Reforms create industry concerns

Article provided by Dentons.

Developers with existing concept plan approvals may find these approvals subject to the new biodiversity regime, and that their existing biodiversity measures fail to meet the requirements of the new regime. Some of the largest residential subdivisions throughout NSW occur under such concept plan approvals.

Currently there are no transitional provisions in the new biodiversity legislation or the Environmental Planning and Assessment Act that deal with how the biodiversity impacts of a development application lodged under an existing concept plan approval will be addressed.  Biodiversity impacts will generally have already been considered and dealt with as part of the concept approval, for example by the developer entering into a VPA requiring the public dedication of certain offset land. 

Under the former biodiversity regime, the biodiversity impacts of one stage of an approved concept plan development could easily be addressed by applying the 7 part test of significance, with reference to the offsets and mitigation measures approved as part of the concept plan.  This would result in a finding that the particular stage would not meet the test of significance, and no further assessment of biodiversity impacts was required.

However, under the new regime, in addition to the test of significance, there is a new ground upon which a development will be deemed to have a significant impact, based on specified clearing thresholds, which are quite low.  If a clearing threshold is reached or exceeded, the development application will be captured by the new biodiversity regime and must be accompanied by a Biodiversity Development Assessment Report.  A council has no discretion to waive or vary this requirement.

There is a risk that future staged development applications lodged under an existing concept plan approval, which has already considered and addressed biodiversity impacts under the former regime, will need to revisit biodiversity issues.  Because of the differences in assessment methodology and offset requirements between the two regimes, there is also a real risk that further offsetting measures will be required.

For a video on the issue and further information click here.