Biodiversity Conservation Act 2016

This section applies to an application for development consent for State significant development under Part 4 of the Environmental Planning and Assessment Act 1979, or an application for approval for State significant infrastructure under the Environmental Planning and Assessment Act 1979, Division 5.2, that is required under Division 2 to be accompanied by a biodiversity development assessment report.

The relevant authority, when determining in accordance with the Environmental Planning and Assessment Act 1979 any such application, is to take into consideration under that Act the likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report. The relevant authority may (but is not required to) further consider under that Act the likely impact of the proposed development on biodiversity values.

If the relevant authority decides to grant development consent or approval and the biodiversity offsets scheme applies to the proposed development or infrastructure, the conditions of the consent or approval must, subject to subsection (3A), require the applicant to retire biodiversity credits to offset the residual impact on biodiversity values of the number and class specified in the biodiversity development assessment report.

If the relevant authority is satisfied it is justified in the circumstances, the relevant authority may, with the concurrence of the Minister, impose a condition other than to retire the number and class of biodiversity credits that would otherwise be required under subsection (3).

Despite subsection (3A), if the relevant authority is satisfied that it is justified in the circumstances, the relevant authority may, without the concurrence of the Minister, increase the number of biodiversity credits of one or more classes that would otherwise be required to be retired under subsection (3), provided the relevant authority does not reduce the number of any other class of biodiversity credits that would otherwise be required to be retired under subsection (3).

In deciding whether to give concurrence under subsection (3A), the Minister—

must have regard to the following matters—

the biodiversity development assessment report and the impacts of the development or infrastructure on biodiversity values that will not be offset because biodiversity credits are not being retired as specified in the report,

any further assessment report prepared by or for the proponent,

the facilitation of ecologically sustainable development,

any other mandatory matters prescribed by the regulations, and

may have regard to the following matters—

matters the Minister considers relevant,

any other discretionary matters prescribed by the regulations.

Within 14 days, or another period prescribed by the regulations, after receiving a written request for concurrence from a relevant authority, the Minister administering this Act must—

decide whether to give concurrence under subsection (3A), and

give the relevant authority written notice of the decision.

The Minister may give concurrence under subsection (3A) with or without conditions.

If the Minister gives concurrence under subsection (3A) subject to conditions, the conditions must be included as conditions of the development consent or approval.

If the Minister has not given the relevant authority notice under subsection (3D) at the end of the relevant period, the Minister is taken to have given concurrence without conditions.

The regulations may make further provision about matters relating to the concurrence of the Minister under subsection (3A), including—

matters relating to the processes for obtaining and deciding whether to give concurrence, including the following—

time frames within which relevant authorities must seek concurrence,

periods of time that must not be taken into account in calculating the expiration of the period within which the Minister must decide whether to give concurrence,

notice and information requirements,

provision for development consents or approvals granted without concurrence, or without properly obtained concurrence, to be invalid and of no effect, and

matters relating to conditions of concurrence, including the following—

the effects of failing to comply with conditions,

provision for development consents or approvals that do not include, or properly include, the conditions as conditions of the development consents or approvals to be invalid and of no effect.

A condition to retire biodiversity credits is required to be complied with before any development is carried out that would impact on biodiversity values. If the retirement of particular biodiversity credits applies to a stage of the development, compliance with the condition for their retirement is postponed until it is proposed to carry out that stage of the development.

This section does not operate to limit the matters that the relevant authority may take into consideration in relation to the impact of proposed development on biodiversity values, the measures that the relevant authority may require to avoid and minimise the impacts or the power of the relevant authority to refuse to grant consent or approval because of those impacts.