Key Considerations

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

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

Transitional Arrangements in Interim Designated Areas within the Hunter Region

The Minister for the Environment declared seven additional local government areas, and part of one local government area, as Interim Designated Areas (IDA) in February 2018. Six (6) local government areas (LGAs) within the Central Coast and Lower Hunter Region were declared as at an IDA.  This included Central Coast, Cessnock, Lake Macquarie, Maitland, Newcastle and Port Stephens.

These transitional arrangements ceased within the Central Coast and Lower Hunter IDAs on 25 November 2018.

From 25 November 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). The previous transitional arrangements no longer apply.

STRATEGIC BIOCERIFICATION within Hunter Region IDAS 

It is noted that while the transitional period has now ceased, the six declared IDA Councils will continue working with the Department of Planning and Environment (DPE) on the Strategic Biodiversity Certification (Biocertification) of the growth areas within their LGAs.

The objectives of strategic biocertification is to manage conservation and development priorities at a regional scale, remove the need for site based assessment for local development within biocertified development areas, to improve certainty for planning authorities and landholders, and to avoid and minimise impacts on areas that have important biodiversity value and protect those areas.

What is my approval pathway?

This biodiversity assessment and approval pathways flow chart has been developed for our members and is applicable to all LGAs within the Hunter Region from 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

• 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)  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).

DETAILED COUNCIL PATHWAY FLOWCHARTs 

Detailed Council flowcharts are currently being developed as part of the Council Biodiversity Reforms toolkit which will target each of the four-specific biodiversity assessment and approval pathways (Part 4, Part 5, LLS Act and Vegetation SEPP) identified in the summary Council Flowchart.

These are currently available in draft for Council Officers to trial and provide feedback. If you would like an electronic copy, please contact Carlie McClung (Hunter LG Support Officer) at carliem@huntercouncils.com.au

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? 

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.

PLEASE NOTE: This BOS trigger is relevant to the Part 4 Local Development and Vegetation SEPP Pathways.

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 the Biodiversity Values Map and Threshold (BMAT) tool 

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 may also apply to activities within the BVM not related to vegetation clearing defined as prescribed impacts under Clause 6.1 of the Biodiversity Conservation Regulation 2017 (BC Regulation). Clearing of non-native vegetation that is habitat for a threatened species is an example of a ‘prescribed impact’ which will trigger the BOS if the impact is located within the BV Map.

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 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? 

PLEASE NOTE: This BOS trigger is relevant to the Part 4 Local Development and Vegetation SEPP Pathways.

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’

PLEASE NOTE: This BOS trigger is relevant to the Part 4 Local Development and Part 5 Council Activity Pathways.

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.

Threatened Species Test of Significance Guidelines are now available to help applicants or proponents of a development or activity to interpret and apply the factors of the test of significance.

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 published a new version of the BV Map (Version 3) on the 9 November 2018.

The BV Map can be viewed on-line through the Biodiversity Values Map and Threshold tool (BMAT). This replaces the old BV Map viewer and Biodiversity Offset Scheme Entry Tool (BOSET).

There were several changes in the November 2018 update to the BV map including:

• A change in colour from orange to purple including updates in the last 90 days
• Addition of DPE’s Coastal Management SEPP mapping of coastal wetlands and littoral rainforest
• Removal of Bio-certified areas
• Changes arising from landholder-initiated reviews.

The BMAT tool is an on-line tool 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 should be supplied as evidence 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 BMAT user guide 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.

BOS thresholds – What evidence do i need include with my DA?  

Development applications will require the following evidence submitted to demonstrate that the BOS Thresholds (BV Map, Area Clearing Threshold and Test of Significance) do NOT apply to a proposed development.

The Test of Significance (ToS) must be submitted with relevant supporting ecological documentation for the site. The ToS must be applied by an appropriately qualified person with relevant technical expertise and knowledge of the threatened species and their habitat and/or ecological community that have been identified as likely to be impacted by the proposed development.

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

• 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.

• 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 

• 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.

The special transitional arrangements under the Vegetation SEPP (State Environmental Planning Policy (Vegetation in Non-Rural Areas)) have been extended for an additional year from 25 August 2018 until 25 August 2019.

This extension continues only to apply to Councils in the Hunter and Central Coast Region that had not adopted Clause 5.9(9) of their LEP, are located within R5, E2, E3 and E4 zones and if the predominant use of the land is for agriculture.

This extension of the Vegetation SEPP special transitional arrangements only applies to the following six member Councils within the region:

• Maitland City Council
• Mid Coast Council
  Note: applies only within the former LGA boundaries of Greater Taree and Gloucester. Does NOT apply to the former LGA boundary of Great Lakes.
• Muswellbrook Shire Council
• Port Stephens Council
• Singleton Council
• Upper Hunter Shire Council

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).

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.

 Index 

1. Assessment Pathways
2. Vegetation Clearing associated with development
3. Vegetation clearing NOT associated with a development consent
4. Land Management and Biodiversity Reforms – General Information
5. Local Government Information