The area of impact can be defined by the total area which will be cleared or disturbed as part of the development. From the 25th November 2018 Councils are required to assess all applications, including subdivisions, to include a reasonable extent of clearing.

The area of impact needs to be calculated for the whole development including asset protection zones required by the Rural Fire Service, roads, services, OSSM, fence lines and any other impacts to vegetation. The entire area proposed to be cleared is required to be identified on all plans.

Site plans are important in defining the proposed area of impact and extent of clearing:

• Subdivisions must include all vegetation likely to be cleared for the purposes for which the land is to be subdivided
• Development footprint must include proposed dwelling footprint and all ancillary requirements
• Ancillary requirements include Asset Protection Zones (APZs), driveways, any additional bushfire access requirements, infrastructure requirements such as power, water and wastewater treatment,
• Proposed avoid areas – any retained vegetation on site

OEH and OLG have developed a navigator to support both proponents and consent authorities to work through which assessment and approval pathway applies to an activity.

Applications for Biodiversity Stewardship sites are made to the Biodiversity Conservation Trust (BCT). The BCT will assess the landholder’s application against relevant legal and technical requirements and agree on the terms of the Biodiversity Stewardship Agreement. More information can be found at the BCT website.

Office of Environment and Heritage have provided information on credit trading and stewardship sites.

Yes all applications received after the 25 November, 2018 will be assessed under the new legislation.

The biodiversity impacts of both the approved development and any additional clearing (modification) are used to consider the cumulative effect of the ‘as modified’ project for the purpose of determining whether the BOS applies. The total clearing footprint must be assessed against the BOS thresholds (including the test of significance).

If the ‘as modified’ project is likely to significantly affect threatened species (triggers the BOS):

• A BDAR must be prepared by an accredited assessor for the biodiversity impact associated with the modification.
• The BDAR must include a summary of the original biodiversity impacts, any offsets relating to those impacts and the status of the delivery of those offsets.
• Modification Offset Requirements – offsets are only required to be calculated for the modification not the original approved clearing.

The Biodiversity Offsets Scheme (BOS) will apply to local developments which will disturb or clear both native and non-native vegetation that are likely to significantly affect threatened species. These are defined as a development that:

• impacts on an Area of Outstanding Biodiversity Value or
• exceeds the biodiversity offsets scheme threshold or
• is likely to significantly affect threatened species, ecological communities or their habitats according to the test of significance in section 7.3 of the BC Act.

Visit the online decision support tool to help determine the correct assessment pathway for development applications.

The Biodiversity Conservation Regulation 2017 sets out offset rules that govern the type of biodiversity credits that can be used for offsetting. The offset rules also govern how a biodiversity certification applicant or the Biodiversity Conservation Trust can meet an offset requirement.

Under the BOS, developers have the option to buy credits directly from landholders or pay into the Biodiversity Conservation Fund to meet an offset obligation. The Biodiversity Conservation Trust is then responsible for securing the offset. The Offsets Payment Calculator determines how much a proponent must pay into the Biodiversity Conservation Fund to meet an offset obligation.

View more information about the BOS and the Offsets Payment Calculator.

Previously

• Impacts to biodiversity were assessed through flora and fauna assessments,
• Impacts to threatened entities were assessed through 7 part tests under section 5A Environmental Planning and Assessment Act 1979 EP&A Act),
• Assessors were not required to be accredited to conduct threatened species assessments and associated reporting,

Guidelines and triggers were not clearly stated in the legislation with issues often needing mediation and arbitration in court.

Moving forward

Triggers for biodiversity assessments and offsets have been embedded in the legislation,

Assessors for clearing of vegetation triggered into the Biodiversity Offsets Scheme (BOS) must be accredited,

Council is responsible for deciding whether there is a serious and irreversible impact from a proposed local development. Council must refuse a Part 4 of the EP&A Act (i.e. local development) where a SAII is identified.

Triggers which require a Biodiversity Assessment Method (BAM) to be carried out by an accredited assessor

• Any vegetation located within the purple areas of the Biodiversity Values Map, or
• The clearing exceeds specific area thresholds (refer Section 7.3 Of the Biodiversity Conservation Regulations), or
• The impacts have been assessed as significant using the test of significance (Part 7.3 of the BC Act)

Clearing of native vegetation that exceeds the BOS threshold will require approval from the Native Vegetation Panel or delegate.

For clearing that does not exceed the biodiversity offset scheme threshold, Council regulates the clearing of native vegetation that is not authorised by development consent through using the DCP and permits issued through Council or under the Vegetation SEPP.

For clearing of threatened species, threatened ecological communities or protected plants that are not regulated by the DCP, there will be no defense to the offence of picking plants in the BC Act. Persons desiring to gather, take, cut, remove from the ground, destroy, poison, crush or injure the plant or any part of a threatened species, ecological community, habitat for a threatened species or protected plant that does not require authorisation from Council will need to seek a biodiversity conservation license or another defense to lawfully undertake these actions. Biodiversity conservation licenses are issued by OEH and further information is available on the License to harm a threatened species or ecological community webpage.

The Biodiversity Reforms are an integrated package of legislative changes that feature:

• New arrangements that allow land owners to improve productivity while responding to environmental risks,
• New ways to assess and manage the biodiversity impacts of development,
• A new State Environmental Planning Policy that outlines the method for assessing and offsetting impacts on trees and native vegetation in urban areas,
• Significant investment in conserving high value vegetation on private land,
• A risk-based system for regulating human and business interactions with native plants and animals,
• Streamlined approvals and dedicated resources to help reduce the regulatory burden.

The Biodiversity Conservation Act 2016 and the Local Land Services Act 2013 commenced on 25 August 2017. Until 24 November 2018 transitional arrangements have been in place for the Central Coast for some sections of the legislation, including the biodiversity offsets scheme for local development that is a key aspect of the Biodiversity Conservation Act (BC Act).

The Office of Environment and Heritage (OEH), Local Land Services (LLS), The Biodiversity Conservation Trust (BCT) and the Department of Planning and Environment (DPE) each administer components of the new legislation. Visit the NSW Government’s land management and biodiversity conservation reforms webpage for information on the scope of the changes.

From 25 November 2018, any new application for development consent to Central Coast Council or modification to an approved development under Part 4 of the Environmental Planning and Assessment Act 1979 will be subject to the biodiversity assessment requirements of the Biodiversity Conservation Act 2016.

Any application for the removal of trees or vegetation which is not covered in Council’s DCP will be subject to the requirements of the Local Land Services Act 2013.

If the BOS applies, developers or landholders (‘proponents’) who want to undertake development or clearing need to follow the following steps:.

Step 1 – The proponent determines whether the Biodiversity Offsets Scheme applies using the Biodiversity Values Map and Threshold Tool (BMAT tool)

Step 2 – An accredited assessor applies the Biodiversity Assessment Method and offsetting rules to the activity

Step 3 – The consent authority assesses the application and determines whether to approve or refuse the application

Step 4 – The consent authority determines the application and sets the offset obligation

Step 5 – The proponent satisfies its credit obligation and can begin the approved activity.

Visit the Office of Environment and Heritage website for more information on BOS.

A Biodiversity Development Assessment Report (BDAR) will need to be submitted with applications for development which trigger entry into the BOS. This is a new requirement. The BDAR must be prepared by an Ecologist who is an Accredited Assessor under the Biodiversity Conservation Act. Accredited Assessors are listed on a public register.

The biodiversity impacts of developments that do not trigger the BOS will continue to be assessed under section 4.15 (formerly 79C) of the Environmental Planning and Assessment Act 1979. If the BOS does not apply to your application, the development application is to be accompanied by evidence that the BOS thresholds have not been triggered.

Evidence required by Council:

1. Adequate representation of the extent of the clearing including access, services, unconstrained parcel, fencing, bushfire Asset Protection Zones, on site wastewater management-
2. Biodiversity Offset Scheme (BOS) Entry Threshold Map generated using the BMAT Tool
3. Council’s Flora and Fauna guidelines still apply, inclusive of a test of significance addressing any impacts listed species, communities and their habitats.

All local developments now required to show avoidance of highest areas of biodiversity value.

The Biodiversity Conservation Act 2016 requires that developments must attempt to avoid, manage and finally offset impacts to biodiversity values. Council expects that all developments include an assessment as to the areas of highest biodiversity value which will vary depending on the site but may include areas of Endangered Ecological Communities or areas that contain high densities of hollow-bearing trees.