Environmental Warfare
In a submission last week to the NSW Government, the Property Council has warned the proposed regulations to the Biodiversity Conservation (BC) Act will establish a new field of environmental litigation in relation to urban development.
The prediction of costly and embarrassing cases in the Land and Environment Court comes from a new class of prohibited development where “Serious and Irreversible Impacts” (SII) on biodiversity are assessed. The draft regulations would make it a mandatory requirement for councils to refuse development on these grounds – trashing long established principles of sustainable development which demand the integration of economic, social, and environmental considerations.
Further conflict is introduced by the replacement of “critical habitat” with the broader notion of “areas of outstanding biodiversity value”. These provisions will green-light environmental groups to mount political campaigns aimed at having the Minister use these new powers.
In turn, this could result in interim protection orders to stop a development while an area is assessed for declaration as having “outstanding biodiversity value”. And ultimately, it could prevent developers acting on approved schemes.
The proposed regulations would make other material changes to the status quo that constrain land supply and put upward pressure on housing prices, including;
- Establishing a compulsory biodiversity offsets scheme (BOS), replacing existing voluntary schemes.
- A new BOS requiring full offsetting for urban development at a development application stage.
- Allowing consent authorities to “double-dip” by imposing conditions over-and-above full offsetting.
We have submitted these reforms will render strategic planning and zoning a useless exercise. It simply makes no sense for permissible development to be subject to mandatory refusal on biodiversity grounds at the development assessment stage. Clearly, these decisions should be made upfront at the strategic planning and zoning stage, before proponents make a significant investment of time and money.
Other aspects of the government’s biodiversity conservation reform agenda will add cost and uncertainty to residential development in NSW – including for “Mum and Dad” investors wishing to undertake small subdivisions on the urban fringes. In combination, the proposed reforms would act as a hand-brake on housing supply and cause the affordability crisis to deepen.
Notwithstanding, the submission finds OEH tools for calculating offsets are variously incomplete, inaccurate, and untrustworthy. As such, the Minister is being urged to pause the reform timeline and extend the consultation period to ensure a well understood and accepted outcome.
A copy of the submission can be found here.