntercouncils.com.au.

 

  • The biodiversity assessment and approval pathways are dependent on the purpose of the vegetation clearing and whether the clearing is associated with:Native or non-native vegetation clearing –  native vegetation and native vegetation clearing is defined under Schedule Part 5A, Division 1 Section 60B and 60C of the Local Land Services Act 2013 (LLS Act) and
  • A development that requires consent (Part 4 of the Environmental Planning and Assessment Act 1979 (EP&A Act) OR
  • A Council activity defined under the State Environmental Planning Policy (Infrastructure) 2017 (Infrastructure SEPP) (Part 5 EP&A Act) OR
  • where development consent is NOT required (without consent) or is NOT associated with a development, clearing is defined by what zone you are in (unless you are located within the Newcastle LGA).
    • If you are within a Non-rural Zone (or located within the Newcastle LGA), vegetation clearing is regulated under the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) OR
    • If you are within a Rural Zone (or within ‘Deferred Matters’ zoned land), vegetation clearing is regulated under Local Land Services Act 2013 (LLS Act).

 This biodiversity assessment and approval pathways flow chart has been developed for our members located within a declared IDA. The Part 4 local development pathway is different for our members within a declared IDA until 25 November 2018. If you would like an electronic copy of this Council flowchart, please contact Carlie McClung (Hunter LG Support Officer) at carliem@huntercouncils.com.au. 

Once you know which approval pathway you are in, the next step is to identify whether the proposed clearing is above or below the Biodiversity Offset Scheme threshold.


What is the Biodiversity Offset Scheme?

The Biodiversity Offset Scheme threshold (BOS) Threshold is a test used to determine when is necessary to engage an accredited assessor to apply the Biodiversity Assessment Method (the BAM) to assess the impacts of a proposal.

If clearing and other impacts exceeds the trigger thresholds, the BOS applies to the proposed development and a Biodiversity Development Assessment Report (BDAR) must be prepared and submitted with their application.

The consent authority must consider the information in the BDAR when deciding whether to approve the development proposal and any appropriate conditions to mitigate the identified impacts.

Proponents will need to supply evidence relating to the triggers for the Biodiversity Offsets Scheme Threshold and the test of significance (where relevant) when submitting their application to the consent authority.


What are the triggers into the Biodiversity Offsets Scheme? 

There are three triggers into Biodiversity Offsets Scheme:

  1. Located on Biodiversity Values map
  2. Area clearing threshold
  3. Threatened species ‘Test of Significance’


Does the clearing exceed the BOS threshold?

1. IS THE PROPOSED CLEARING WITHIN (PARTIALLY OR WHOLLY) ON AN AREA MAPPED ON THE BIODIVERSITY VALUES MAP PUBLISHED BY THE MINISTER FOR THE ENVIRONMENT.

A review of the proposed area of clearing and whether it is located within land identified with high biodiversity values on the Biodiversity values map should be undertaken.  Link to OEH Biodiversity Values Map Viewer

If the proposed clearing is within an area identified of high biodiversity value (as shown in orange on the map), a biodiversity development assessment report (BDAR) must be prepared in accordance with the Biodiversity Assessment Method (BAM) by an accredited assessor.

  • For local development (Part 4 of the Environmental Planning and Assessment Act 1979), the BDAR must accompanying the Development Application.
  • For clearing not associated with a development (Vegetation SEPP), this triggers approval by the Native Vegetation Panel for the proposed clearing.

NOTE 1 : The BOS also applies to activities within the BVM not related to vegetation clearing that have prescribed impacts as defined under Clause 6.1 of the Biodiversity Conservation Regulation 2017.

NOTE 2: Declared Areas of Outstanding Biodiversity Value (AOBV) are included within the Biodiversity Values Map. There are currently no declared AOBVs within the Hunter Region.

BIODIVERSITY VALUES MAP

OEH has released a new web page on the Biodiversity Values Map which provides update to date information on the Biodiversity Values Map including what is included on the map, the process for requesting an explanation report for a property and the map amendment history.

Requesting a Biodiversity Values Map explanation report

Councils now can request an explanation report for the Biodiversity Values Map from OEH.  This can include a request for a biodiversity explanation report for a property for which Councils have received a development or clearing application.

If Council is interested in obtaining an explanation report for a property, please complete the BVER application form for Councils and send the request to the map review team at map.review@environment.nsw.gov.au.  If you would like a copy of the Council application form, please contact Carlie McClung (Hunter LG Support Officer) at carliem@huntercouncils.com.au.

 

2. DOES MY PROPOSED CLEARING TRIGGER THE AREA CLEARING THRESHOLD? 

The area threshold applies to all proposed native vegetation clearing associated with a proposal, regardless of whether this clearing is across multiple lots. In the case of a subdivision, the proposed clearing must include all future clearing likely to be required for the intended use of the land after it is subdivided.

The area threshold varies depending on the minimum lot size. The minimum lot size is based on the Lot Size maps under your Councils Local Environmental Plan (LEP), or is the actual lot size where there is no minimum lot size specified for the land under the LEP.

If the proposed clearing is above the clearing threshold for your minimum lot size (as specified in the table), a biodiversity development assessment report (BDAR) must be prepared in accordance with the Biodiversity Assessment Method (BAM) by an accredited assessor.

  • For local development (Part 4 of the Environmental Planning and Assessment Act 1979), the BDAR must accompanying the Development Application.
  • For clearing not associated with a development (Vegetation SEPP), this triggers approval by the Native Vegetation Panel for the proposed clearing.

Clearing below the BOS threshold 

3. THREATENED SPECIES ‘TEST OF SIGNIFICANCE’

The threatened species ‘test of significance’ (5 part test) is used to determine if a development or activity is likely to significantly affect threatened species or ecological communities, or their habitats. It is applied as part of the Biodiversity Offsets Scheme (BOS) entry requirements for Part 4 local developments and for Part 5 activities under the Environmental Planning and Assessment Act 1979.

The test of significance is set out in Section 7.3 of the Biodiversity Conservation Act 2016.  Consideration of the test of significance include:

For Part 4 local developments (not including Major Projects)

  • If the ‘test of significance’ assessment indicates that there will be a significant impact, the proposal triggers the BOS and the proponent must carry out a BAM assessment. The outcomes of the assessment should be included in the Biodiversity Development Assessment Report (BDAR) and must be provided to the consent authority.
  • The consent authority must consider the information in the BDAR when deciding whether to approve the development proposal and any appropriate conditions to mitigate the identified impacts.
  • The environmental impact of proposals that do not exceed the Biodiversity Offset Scheme Threshold and have been assessed to not have a significant impact on threatened species will continue to be assessed under Section 4.15 (formerly Section 79C) of Environmental Planning and Assessment Act 1979.

For Part 5 activities

  • The ‘test of significance’ must be applied to determine whether the proposed activity is likely to significantly affect threatened species or ecological communities, or their habitats. If the activity is likely to have a significant impact, or will be carried out in a declared area of outstanding biodiversity value, the proponent must either apply the Biodiversity Offsets Scheme or prepare a species impact statement (SIS).
  • You can find out more information on the assessing biodiversity impacts of Part 5 activities and transitional arrangements on the OEH webpage.

Biodiversity Offsets Scheme Entry Tool 

OEH have developed an on-line Biodiversity Offsets Scheme Entry Tool which is available to assist developers, landholders and consent authorities determine whether the proposed clearing will be above or below the area thresholds or lies within an area mapped as having high biodiversity value.

The tool generates a report that can be supplied with a development application or vegetation clearing permit application to identify whether the proposed clearing (or prescribed impacts) are within an area on the Biodiversity Values Map. A BOSET user guide (PDF 376KB) has been developed by OEH for this tool.


Serious and Irreversible Impacts (SAII) 

The Biodiversity Offsets Scheme (BOS) recognises that there are some impacts that the community expects will NOT occur. The concept of Serious and Irreversible Impacts (SAII) is fundamentally about protecting threatened entities that are most at risk of extinction from potential development.

The principles for determining serious and irreversible impacts are detailed in the OEH SAII guidance document which provides guidance, criteria and lists of SAII candidates. The most current list of SAII candidates and triggers should be referenced from the NSW BioNet.

Key Council considerations for SAII

  • Council is responsible for deciding whether there is a serious and irreversible impact from a proposed local development (Part 4 of the Environmental Planning and Assessment Act 1979 (EP&A Act)) or Council activity (Part 5 of the EP&A Act).
  • Council may want to consider developing a Council process for review and determination of local developments and/or Council activities likely to have a SAII.
  • Council MUST refuse a Part 4 local development where a Serious and Irreversible Impact (SAII) is identified.

Vegetation Clearing NOT associated with development consent

If vegetation clearing is not associated with a development consent or an activity, the approval pathway is defined by the zoning of the land (except for land within the Newcastle LGA).

‘DEFERRED MATTER’ ZONED LANDS

Within some LGAs, there are areas of land that have not yet been classified under the Council Local Environmental Plan (LEP) due to certain planning circumstances. These lands are referred to as ‘Deferred Matter’ (DM) on the LEP map entitled ‘Land Application’.

If your property is identified within ‘Deferred Matter’ zoned lands, then any proposed development on that land will continue to be controlled and guided by the relevant LEP and Development Control Plan (DCP) that applied to the land prior to the implementation of new LEP.

For vegetation clearing not associated with development consent, the ‘Deferred Matter’ zoning applies to the land and is regulated by Part 5A of the Local Land Services Act 2013 (LLS Act).  As a result, any deferred matter land will be identified on the Native Vegetation Regulatory Map under the LLS Act and categorised according to the map method. This includes land that is not rural in character such as urban, environmental conservation or environmental management zones.

Advice should be sought from Local Land Services (LLS) for any clearing proposed on land within this zoning. For additional information on vegetation clearing within ‘Deferred Matter’ zoned lands refer to the following section for ‘Rural Land’.


RURAL LAND

If the land is zoned rural (RU1, RU2, RU3, RU4 or RU6) and is NOT located within the Newcastle LGA, then the provisions of the LLS Act can be used
  • Advice should be sought from Local Land Services (LLS) for any clearing proposed on land within these zonings.
  • Land in NSW is categorised into three main categories including Category 1 (exempt land), Category 2 (regulated land) and excluded land (regulated by Vegetation SEPP)
  • A Native Vegetation Regulatory (NVR) Map has been developed which identifies rural land that is regulated under the new land management framework. Landholders can view the categories of vegetation as depicted on the regulatory map for their property. Category 1 and 2 lands are currently not included on the NVR Map. Link to Native Vegetation Regulatory Map viewer
  • If your property is located within Category 2 – regulated land, you will need to identify which Allowable Activity zone (as defined under Schedule 5A, Part 1, 3(a) of the LLS Act) your Council is located in.

Allowable Activity Zones for Hunter Region Councils

Coastal Central Coast, Lake Macquarie, Maitland, Port Stephens, MidCoast (except for former Gloucester LGA)
Central Cessnock, Dungog, Singleton, Muswellbrook, Upper Hunter and MidCoast (Gloucester LGA only)
None Newcastle LGA is wholly under the provisions of the Vegetation SEPP
  • The type of activities and applicable rules within Category 2 – Regulated lands are provided in the following summary table.

  • A summary of the land categories and what rules apply is provided in the table below.


NON-RURAL LAND 

If the land is zoned non-rural(or is located within the Newcastle LGA), then the provisions of the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) and the Council Development Control Plan (DCP) applies
  • Advice should be sought from your local Council for any clearing proposed on land within these zonings.
  • The Vegetation SEPP applies to the whole Newcastle LGA.
  • If your Council adopted Clause 5.9(9) of the LEP prior to the enactment of the Vegetation SEPP, the Special Transitional provisions (specified in Part 5, Clause 27) for the use of existing allowable Native Vegetation Act 2003 (NV Act) clearing within R5, E2, E3 and E4 zones does not apply to the LGA.

Councils that adopted Clause 5.9(9) of the LEP include:

Central Coast Council Both Gosford LEP 2014 and Wyong LEP 2013. Noting the Wyong LEP 2013 also specified RU6 Transitions in the zones defined under this subclause
Cessnock City Council Cessnock LEP 2011. Noting when the LEP was made, it did not include Zone E3 Environmental Management or Zone E4 Environmental Living
Dungog Shire Council Dungog LEP 2014
Lake Macquarie City Council Lake Macquarie LEP 2014
MidCoast Council Only Great Lakes LEP 2014. Greater Taree LEP 2010 and Gloucester LEP 2010 had not adopted this clause
Newcastle City Council Newcastle LEP 2012. Noting this LGA is wholly within the Vegetation SEPP

Other permits

Even though authority may not be required under the State Environmental Planning Policy – Vegetation in Non-Rural Areas (Vegetation SEPP) or Local Land Services Act 2013 (LLS Act), to avoid committing an offence under the Biodiversity Conservation Act 2016 (BC Act), a Threatened species licence, a class of biodiversity conservation licence under Part 2 of the Biodiversity Conservation Act 2016 (BC Act) may still be required from the Office of Environment and Heritage (OEH).

Link to OEH Threatened Species Licence Application Form

If your proposed vegetation clearing will:

  • impact on a threatened species, ecological community or protected plant;
  • impact on the habitat of a threatened species or ecological community; or
  • cause harm to an animal that is a threatened species, part of a threatened ecological community or a protected animal.

In addition, consideration of any other permits and/or approvals would be required by the landholder such as (but not limited to):

  • any permits / approvals for impacting waterways including aquatic ecology under the Fisheries Management Act 1994 and Water Management Act 2003;
  • requirement for ecological advice including an assessment of significance for impacts on matters of National Environmental Significance (MNES) under the Commonwealth Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act).

Biodiversity Assessment and Approval Pathways

Biodiversity Assessment and Approval Pathways

Key Considerations

The assessment and approval pathways for biodiversity impacts will depend upon the purpose, nature, location and extent of the vegetation clearing proposed.

The key questions relating to the biodiversity assessment and approval pathway are:

  • Is my Local Government Area located within an Interim Designated Area?
  • Is the vegetation to be cleared native vegetation?
  • What is the purpose of the vegetation clearing?
  • Do my biodiversity impacts (clearing and/or prescribed) trigger the Biodiversity Offset Scheme?
  • Are impacts considered Serious and Irreversible (SAII)?


Is my Local Government Area located within an Interim Designated Area?

Interim Designated Areas within the Hunter Region

The Minister for the Environment has declared seven additional local government areas, and part of one local government area, as Interim Designated Areas (IDA). Six (6) local government areas (LGAs) within the Hunter Region are declared at an IDA.

The relevant Councils within the Hunter Region are:

  • Central Coast
  • Cessnock
  • Newcastle
  • Port Stephens
  • Lake Macquarie
  • Maitland

Transitional arrangements will continue to apply to new applications within these LGAs for development consent or modification to an approved development under Part 4 of the Environmental Planning & Assessment Act 1979 (EP&A Act) (not including state significant development (SSD) and will be subject to the former biodiversity assessment requirements under the Threatened Species Conservation Act 1995 (TSC Act). In these LGAs, applicants will have until 24 November 2018 to submit an application under the previous legislation.


Transitional Arrangements

From 25 February 2018, any new application for development consent or modification to an approved development under Part 4 of the Environmental Planning & Assessment Act 1979 (EP&A Act) (not including State Significant Development (SSD) lodged from this date will be subject to the biodiversity assessment requirements of the Biodiversity Conservation Act 2016 (BC Act), and transitional arrangements no longer apply.

The commencement of the biodiversity assessment requirements of the BC Act applies to five (5) local government areas (LGAs) within the Hunter Region.

The relevant Councils within the Hunter Region are:

  • Dungog
  • MidCoast
  • Muswellbrook
  • Singleton
  • Upper Hunter

What is my approval pathway?

This biodiversity assessment and approval pathways flow chart has been developed for our members located outside a declared IDA. If you would like an electronic copy of this Council flowchart, please contact Carlie McClung (Hunter LG Support Officer) at carliem@huntercouncils.com.au.

 

  • The biodiversity assessment and approval pathways are dependent on the purpose of the vegetation clearing and whether the clearing is associated with:Native or non-native vegetation clearing –  native vegetation and native vegetation clearing is defined under Schedule Part 5A, Division 1 Section 60B and 60C of the Local Land Services Act 2013 (LLS Act) and
  • A development that requires consent (Part 4 of the Environmental Planning and Assessment Act 1979 (EP&A Act) OR
  • A Council activity defined under the State Environmental Planning Policy (Infrastructure) 2017 (Infrastructure SEPP) (Part 5 EP&A Act) OR
  • where development consent is NOT required (without consent) or is NOT associated with a development, clearing is defined by what zone you are in (unless you are located within the Newcastle LGA).
    • If you are within a Non-rural Zone (or located within the Newcastle LGA), vegetation clearing is regulated under the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) OR
    • If you are within a Rural Zone (or within ‘Deferred Matters’ zoned land), vegetation clearing is regulated under Local Land Services Act 2013 (LLS Act).

 This biodiversity assessment and approval pathways flow chart has been developed for our members located within a declared IDA. The Part 4 local development pathway is different for our members within a declared IDA until 25 November 2018. If you would like an electronic copy of this Council flowchart, please contact Carlie McClung (Hunter LG Support Officer) at carliem@huntercouncils.com.au. 

Once you know which approval pathway you are in, the next step is to identify whether the proposed clearing is above or below the Biodiversity Offset Scheme threshold.


What is the Biodiversity Offset Scheme?

The Biodiversity Offset Scheme threshold (BOS) Threshold is a test used to determine when is necessary to engage an accredited assessor to apply the Biodiversity Assessment Method (the BAM) to assess the impacts of a proposal.

If clearing and other impacts exceeds the trigger thresholds, the BOS applies to the proposed development and a Biodiversity Development Assessment Report (BDAR) must be prepared and submitted with their application.

The consent authority must consider the information in the BDAR when deciding whether to approve the development proposal and any appropriate conditions to mitigate the identified impacts.

Proponents will need to supply evidence relating to the triggers for the Biodiversity Offsets Scheme Threshold and the test of significance (where relevant) when submitting their application to the consent authority.


What are the triggers into the Biodiversity Offsets Scheme? 

There are three triggers into Biodiversity Offsets Scheme:

  1. Located on Biodiversity Values map
  2. Area clearing threshold
  3. Threatened species ‘Test of Significance’


Does the clearing exceed the BOS threshold?

1. IS THE PROPOSED CLEARING WITHIN (PARTIALLY OR WHOLLY) ON AN AREA MAPPED ON THE BIODIVERSITY VALUES MAP PUBLISHED BY THE MINISTER FOR THE ENVIRONMENT.

A review of the proposed area of clearing and whether it is located within land identified with high biodiversity values on the Biodiversity values map should be undertaken.  Link to OEH Biodiversity Values Map Viewer

If the proposed clearing is within an area identified of high biodiversity value (as shown in orange on the map), a biodiversity development assessment report (BDAR) must be prepared in accordance with the Biodiversity Assessment Method (BAM) by an accredited assessor.

  • For local development (Part 4 of the Environmental Planning and Assessment Act 1979), the BDAR must accompanying the Development Application.
  • For clearing not associated with a development (Vegetation SEPP), this triggers approval by the Native Vegetation Panel for the proposed clearing.

NOTE 1 : The BOS also applies to activities within the BVM not related to vegetation clearing that have prescribed impacts as defined under Clause 6.1 of the Biodiversity Conservation Regulation 2017.

NOTE 2: Declared Areas of Outstanding Biodiversity Value (AOBV) are included within the Biodiversity Values Map. There are currently no declared AOBVs within the Hunter Region.

BIODIVERSITY VALUES MAP

OEH has released a new web page on the Biodiversity Values Map which provides update to date information on the Biodiversity Values Map including what is included on the map, the process for requesting an explanation report for a property and the map amendment history.

Requesting a Biodiversity Values Map explanation report

Councils now can request an explanation report for the Biodiversity Values Map from OEH.  This can include a request for a biodiversity explanation report for a property for which Councils have received a development or clearing application.

If Council is interested in obtaining an explanation report for a property, please complete the BVER application form for Councils and send the request to the map review team at map.review@environment.nsw.gov.au.  If you would like a copy of the Council application form, please contact Carlie McClung (Hunter LG Support Officer) at carliem@huntercouncils.com.au.

 

2. DOES MY PROPOSED CLEARING TRIGGER THE AREA CLEARING THRESHOLD? 

The area threshold applies to all proposed native vegetation clearing associated with a proposal, regardless of whether this clearing is across multiple lots. In the case of a subdivision, the proposed clearing must include all future clearing likely to be required for the intended use of the land after it is subdivided.

The area threshold varies depending on the minimum lot size. The minimum lot size is based on the Lot Size maps under your Councils Local Environmental Plan (LEP), or is the actual lot size where there is no minimum lot size specified for the land under the LEP.

If the proposed clearing is above the clearing threshold for your minimum lot size (as specified in the table), a biodiversity development assessment report (BDAR) must be prepared in accordance with the Biodiversity Assessment Method (BAM) by an accredited assessor.

  • For local development (Part 4 of the Environmental Planning and Assessment Act 1979), the BDAR must accompanying the Development Application.
  • For clearing not associated with a development (Vegetation SEPP), this triggers approval by the Native Vegetation Panel for the proposed clearing.

Clearing below the BOS threshold 

3. THREATENED SPECIES ‘TEST OF SIGNIFICANCE’

The threatened species ‘test of significance’ (5 part test) is used to determine if a development or activity is likely to significantly affect threatened species or ecological communities, or their habitats. It is applied as part of the Biodiversity Offsets Scheme (BOS) entry requirements for Part 4 local developments and for Part 5 activities under the Environmental Planning and Assessment Act 1979.

The test of significance is set out in Section 7.3 of the Biodiversity Conservation Act 2016.  Consideration of the test of significance include:

For Part 4 local developments (not including Major Projects)

  • If the ‘test of significance’ assessment indicates that there will be a significant impact, the proposal triggers the BOS and the proponent must carry out a BAM assessment. The outcomes of the assessment should be included in the Biodiversity Development Assessment Report (BDAR) and must be provided to the consent authority.
  • The consent authority must consider the information in the BDAR when deciding whether to approve the development proposal and any appropriate conditions to mitigate the identified impacts.
  • The environmental impact of proposals that do not exceed the Biodiversity Offset Scheme Threshold and have been assessed to not have a significant impact on threatened species will continue to be assessed under Section 4.15 (formerly Section 79C) of Environmental Planning and Assessment Act 1979.

For Part 5 activities

  • The ‘test of significance’ must be applied to determine whether the proposed activity is likely to significantly affect threatened species or ecological communities, or their habitats. If the activity is likely to have a significant impact, or will be carried out in a declared area of outstanding biodiversity value, the proponent must either apply the Biodiversity Offsets Scheme or prepare a species impact statement (SIS).
  • You can find out more information on the assessing biodiversity impacts of Part 5 activities and transitional arrangements on the OEH webpage.

Biodiversity Offsets Scheme Entry Tool 

OEH have developed an on-line Biodiversity Offsets Scheme Entry Tool which is available to assist developers, landholders and consent authorities determine whether the proposed clearing will be above or below the area thresholds or lies within an area mapped as having high biodiversity value.

The tool generates a report that can be supplied with a development application or vegetation clearing permit application to identify whether the proposed clearing (or prescribed impacts) are within an area on the Biodiversity Values Map. A BOSET user guide (PDF 376KB) has been developed by OEH for this tool.


Serious and Irreversible Impacts (SAII) 

The Biodiversity Offsets Scheme (BOS) recognises that there are some impacts that the community expects will NOT occur. The concept of Serious and Irreversible Impacts (SAII) is fundamentally about protecting threatened entities that are most at risk of extinction from potential development.

The principles for determining serious and irreversible impacts are detailed in the OEH SAII guidance document which provides guidance, criteria and lists of SAII candidates. The most current list of SAII candidates and triggers should be referenced from the NSW BioNet.

Key Council considerations for SAII

  • Council is responsible for deciding whether there is a serious and irreversible impact from a proposed local development (Part 4 of the Environmental Planning and Assessment Act 1979 (EP&A Act)) or Council activity (Part 5 of the EP&A Act).
  • Council may want to consider developing a Council process for review and determination of local developments and/or Council activities likely to have a SAII.
  • Council MUST refuse a Part 4 local development where a Serious and Irreversible Impact (SAII) is identified.

Vegetation Clearing NOT associated with development consent

If vegetation clearing is not associated with a development consent or an activity, the approval pathway is defined by the zoning of the land (except for land within the Newcastle LGA).

‘DEFERRED MATTER’ ZONED LANDS

Within some LGAs, there are areas of land that have not yet been classified under the Council Local Environmental Plan (LEP) due to certain planning circumstances. These lands are referred to as ‘Deferred Matter’ (DM) on the LEP map entitled ‘Land Application’.

If your property is identified within ‘Deferred Matter’ zoned lands, then any proposed development on that land will continue to be controlled and guided by the relevant LEP and Development Control Plan (DCP) that applied to the land prior to the implementation of new LEP.

For vegetation clearing not associated with development consent, the ‘Deferred Matter’ zoning applies to the land and is regulated by Part 5A of the Local Land Services Act 2013 (LLS Act).  As a result, any deferred matter land will be identified on the Native Vegetation Regulatory Map under the LLS Act and categorised according to the map method. This includes land that is not rural in character such as urban, environmental conservation or environmental management zones.

Advice should be sought from Local Land Services (LLS) for any clearing proposed on land within this zoning. For additional information on vegetation clearing within ‘Deferred Matter’ zoned lands refer to the following section for ‘Rural Land’.


RURAL LAND

If the land is zoned rural (RU1, RU2, RU3, RU4 or RU6) and is NOT located within the Newcastle LGA, then the provisions of the LLS Act can be used
  • Advice should be sought from Local Land Services (LLS) for any clearing proposed on land within these zonings.
  • Land in NSW is categorised into three main categories including Category 1 (exempt land), Category 2 (regulated land) and excluded land (regulated by Vegetation SEPP)
  • A Native Vegetation Regulatory (NVR) Map has been developed which identifies rural land that is regulated under the new land management framework. Landholders can view the categories of vegetation as depicted on the regulatory map for their property. Category 1 and 2 lands are currently not included on the NVR Map. Link to Native Vegetation Regulatory Map viewer
  • If your property is located within Category 2 – regulated land, you will need to identify which Allowable Activity zone (as defined under Schedule 5A, Part 1, 3(a) of the LLS Act) your Council is located in.

Allowable Activity Zones for Hunter Region Councils

Coastal Central Coast, Lake Macquarie, Maitland, Port Stephens, MidCoast (except for former Gloucester LGA)
Central Cessnock, Dungog, Singleton, Muswellbrook, Upper Hunter and MidCoast (Gloucester LGA only)
None Newcastle LGA is wholly under the provisions of the Vegetation SEPP
  • The type of activities and applicable rules within Category 2 – Regulated lands are provided in the following summary table.

  • A summary of the land categories and what rules apply is provided in the table below.


NON-RURAL LAND 

If the land is zoned non-rural(or is located within the Newcastle LGA), then the provisions of the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) and the Council Development Control Plan (DCP) applies
  • Advice should be sought from your local Council for any clearing proposed on land within these zonings.
  • The Vegetation SEPP applies to the whole Newcastle LGA.
  • If your Council adopted Clause 5.9(9) of the LEP prior to the enactment of the Vegetation SEPP, the Special Transitional provisions (specified in Part 5, Clause 27) for the use of existing allowable Native Vegetation Act 2003 (NV Act) clearing within R5, E2, E3 and E4 zones does not apply to the LGA.

Councils that adopted Clause 5.9(9) of the LEP include:

Central Coast Council Both Gosford LEP 2014 and Wyong LEP 2013. Noting the Wyong LEP 2013 also specified RU6 Transitions in the zones defined under this subclause
Cessnock City Council Cessnock LEP 2011. Noting when the LEP was made, it did not include Zone E3 Environmental Management or Zone E4 Environmental Living
Dungog Shire Council Dungog LEP 2014
Lake Macquarie City Council Lake Macquarie LEP 2014
MidCoast Council Only Great Lakes LEP 2014. Greater Taree LEP 2010 and Gloucester LEP 2010 had not adopted this clause
Newcastle City Council Newcastle LEP 2012. Noting this LGA is wholly within the Vegetation SEPP

Other permits

Even though authority may not be required under the State Environmental Planning Policy – Vegetation in Non-Rural Areas (Vegetation SEPP) or Local Land Services Act 2013 (LLS Act), to avoid committing an offence under the Biodiversity Conservation Act 2016 (BC Act), a Threatened species licence, a class of biodiversity conservation licence under Part 2 of the Biodiversity Conservation Act 2016 (BC Act) may still be required from the Office of Environment and Heritage (OEH).

Link to OEH Threatened Species Licence Application Form

If your proposed vegetation clearing will:

  • impact on a threatened species, ecological community or protected plant;
  • impact on the habitat of a threatened species or ecological community; or
  • cause harm to an animal that is a threatened species, part of a threatened ecological community or a protected animal.

In addition, consideration of any other permits and/or approvals would be required by the landholder such as (but not limited to):

  • any permits / approvals for impacting waterways including aquatic ecology under the Fisheries Management Act 1994 and Water Management Act 2003;
  • requirement for ecological advice including an assessment of significance for impacts on matters of National Environmental Significance (MNES) under the Commonwealth Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act).

Biodiversity Conservation Reforms and Land Management – Key Information Links for Councils

Biodiversity Conservation Reforms and Land Management – Key Information Links for Councils

A summary of key information links based on frequently asked questions has been compiled to assist Councils readily accessing information relating to implementation of the new biodiversity conservation reforms in the Local Government context.

This information will be regularly reviewed and updated by the LG Hunter RSO to add any new links as required and/or requested by Councils within the region.



Assessment Pathways 

I am interested in?

Where can I get information?

What is considered native vegetation? Native vegetation is defined under Part 5A, Division 1 Section 60B of the Local Land Services Act 2013 (LLS Act).
What is the definition of vegetation clearing? Clearing is defined under both the Local Land Services Act 2013 (LLS Act) and State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP). The definition used will be dependent on the biodiversity assessment and approval pathway.

I want to clear vegetation on my land, what biodiversity assessment and approvals are required? Office of Local Government

A decision support tool has been developed to assist Councils to choose the correct assessment pathway for applications

Does my development fall within a Local Government Area located within Interim Designated Area?

 

Interim Designated Areas within the Hunter Region

The Minister for the Environment has declared seven additional local government areas, and part of one local government area, as Interim Designated Areas (IDA). Six (6) local government areas (LGAs) within the Hunter Region are declared at an IDA.

The relevant Councils within the Hunter Region are:

  • Lower Hunter – Cessnock, Newcastle, Port Stephens, Lake Macquarie and Maitland
  • Central Coast

Transitional arrangements will continue to apply to new applications within these LGAs for development consent or modification to an approved development under Part 4 of the Environmental Planning & Assessment Act 1979 (EP&A Act) (not including state significant development (SSD) and will be subject to the former biodiversity assessment requirements under the Threatened Species Conservation Act 1995 (TSC Act). In these LGAs, applicants will have until 24 November 2018 to submit a development application under the previous legislation.

NSW Office of Environment and Heritage

Local Government information

FAQs on transitional arrangements

When did the transitional arrangements cease for local developments? Transitional Arrangements

From 25 February 2018, any new application for development consent or modification to an approved development under Part 4 of the Environmental Planning & Assessment Act 1979 (EP&A Act) (not including State Significant Development (SSD) lodged from this date will be subject to the biodiversity assessment requirements of the Biodiversity Conservation Act 2016 (BC Act), and transitional arrangements no longer apply.

The commencement of the biodiversity assessment requirements of the BC Act applies to five (5) local government areas (LGAs) within the Hunter Region.

The relevant Councils within the Hunter Region are:

  • Upper Hunter – Singleton, Muswellbrook, Dungog and Upper Hunter
  • MidCoast

 NSW Office of Environment and Heritage


Local Government information

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Vegetation clearing associated with a development consent

I am interested in?

Where can I get information?

Building or developing on my land where I need to clear native vegetation First contact: Local council

You will need to submit a development application (DA) with your local council. The clearing will be assessed as part of this application.

Biodiversity Assessment Requirements

You will need to identify if your Council is within an Interim Designated Area.

  • If yes, your development will be biodiversity assessment requirements of the Threatened Species Conservation Act 1995 (TSC Act)
  • If no, your development will be subject to the biodiversity assessment requirements of the Biodiversity Conservation Act 2016 (BC Act)
Does my vegetation clearing trigger the Biodiversity Conservation Act 2016?

 

NSW Office of Environment and Heritage

The Biodiversity Offsets Scheme (BOS) Threshold is a test used to determine when is necessary to engage an accredited assessor to apply the Biodiversity Assessment Method (the BAM) to assess the impacts of vegetation clearing.

Link to OEH information on entry into the Biodiversity Offset Scheme

What is the biodiversity values map and where to view it? One of the Biodiversity Offsets Scheme (BOS) threshold triggers is whether the proposed impacts occur on an area mapped on the Biodiversity Values map published by the Minister for the Environment.

The map can be viewed at Biodiversity Values Map Viewers

Is there a reporting tool that can assist in identifying whether my proposed clearing triggers the BOS? OEH have developed an on-line Biodiversity Offsets Scheme Entry Tool which is available to assist developers, landholders and consent authorities determine whether the proposed clearing will be above or below the area thresholds or lies within an area mapped as having high biodiversity value.

The tool generates a report that can be supplied with a development application or vegetation clearing permit application to identify whether the proposed clearing (or prescribed impacts) are within an area on the Biodiversity Values Map.

A BOSET user guide (PDF 376KB) has been developed by OEH for this tool.

Finding an accredited assessor to work out if I need an offset. NSW Office of Environment and Heritage

Link to OEH Accredited Assessor information page

The Register of Accredited Consultants can be found at:

Link to Accredited BAM Assessor Register

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Vegetation clearing NOT associated with a development consent

I am interested in?

Where can I get information?

My land is NOT zoned Rural (or is located within the Newcastle LGA) and I want to clear native vegetation NOT associated with a development consent First contact: Local council

The State Environmental Planning Policy – Vegetation in Non-Rural Areas (Vegetation SEPP) regulates the management of vegetation on non-rural land.

Department of Planning and Environment

Link to DPE Vegetation SEPP information

FAQ on transitional arrangements: request from LG Hunter Regional Support Officer

Questions
Email: vegetation.sepp@planning.nsw.gov.au

My land is zoned Rural (and is NOT located within the Newcastle LGA) and I want to clear native vegetation NOT associated with a development consent Local Land Services

The Local Land Services Act 2013 (LLS Act) regulates the management of vegetation on rural land including

  • Clearing native vegetation as part of my every day farming activities on Rural zoned land
  • The new Land Management Codes of Practice
  • Allowable activity exemptions for clearing

Link to LLS Sustainable Land Management information

Questions
Email: slm.info@lls.nsw.gov.au
Phone: 1300 778 080

What is the Native Vegetation Regulatory map and where to view it?

 

NSW Office of Environment and Heritage

A Native Vegetation Regulatory (NVR) Map has been developed and identifies rural land that is regulated under the new land management framework. Landholders can view the categories of vegetation as depicted on the regulatory map for their property.

Link to OEH Native Vegetation Regulatory Map information

The map can be viewed at Native Vegetation Regulatory Map Viewer

Questions
Email: map.review@environment.nsw.gov.au
Phone: 02 6363 8700

Do I require any approvals for my vegetation clearing under Biodiversity Conservation Act 2016? NSW Office of Environment and Heritage

Even though authority may not be required under the State Environmental Planning Policy – Vegetation in Non-Rural Areas (Vegetation SEPP) or Local Land Services Act 2013 (LLS Act), to avoid committing an offence under the Biodiversity Conservation Act 2016 (BC Act), a Threatened species licence, a class of biodiversity conservation licence under Part 2 of the BC Act may still be required from the Office of Environment and Heritage (OEH) if your vegetation clearing will:

  • impact on a threatened species, ecological community or protected plant;
  • impact on the habitat of a threatened species or ecological community; or
  • cause harm to an animal that is a threatened species, part of a threatened ecological community or a protected animal.


Link to OEH Threatened Species Licence Application Form

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Land Management and Biodiversity Reforms – General Information

I am interested in?

Where can I get information?

General information about the land management and biodiversity reforms NSW Office of Environment and Heritage

Web: Link to the Land Management and Biodiversity Conservation Reforms web page

The Biodiversity Offsets Scheme NSW Office of Environment and Heritage

The Biodiversity Conservation Act 2016 (BC Act), together with the Biodiversity Conservation Regulation 2017 (BC Regulation), outlines the framework for addressing impacts on biodiversity from development and clearing. It establishes a framework to avoid, minimise and offset impacts on biodiversity from development through the Biodiversity Offsets Scheme (BOS).

The BOS creates a transparent, consistent and scientifically based approach to biodiversity assessment and offsetting for all types of development that are likely to have a significant impact on biodiversity. It also establishes biodiversity stewardship agreements, which are voluntary in-perpetuity agreements entered into by landholders, to secure offset sites.

Link to OEH Biodiversity Offset Scheme Information Page

Link to LMBC Biodiversity Offset Scheme Information Page

Questions
Email: lmbc.support@environment.nsw.gov.au
Phone: 1800 931 717

Areas of Outstanding Biodiversity Value (AOBVs)

 

 

 

NSW Office of Environment and Heritage

The Biodiversity Conservation Act 2016 (BC Act) gives the Minister for the Environment the power to declare areas of outstanding biodiversity value (AOBVs). AOBVs are special areas that contain irreplaceable biodiversity values that are important to the whole of NSW, Australia or globally.

Link to OEH Areas of Outstanding Biodiversity Value information page

Threatened Species and Communities NSW Office of Environment and Heritage

The Biodiversity Conservation Act 2016 (BC Act) has modernised the process for listing threatened plants and animals. It aligns threat categories with international best practice and provides greater coordination between Australian jurisdictions.

The Biodiversity Conservation Regulation 2017 (BC Regulation) prescribes listing criteria for threatened plants and animals which align with standards developed by the International Union for Conservation of Nature (IUCN).

Link to OEH Threatened Species and Ecological Community information

Link to LMBC Threatened Species and Ecologival Community information

Conserving environmental assets on my property?  What incentives are available? NSW Biodiversity Conservation Trust

The Biodiversity Conservation Act 2016 (BC Act) establishes a new NSW Biodiversity Conservation Trust (BCT), which oversees the new Private Land Conservation program across NSW and also has a key role in the new Biodiversity Offsets Scheme. The NSW BCT manages and delivers private land conservation across NSW with the aim of maintaining a healthy, productive and resilient environment for the community, now and into the future.

Link to Biodiversity Conservation Trust Page

NSW Office of Environment and Heritage

Link to LMBC Biodiversity Conservation Trust information

Questions
Email: bct@environment.nsw.gov.au

Phone: 131 555

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Local Government Information

I am interested in?

Where can I get information?

Who is my Local Government Regional Support Officer?

 

NSW Office of Environment and Heritage

Regional support network

OEH has entered into partnerships with 8 local government organisations support regionally based officers to provide help desk support and capacity build Councils to transition into the Biodiversity Conservation Reforms.

In the Hunter region, the Hunter Joint Organisation of Councils (Hunter Councils) is hosting this position.

Questions
Hunter Regional Support Officer – Carlie McClung
Email: carliem@huntercouncils.com.au
Phone: 4978 4045

I would like to undertake OEH Local Government training NSW Office of Environment and Heritage

In conjunction with training provider Muddy Boots, OEH has developed a training package tailored to the needs of those with an approval role under the Biodiversity Conservation Act 2016 (BC Act).

Training for local government staff will be available in two formats.

  • A Standard Approvers course is available over one day.
  • An Extended Approvers course will include the Standard Approvers course (Day 1) and a more in-depth training on biodiversity assessment processes and the operation of the Biodiversity Offset Scheme (Day 2).

Muddy Boots Biodiversity Offsets Scheme Training (NSW)

Link to Green Caps Muddy Boots training information page

How does the Biodiversity Offset Scheme (BOS) work? NSW Office of Environment and Heritage

The Biodiversity Offsets Scheme (BOS) is a framework to avoid, minimise and offset impacts on biodiversity from development and clearing, and to ensure land that is used to offset impacts is secured in-perpetuity.

There are two key elements to the BOS:

  1. Developers and landholders who undertake development or clearing, generating a credit obligation which must be retired to offset their activity
  2. Landholders who establish a biodiversity stewardship site on their land, generating credits to sell to developers or landholders who require those credits, to securely offset activities at other sites.

Link to OEH Biodiversity Offset Scheme Process information

How can I calculate what payment would be required if a developer was to pay into the Biodiversity Conservation Fund (BCF)? NSW Office of Environment and Heritage

The Offsets Payment Calculator is an interactive tool designed to determine how much a developer must pay into the Biodiversity Conservation Fund (BCF) to satisfy an offset obligation, if they opt to do so as an alternative to obtaining and retiring credits. The primary aim of the calculator is to provide a price that accurately predicts the costs that the Trust will incur in securing each type of biodiversity credit as an offset.

Access to the offsets payment calculator and guide:

Link to OEH Offset Payment Calculator

What Serious and Irreversible Impacts (SAII) and the SAII candidates I need to consider in my Council decisions for local development (Part 4) and Council activities (Part 5)? NSW Office of Environment and Heritage

The concept of serious and irreversible impacts (SAII) is fundamentally about protecting threatened entities that are most at risk of extinction from potential development. The Biodiversity Offsets Scheme (BOS) recognises that there are some types of SAIIs that the community expects will not occur except where the consent authority considers that this type of impact is outweighed by the social and economic benefits that the development will deliver to the State.

Link to OEH Serious and Irreversible Impacts (SAII)

Guidance document – Link to SAII guidance document

Council has determined a Development Application (DA) that has an offset obligation, how do I lodge this with Office of Environment and Heritage (OEH)? NSW Office of Environment and Heritage

OEH is asking all decision makers to notify the Land Management and Biodiversity Conservation (LMBC) Service Centre of the determination of every development or activity to which the Biodiversity Offsets Scheme (BOS) applies.

Decision makers include local councils, Part 5 authorities and the Native Vegetation Panel.

Link to OEH Lodging an offset obligation information

What is biocertification? NSW Office of Environment and Heritage

Biodiversity certification is a streamlined biodiversity assessment process for areas of land that are proposed for development. The process identifies areas that can be developed after they are certified and measures to offset the impacts of development.

Two types of biodiversity certification are available:

  • Standard – available to both landholders and planning authorities
  • Strategic – available only to planning authorities, to support significant regional development and planning processes.

Link to OEH Biodiversity Certification Information

OEH Council specific information

 

NSW Office of Environment and Heritage

Link to OEH Local Government information page

Council FAQs – Link to OEH Biodiversity Reforms Frequently Asked Questions

OLG Council specific information

 

Office of Local Government

Link to OLG Local Government Biodiversity Reforms Information

OLG Biodiversity Council Circulars:

End of Transitional period and Interim Designated Areas (IDAs) 23/2/18 – Link to OLG Biodiversity Circular dated 23/2/2018

Update on the implementation of the BC Act 24/11/17 – Link to OLG Biodiversity Circular dated 24/11/2017

Preparing for implementation of the BC Act 26/7/17 –  Link to OLG Biodiversity Circular dated 26/7/2017

Questions
Email: Elizabeth.dixon@olg.nsw.gov.au
Phone: 44284183

DPE Council specific information

 

Department of Planning and Environment

FAQsLink to DPE Frequently Asked Questions on Vegetation SEPP

Link to DPE Council Frequently Asked Questions on Vegetation SEPP

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