2010
2010
2010-07-03
act
government
publicspecial
act.reprint
allinforce
2010-05-20
2010-05-20
0
2010-07-03
act-1987-015
2010
none
act-2010-039
21b280f7-fbf1-408a-ac5b-2be6cd8cfba3
d135c517-7768-472a-bb3e-771e4588a7ce
Repeal:
The Act was repealed by sec 30C of the Interpretation Act 1987 No 15 with
effect from 3.7.2010.
An Act to amend the Threatened Species Conservation Act
1995 to make further provision for biodiversity
certification and to make related amendments to other
legislation.
1Name of
Act
This Act is the Threatened
Species Conservation Amendment (Biodiversity Certification) Act
2010.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
Schedule 1Amendment of Threatened Species Conservation Act 1995 No
101
[1]Section 4
Definitions
Insert in alphabetical order in section 4
(1):
consent
authority has the same meaning as in the Planning
Act.
owner, in relation to land,
includes:
(a)
every person who, either at law or in
equity:
(i)
is entitled to the land for any estate of
freehold in possession, or
(ii)
is a person to whom the Crown has lawfully
contracted to sell the land under the Crown Lands Act
1989 or any other Act relating to the alienation of lands
of the Crown, or
(iii)
is entitled to receive, or is in receipt of, or
if the land were let to a tenant would be entitled to receive, the rents and
profits in respect of the land, whether as beneficial owner, trustee,
mortgagee in possession or otherwise, and
(b)
a person who leases land under the Crown Lands Act 1989, the Crown Lands (Continued Tenures) Act
1989 or the Western Lands Act
1901), and
(c)
any other person who, under the regulations, is
taken to be the owner of land.
Planning
Act means the Environmental
Planning and Assessment Act 1979.
[2]The whole Act (except the long
title and Schedule 7)
Omit “Environmental
Planning and Assessment Act 1979” wherever
occurring.
Insert instead “Planning
Act”.
[3]Part 7, Division 5
Biodiversity certification of environmental planning
instruments
Omit the Division.
[4]Part 7AA
Insert after Part 7:
Part 7AABiodiversity
certification
Division 1Preliminary
126GDefinitions
In this Part:
approved
measures under a biodiversity certification means the
approved measures as specified in an order that confers, extends or modifies
the biodiversity certification.
biodiversity certification means
biodiversity certification conferred on land under this Part.
biodiversity certification
assessment—see section 126P.
biodiversity certification assessment
methodology or methodology means the rules made
under section 126S.
biodiversity certified land means
land on which biodiversity certification has been conferred and in respect of
which biodiversity certification is in force.
government authority means a
Minister or a public authority, but does not include a State owned
corporation.
party to a biodiversity
certification means a person or body identified in an order under this Part as
a party to the biodiversity certification.
planning
authority means:
(a)
the Minister for Planning, or
(b)
a local council, or
(c)
a determining authority (within the meaning of
Part 5 of the Planning Act), or
(d)
the Director-General of the Department of
Planning, or
(e)
any other person or body declared by the
regulations to be a planning authority.
Division 2Biodiversity
certification
126HBiodiversity
certification
The Minister may, by order published in the
Gazette, confer biodiversity certification on specified
land.
126IEffect of biodiversity
certification
(1)Projects under Part 3A of the
Planning Act
The environmental assessment requirements for the
approval of a project, or a concept plan for a project, under Part 3A of the
Planning Act do not require an assessment of the impact of the project on
biodiversity values if the project is carried out or proposed to be carried
out on biodiversity certified land.
(2)Development under Part 4 of
the Planning Act
Development on biodiversity certified land is
taken, for the purposes of Part 4 of the Planning Act, to be development that
is not likely to significantly affect any threatened species, population or
ecological community under this Act, or its habitat.
(3)
A consent authority, when determining a
development application in relation to development on biodiversity certified
land under Part 4 of the Planning Act, is not required to take into
consideration the likely impact of the development on biodiversity values
(despite any provision of the Planning Act or any regulation or instrument
made under that Act).
(4)Activities under Part 5 of the
Planning Act
An activity to which Part 5 of the Planning Act
applies which is carried out or proposed to be carried out on biodiversity
certified land is taken, for the purposes of Part 5 of the Planning Act, to be
an activity that is not likely to significantly affect any threatened species,
population or ecological community under this Act, or its
habitat.
(5)
A determining authority under Part 5 of the
Planning Act is not required under that Part to consider the effect on
biodiversity values of an activity carried out on biodiversity certified land
(despite section 111 of the Planning Act).
(6)Native Vegetation
Act
The Native Vegetation
Act 2003 does not apply to biodiversity certified
land.
Division 3Application for biodiversity
certification
126JWho may apply for biodiversity
certification
(1)
An application for biodiversity certification may
be made to the Minister by any planning authority.
(2)
An application may also be made jointly by 2 or
more planning authorities.
126KCertification not to be
conferred without biodiversity certification strategy
(1)
Biodiversity certification may be conferred on
land only if the applicant has a biodiversity certification
strategy.
(2)
A biodiversity certification strategy
is a policy or strategy for the implementation of conservation measures to
ensure that the overall effect of biodiversity certification is to improve or
maintain biodiversity values.
(3)
The biodiversity certification strategy is to be
used as the basis for the assessment of the application for biodiversity
certification.
(4)
A biodiversity certification strategy is to
identify the following:
(a)
the land proposed for biodiversity
certification,
(b)
the land proposed for biodiversity conservation
(being any land on or in respect of which conservation measures are to be
implemented),
(c)
the proposed conservation
measures,
(d)
any person or body proposed as a party to the
biodiversity certification.
Note—
Parties to a biodiversity certification are
responsible for the implementation of the proposed conservation
measures.
(5)
The land proposed for biodiversity conservation
must comply with any requirements (whether geographic or scientific) provided
for by the biodiversity certification assessment
methodology.
(6)
The Minister may issue guidelines for the
preparation of biodiversity certification strategies.
126LConservation
measures
(1)
Each of the following measures is a conservation measure for the
purposes of this Part:
(a)
the adoption or continuation of development
controls under the Planning Act that limit or prohibit development on land or
the taking of any other measures under that Act that conserve or enhance the
natural environment,
(b)
the entering into of a biodiversity certification
agreement under this Part,
(c)
the entering into of a planning agreement under
the Planning Act that makes provision for development contributions to be used
or applied towards the conservation or enhancement of the natural
environment,
(d)
the making of a State infrastructure contribution
under the Planning Act for the conservation or enhancement of the natural
environment,
(e)
the entering into of a conservation agreement
under the Environment Protection and Biodiversity Conservation Act
1999 of the Commonwealth,
(f)
the reservation of land under Part 4 of the NPW
Act,
(g)
the entering into of a conservation agreement
under the NPW Act in relation to land,
(h)
the entering into of a trust agreement under the
Nature Conservation Trust Act
2001,
(i)
the entering into of a biobanking agreement under
Part 7A of this Act,
(j)
the acquisition or retirement of biodiversity
credits under Part 7A of this Act,
(k)
the adoption of a plan of management for a
reserve under Division 6 of Part 5 of the Crown Lands Act
1989,
(l)
the adoption of a plan of management for land
under Division 2 of Part 2 of Chapter 6 of the Local Government
Act 1993,
(m)
the dedication or setting apart of any land as a
flora reserve under section 25A of the Forestry Act
1916,
(n)
consent to a property vegetation plan for land
under the Native Vegetation Act
2003 (not being a plan that proposes broadscale clearing
of native vegetation within the meaning of that Act),
(o)
any other measure that the Minister determines to
be a conservation measure.
(2)
This section is subject to any requirements of
the biodiversity certification assessment methodology.
126MBiodiversity certification
application
(1)
An application for biodiversity certification
must be made to the Minister.
(2)
The application must be made in a form approved
by the Minister.
(3)
The application must include particulars of the
applicant’s biodiversity certification strategy.
(4)
The Minister may require an applicant to submit
evidence that any person or body identified in the biodiversity certification
strategy as a proposed party to the biodiversity certification consents to
being made a party to the biodiversity certification.
(5)
The regulations may require other things to be
submitted with the application.
(6)
A planning authority may enter into an agreement
with a person who requests the authority to make an application for
biodiversity certification for the payment of any costs and expenses incurred
by the authority in undertaking studies and other matters required in relation
to the application.
126NPublic notification
requirements in relation to application
(1)
Land cannot be biodiversity certified unless the
applicant has complied with the public notification requirements in relation
to the application for biodiversity certification.
(2)
The public notification requirements in relation
to an application for biodiversity certification are as follows:
(a)
an applicant must publish notice of the
application for biodiversity certification in a newspaper circulating
generally throughout the State and on the applicant’s
website,
(b)
the notice must invite the public to make
submissions relating to the application before a closing date for submissions
specified in the notice (being a date that is not less than 30 days after the
date the notice is first published in a newspaper under this
section),
(c)
until the closing date for submissions, an
applicant is to cause copies of the application to be exhibited at its
principal office in New South Wales and on its website,
(d)
an applicant must provide a report to the
Minister that indicates the applicant’s response to any submissions
relating to the application that were received before the closing
date.
(3)
A planning authority may vary its application for
biodiversity certification (including its biodiversity certification strategy)
as a consequence of any submission received following public notification of
the application or for any other reason.
(4)
Further public notification of the application,
as varied, is not required unless the Minister otherwise
directs.
Division 4Assessment of application for
biodiversity certification
126OBiodiversity certification to
be conferred only if biodiversity values are improved or
maintained
The Minister may confer biodiversity
certification only if biodiversity certification improves or maintains
biodiversity values.
126PWhen does biodiversity
certification improve or maintain biodiversity values
(1)
For the purposes of this Part, biodiversity
certification improves or maintains biodiversity values only if the Minister
determines, on the basis of a biodiversity certification assessment, that the
overall effect of biodiversity certification is to improve or maintain
biodiversity values.
(2)
A biodiversity certification
assessment is an assessment of the effect of biodiversity
certification on biodiversity values.
(3)
A biodiversity certification assessment is to be
made in accordance with the biodiversity certification assessment methodology,
and not otherwise.
(4)
This section applies to biodiversity
certification as extended or modified under this Part in the same way as it
applies to the conferral of biodiversity certification.
126QMinor variations to
methodology permitted
(1)
The Minister may, for the purpose of a
biodiversity certification assessment, permit a variation to be made to the
biodiversity certification assessment methodology if the Minister is of the
opinion that:
(a)
the variation to the methodology is minor,
and
(b)
the variation would result in a determination
that the overall effect of biodiversity certification is to improve or
maintain biodiversity values, and
(c)
strict adherence to the methodology is in the
particular case unreasonable and unnecessary.
(2)
A variation to the biodiversity certification
assessment methodology is not to be permitted if the Minister is of the
opinion that the variation is inconsistent with the classification of a plant
species as a threatened species or as a component of an endangered ecological
community.
(3)
The Minister must cause his or her reasons for
permitting a variation to be made to the biodiversity certification assessment
methodology to be published on the website of the
Department.
(4)
The regulations may make further provision for
the circumstances in which the Minister may permit a variation to be made to
the biodiversity certification assessment methodology under this
section.
126RRefusal to confer
certification
(1)
The Minister must refuse to confer biodiversity
certification if biodiversity certification does not improve or maintain
biodiversity values.
(2)
In addition, the Minister may refuse to confer
biodiversity certification:
(a)
if the application for certification does not
comply with this Part or the regulations, or
(b)
if, in the opinion of the Minister, insufficient
information is provided to enable biodiversity certification to be conferred,
or
(c)
if, in the opinion of the Minister, the
certification application does not sufficiently address the biodiversity
certification assessment methodology, or
(d)
for any other reason the Minister considers
sufficient.
Division 5Biodiversity certification
assessment methodology
126SBiodiversity certification
assessment methodology
(1)
The Minister may, by order published in the
Gazette, make rules with respect to the circumstances in which biodiversity
certification is to be regarded as improving or maintaining biodiversity
values.
(2)
In particular, the rules are to establish a
methodology for assessing:
(a)
the loss of biodiversity values on land proposed
for biodiversity certification, and
(b)
the impact, or likely impact, of proposed
conservation measures on land proposed for biodiversity conservation
(including conservation measures that are proposed to be implemented in the
future).
(3)
The rules may make provision for any loss of
biodiversity values that cannot be offset by conservation
measures.
(4)
The rules must comply with any requirements of
the regulations.
(5)
Subject to any requirements of the regulations,
refraining from doing any thing (whether or not that thing was being done
beforehand) may be treated by the rules as an action that improves
biodiversity values, if refraining from doing that thing improves biodiversity
values or the long term security of biodiversity values.
(6)
A methodology provided for by the rules may
include provision for the use of specified computer programs or
databases.
(7)
A decision of the Director-General made under the
rules is final and not subject to appeal.
126TEstablishment of
methodology
The biodiversity certification assessment
methodology is not to be made unless:
(a)
notice of the proposed methodology has been
given, in accordance with the public consultation requirements applicable to
the methodology, and
(b)
the Director-General has provided a report to the
Minister on the public consultation, and
(c)
the Minister has considered the
report.
126UChanges to
methodology
(1)
The Minister may, by order published in the
Gazette, change the biodiversity certification assessment methodology
by:
(a)
amending the methodology, or
(b)
repealing and replacing the
methodology.
(2)
The biodiversity certification assessment
methodology is not to be changed unless:
(a)
notice of the proposed change has been given, in
accordance with the public consultation requirements applicable to the
methodology, and
(b)
the Director-General has provided a report to the
Minister on the public consultation, and
(c)
the Minister has considered the
report.
126VPublic consultation
requirements applicable to methodology
(1)
The public consultation requirements applicable
to the methodology are as follows:
(a)
the Director-General is to cause notice of the
proposed methodology or change to the methodology (as the case requires) to be
published in a newspaper circulating generally throughout the State and on the
website of the Department,
(b)
the notice must invite the public to make written
submissions to the Director-General on the proposal before a closing date for
submissions specified in the notice (being a date that is not less than 30
days after the date the notice is first published in a newspaper under this
section),
(c)
until the closing date for submissions, the
Director-General is to cause copies of the proposed methodology or change to
the methodology, and any other explanatory material or information the
Director-General considers appropriate, to be exhibited at the head office of
the Department and on the website of the
Department.
(2)
After the closing date for submissions, the
Director-General is to provide a report to the Minister on the public
consultation that:
(a)
summarises the main issues raised in any
submissions received before the closing date for submissions,
and
(b)
makes such recommendations as the
Director-General considers appropriate in relation to those
submissions.
126WMinor changes to methodology
not requiring public consultation
(1)
The Minister may make an order that amends the
biodiversity certification assessment methodology without complying with the
public consultation requirements applicable to the methodology if:
(a)
the Minister is of the opinion that the amendment
is of a minor nature, and
(b)
the Minister certifies in writing that the
amendment is of a minor nature.
(2)
Without limiting the circumstances in which an
amendment can be regarded as being of a minor nature, amendments of a minor
nature include amendments that:
(a)
correct any minor error or omission in the
biodiversity certification assessment methodology, such as a spelling or
grammatical error, a redundant or obsolete reference, obviously missing words,
or wrong cross-references, or
(b)
make any other change necessary to address
matters that are of a consequential, transitional, machinery or other minor
nature.
126XPublication of
methodology
(1)
The Director-General is to ensure that a copy of
the biodiversity certification assessment methodology is available for public
inspection:
(a)
at the head office of the Department,
and
(b)
on the website of the
Department.
(2)
Copies of the biodiversity certification
assessment methodology, or of any part of the methodology, are to be made
available to the public on request, on payment of a fee (if any) fixed by the
Minister.
Division 6Conferral, extension and
review of biodiversity certification
126YApproved measures under
biodiversity certification
(1)
The Minister may, in an order conferring
biodiversity certification, specify any approved measures under the
biodiversity certification.
(2)
The following matters may be specified as
approved measures under a biodiversity certification:
(a)
the proposed conservation measures on which the
relevant biodiversity certification assessment was based,
(b)
any requirements, as determined by the Minister,
as to the timing of the implementation of the proposed conservation
measures,
(c)
any requirements, as determined by the Minister,
as to monitoring, reporting or auditing of the implementation of proposed
conservation measures,
(d)
any other matters provided for by the
regulations.
(3)
This section applies to an order extending or
modifying biodiversity certification in the same way as it applies to an order
conferring biodiversity certification.
126ZParties to biodiversity
certification
(1)
The Minister may, in an order conferring
biodiversity certification, identify the party or parties to the biodiversity
certification.
(2)
The following persons or body may be identified
as parties to a biodiversity certification:
(a)
the planning authority, or planning authorities,
that applied for the biodiversity certification,
(b)
any person or body proposed by the applicant as a
party to the biodiversity certification who consents to being made a party to
the biodiversity certification.
(3)
After biodiversity certification is conferred,
the Minister may, by further order published in the Gazette, identify a person
or body as a party to the biodiversity certification (in addition to, or in
substitution for, any person or body previously identified as a party), but
only if the person or body to be identified as a party consents to being made
a party to the biodiversity certification.
(4)
The regulations may make further provision for
the circumstances in which a person or body may be identified as a party to a
biodiversity certification in addition to, or in substitution for, another
person or body.
(5)
Subject to the regulations, this section applies
to an order extending or modifying biodiversity certification in the same way
as it applies to an order conferring biodiversity
certification.
(6)
Consent to being made a party to a biodiversity
certification cannot be withdrawn by a person or body after the person or body
has been made a party to the biodiversity certification.
126ZADuration of biodiversity
certification
(1)
Biodiversity certification remains in force
indefinitely or for such period as the Minister determines and specifies in
the order conferring certification.
(2)
This section does not prevent the extension of
biodiversity certification or the further biodiversity certification of
land.
126ZBExtension of biodiversity
certification
(1)
The Minister may, by order published in the
Gazette, extend the period for which any biodiversity certification remains in
force.
(2)
Biodiversity certification may be extended at any
time before it expires.
(3)
Biodiversity certification may be extended only
if biodiversity certification, as extended, improves or maintains biodiversity
values.
Note—
See Division 4 for the circumstances in which
biodiversity certification improves or maintains biodiversity
values.
(4)
A biodiversity certification assessment in
relation to the proposed extension is to take account of any proposed
modifications to the description of the land proposed for biodiversity
certification and the approved measures under the biodiversity certification
(whether the modifications are proposed as a result of changes to the relevant
biodiversity certification strategy or otherwise).
(5)
A biodiversity certification assessment in
relation to the proposed extension may take account of the impact of
conservation measures that have already been implemented in connection with
the biodiversity certification.
(6)
The regulations may make further provision for or
with respect to the extension of biodiversity
certification.
126ZCReview of biodiversity
certification
(1)
The Minister is to undertake periodic reviews of
any biodiversity certification.
(2)
A review is not required if less than 15 years
has elapsed since the biodiversity certification was conferred or the most
recent review was completed.
Division 7Enforcement of approved
measures
126ZDCompliance with approved
measures
(1)
The Minister may, by order in writing, require a
party to a biodiversity certification to rectify any failure to comply with
the approved measures under the biodiversity certification:
(a)
by implementing any of the approved measures
within a time specified in the order, or
(b)
by implementing any equivalent conservation
measures within a time specified in the order.
(2)
If a party to biodiversity certification fails to
comply with the order within the specified time, or any further time allowed
by the Minister, the Minister may, by order in writing, require the party to
pay to the Minister a specified penalty.
(3)
The penalty is to be the amount the Minister
considers reasonable to cover the costs of implementing the relevant approved
measures or equivalent conservation measures.
(4)
A penalty imposed under this section may be
recovered by the Minister as a debt due to the Crown in any court of competent
jurisdiction.
(5)
This section does not limit the power of the
Minister to suspend, revoke or modify biodiversity certification for a failure
to comply with the approved measures under a biodiversity
certification.
126ZEEquivalent conservation
measures
(1)
A reference in this Part to equivalent conservation measures, in
relation to the approved measures under a biodiversity certification, is a
reference to conservation measures that are determined by the Minister to
achieve the same biodiversity standard as the approved
measures.
(2)
The biodiversity standard of the approved
measures under a biodiversity certification is the standard by which
biodiversity values are improved or maintained by the biodiversity
certification, as quantified by the biodiversity certification assessment on
which the conferral of biodiversity certification was
based.
126ZFAppeals
(1)
A party to a biodiversity certification who is
dissatisfied with a decision of the Minister to require the party to rectify a
failure to comply with the approved measures may appeal to the Land and
Environment Court against the decision.
(2)
A party to a biodiversity certification who is
dissatisfied with a decision of the Minister to require the party to pay a
penalty under this Division may appeal to the Land and Environment Court
against the decision.
(3)
An appeal may be made by a party to a
biodiversity certification no later than 3 months after being notified by the
Minister of the decision.
(4)
This section does not confer a right of appeal on
a party to a biodiversity certification if the party is a government
authority.
126ZGDisputes between Minister and
other government authorities
(1)
A dispute between a government authority which is
a party to a biodiversity certification and the Minister as to any of the
following matters may be referred to the Premier for settlement:
(a)
a failure by the party to comply with any of the
approved measures under the biodiversity certification or to implement
equivalent conservation measures,
(b)
a decision of the Minister to require the party
to pay a penalty under this Division.
(2)
The intra-government dispute resolution
arrangements apply in respect of the dispute.
Note—
See Division 10 for intra-government dispute
resolution arrangements.
Division 8Biodiversity certification
agreements
126ZHBiodiversity certification
agreements
(1)
The Minister may enter into an agreement with a
person in connection with biodiversity certification (including a proposal to
confer, modify or extend biodiversity certification).
(2)
The agreement may make provision for any or all
of the following:
(a)
requiring the person to make monetary
contributions to the Minister for the purpose of improving biodiversity
values,
(b)
requiring the person to dedicate land for
conservation purposes,
(c)
requiring the person to carry out specified
actions, or to refrain from carrying out specified actions, on land owned by
the person for the purpose of improving biodiversity
values,
(d)
providing for any other conservation measures
that the person agrees to implement,
(e)
requiring the person to provide security for the
performance of any of the person’s obligations in connection with
biodiversity certification,
(f)
providing for the timing of the implementation of
any of the person’s obligations in connection with biodiversity
certification,
(g)
providing for monitoring, reporting and audit
requirements,
(h)
providing for any other matter relating to
biodiversity certification.
(3)
For the purposes of this Part, the agreement is a
biodiversity certification
agreement.
(4)
The Minister must not enter into a biodiversity
certification agreement relating to Crown land (within the meaning of the
Crown Lands Act 1989) except with the
consent of the Minister administering that Act.
126ZIDuration of
agreements
(1)
A biodiversity certification agreement has effect
from a day, or on the happening of an event, specified in the
agreement.
(2)
A biodiversity certification agreement has effect
indefinitely, or for the period specified in the
agreement.
126ZJRegistered agreements run with
land
(1)
A biodiversity certification agreement that is
registered by the Registrar-General under this section is binding on, and is
enforceable against, the owner of the land from time to time as if each owner
for the time being had entered into the agreement.
(2)
A biodiversity certification agreement can be
registered by the Registrar-General under this section if the following
persons agree to its registration:
(a)
if the agreement relates to land under the
Real Property Act 1900—each person
who has an estate or interest in the land registered under that
Act,
(b)
if the agreement relates to land not under the
Real Property Act 1900—each person
who is seised or possessed of an estate or interest in the
land.
(3)
On lodgment by a person of an application for
registration in a form approved by the Registrar-General, the
Registrar-General is to register a biodiversity certification
agreement:
(a)
by making an entry in the relevant folio of the
Register kept under the Real Property Act
1900 if the agreement relates to land under that Act,
or
(b)
by registering the agreement in the General
Register of Deeds if the agreement relates to land not under the Real Property Act
1900.
(4)
This section applies to any amendment or
revocation of a biodiversity certification agreement in the same way as it
applies to the agreement.
(5)
In this Part, a reference to a party to a biodiversity
certification agreement includes any owner of land against whom the agreement
is enforceable because of this section.
126ZKEnforcement of
agreements
(1)
The Minister, or a person acting with the written
consent of the Minister, may bring proceedings in the Land and Environment
Court for an order to remedy or restrain a contravention of a biodiversity
certification agreement.
(2)
If the Court is satisfied that a contravention of
the biodiversity certification agreement has been committed or will, unless
restrained by order of the Court, be committed, it may make such order as it
thinks fit to remedy or restrain the contravention.
(3)
In proceedings to remedy or restrain a
contravention of a biodiversity certification agreement, a consent to
institute the proceedings, purporting to have been signed by the Minister, is
evidence of that consent without proof of the signature of the
Minister.
126ZLMinister may order party to
rectify contravention of agreement
(1)
The Minister may, by order, require a party to a
biodiversity certification agreement to carry out specified work or other
actions on land owned by the person to rectify a contravention of the
agreement.
(2)
The order is to specify the date by which the
work or other actions must be carried out.
(3)
If the requirements of the order are not complied
with by that date, the Minister:
(a)
may enter the land and cause the work or actions
specified in the order to be carried out, and
(b)
may, by proceedings brought in any court of
competent jurisdiction, recover as a debt from the person to whom the order
was given the amount certified by the Minister as the reasonable cost of
complying with those requirements.
(4)
This section does not prevent the Minister from
seeking an award of damages against a party to a biodiversity certification
agreement for a contravention of the biodiversity certification
agreement.
126ZMCourt cannot extinguish
obligations
Section 89 of the Conveyancing Act
1919 does not authorise any court to modify or wholly or
partially extinguish any restriction or obligation created by a biodiversity
certification agreement except with the consent of the
Minister.
126ZNRegulations—biodiversity
certification agreements
The regulations may make provision for or with
respect to biodiversity certification agreements, including the
following:
(a)
the form of biodiversity certification
agreements,
(b)
the subject-matter of biodiversity certification
agreements,
(c)
the making, amendment and revocation of
biodiversity certification agreements, including the giving of public notice
and inspection by the public,
(d)
the public inspection of biodiversity
certification agreements after they have been made.
Division 9Suspension, revocation and
modification of certification
126ZOSuspension and revocation of
certification
(1)
The Minister may, by order published in the
Gazette, suspend or revoke any biodiversity
certification.
(2)
Biodiversity certification may be suspended or
revoked:
(a)
if the approved measures under the biodiversity
certification have not been complied with to the satisfaction of the Minister,
or
(b)
if the Minister is of the opinion that a party to
the biodiversity certification has failed to comply with an order made by the
Minister in respect of the party under this Part, or
(c)
if the Minister is of the opinion that any
agreement entered into in connection with the biodiversity certification has
been contravened, or
(d)
if the Minister is no longer of the opinion that
biodiversity certification improves or maintains biodiversity values,
or
(e)
in any other circumstances prescribed by the
regulations.
(3)
The regulations may make further provision for or
with respect to the suspension or revocation of biodiversity
certification.
126ZPModification of
certification
(1)
The Minister may, by order published in the
Gazette, modify any biodiversity certification by:
(a)
modifying the description of land that is
biodiversity certified (to extend or limit biodiversity certification),
or
(b)
modifying the approved measures under the
biodiversity certification.
(2)
Biodiversity certification may be
modified:
(a)
on application by a party to the biodiversity
certification or a party to a biodiversity certification agreement entered
into in connection with the biodiversity certification, or
(b)
on the Minister’s own
initiative.
(3)
Biodiversity certification may be modified only
if biodiversity certification, as modified, improves or maintains biodiversity
values.
Note—
See Division 4 for the circumstances in which
biodiversity certification improves or maintains biodiversity
values.
(4)
A biodiversity certification assessment in
relation to the proposed modification is to take account of any proposed
modifications to the description of the land that is biodiversity certified
and the approved measures under the biodiversity certification (whether the
modifications are proposed as a result of changes to the relevant biodiversity
certification strategy or otherwise).
(5)
A biodiversity certification assessment is not
required in respect of a proposed modification that substitutes equivalent
conservation measures for any of the approved measures under a biodiversity
certification.
Note—
Equivalent conservation measures are conservation
measures that achieve the same biodiversity standard as the approved measures
under a biodiversity certification.
(6)
The regulations may make further provision for or
with respect to the modification of biodiversity
certification.
126ZQApplication for modification
of biodiversity certification
(1)
An application for modification of biodiversity
certification must be made in a form approved by the
Minister.
(2)
The application must include the particulars of
the proposed modification to biodiversity certification (including particulars
of any changes to the biodiversity certification
strategy).
(3)
The regulations may require other things to be
submitted with the application.
126ZRGrounds for unilateral
modification of certification
Biodiversity certification may be modified on the
Minister’s own initiative:
(a)
if the approved measures under the biodiversity
certification have not been complied with to the satisfaction of the Minister,
or
(b)
if the Minister is of the opinion that a party to
the biodiversity certification has failed to comply with an order made by the
Minister in respect of the party under this Part, or
(c)
if the Minister is of the opinion that any
agreement entered into in connection with the biodiversity certification has
been contravened, or
(d)
if the Minister is of the opinion that
biodiversity certification no longer improves or maintains biodiversity
values, or
(e)
in any other circumstances prescribed by the
regulations.
126ZSAppeals
(1)
A party to a biodiversity certification, or a
party to a biodiversity certification agreement entered into in connection
with a biodiversity certification, who is dissatisfied with a decision of the
Minister to suspend, revoke or modify the biodiversity certification may
appeal to the Land and Environment Court against the
decision.
(2)
An appeal may be made no later than 3 months
after the order suspending, revoking or modifying biodiversity certification
is published in the Gazette.
(3)
This section does not confer a right of appeal on
a party to a biodiversity certification, or a party to a biodiversity
certification agreement, if the party is a government
authority.
126ZTDisputes between the Minister
and other government authorities
(1)
A dispute between a government authority which is
a party to a biodiversity certification, or a party to a biodiversity
certification agreement entered into in connection with a biodiversity
certification, and the Minister about any of the following matters may be
referred to the Premier for settlement:
(a)
a decision of the Minister to suspend or revoke
the biodiversity certification,
(b)
a decision of the Minister to modify the
biodiversity certification (otherwise than on the application of the
government authority).
(2)
The intra-government dispute resolution
arrangements apply in respect of the dispute.
Note—
See Division 10 for intra-government dispute
resolution arrangements.
Division 10General
126ZUNotification of certification
and changes to certification
(1)
Notice of the conferral, extension, suspension,
revocation or modification of biodiversity certification is to be given,
within 21 days:
(a)
on the website of the Department,
and
(b)
to the Director-General of the Department of
Planning, and
(c)
to each local council that is the council of an
area in which the biodiversity certified land is
located.
(2)
The Minister must make reasonable endeavours to
give notice of the conferral, extension, suspension, revocation or
modification of biodiversity certification, within 21 days:
(a)
to each party to the biodiversity certification,
and
(b)
to each party to a biodiversity certification
agreement entered into in connection with the biodiversity
certification.
(3)
The Minister is to keep a register containing
copies of any order made under this Part conferring, extending, suspending,
revoking or modifying biodiversity certification.
(4)
The register is to be open for public inspection,
without charge, during ordinary business hours, and copies of or extracts from
the register are to be made available to the public on request, on payment of
the fee fixed by the Minister.
(5)
The regulations may make further provision for or
with respect to the notification of the conferral, extension, suspension,
revocation or modification of biodiversity
certification.
126ZVSuspension, revocation or
expiry of biodiversity certification does not affect obligations under
certification
(1)
The suspension, revocation or expiry of
biodiversity certification does not, unless the Minister otherwise
directs:
(a)
affect the obligations of a party to the
biodiversity certification under this Part, or
(b)
affect any obligation a person has under a
biodiversity certification agreement entered into in connection with the
biodiversity certification.
(2)
The obligations of a party to the biodiversity
certification under this Part include:
(a)
the obligation to comply with the approved
measures under the biodiversity certification, and
(b)
the obligation to comply with any order made by
the Minister in respect of the party under this Part (whether the order is
made before or after the suspension, revocation or
expiry).
126ZWEffect of changes to
biodiversity certification on development and other
activities
(1)
The suspension, revocation, modification or
expiry of biodiversity certification does not affect any of the
following:
(a)
any approval of a project under Part 3A of the
Planning Act granted before the suspension, revocation, modification or
expiry,
(b)
any development consent under Part 4 of the
Planning Act granted before the suspension, revocation, modification or
expiry,
(c)
any approval of a Part 5 Planning Act activity
granted before the suspension, revocation, modification or
expiry,
(d)
any Part 5 Planning Act activity carried out by a
determining authority that the determining authority started to carry out
before the suspension, revocation, modification or
expiry.
(2)
The Minister may, in an order that suspends,
revokes or modifies biodiversity certification, specify the application of the
suspension, revocation or modification to anything pending under the Planning
Act at the time of the suspension, revocation or
modification.
(3)
The regulations may make provision for the
application of this Part to anything pending under the Planning Act at the
time of the expiry of any biodiversity certification.
(4)
In this section:
determining authority has the same
meaning as it has in Part 5 of the Planning Act.
Part 5
Planning Act activity means an activity to which Part 5 of
the Planning Act applies.
126ZXIntra-government dispute
resolution arrangements
(1)
For the purposes of this Part, the intra-government dispute resolution
arrangements are the arrangements provided for by this
section.
(2)
The Premier may, for the purpose of resolving a
dispute referred to the Premier under this Part:
(a)
appoint a person or panel to hold an inquiry and
make a report to the Premier, or
(b)
hold an inquiry into the
dispute.
(3)
After the completion of the inquiry, and after
considering any report, the Premier may make such order with respect to the
dispute, having regard to the public interest and to the circumstances of the
case, as the Premier thinks fit.
(4)
An order made by the Premier may direct the
payment of any costs or expenses of or incidental to the holding of the
inquiry.
(5)
A government authority (including the Minister)
is to comply with an order given under this section and is, despite the
provisions of any Act, taken to have power to comply with any such
order.
(6)
If a matter that is referred to the Premier under
this Part is also the subject of proceedings before the Land and Environment
Court:
(a)
the Premier may suspend or terminate action under
this section pending a decision of the Land and Environment Court,
and
(b)
a decision of the Land and Environment Court
prevails.
126ZYPowers of authorised
officers
Without limiting section 156B of the NPW Act, the
functions conferred on an authorised officer by that section may also be
exercised for the purpose of determining whether there has been compliance
with the approved measures under a biodiversity certification or with a
biodiversity certification agreement.
126ZZEffect of failure to comply
with procedural requirements
A conferral or extension of biodiversity
certification, or the modification of biodiversity certification, is not open
to challenge because of a failure to comply with the procedural requirements
of this Part after the order conferring, extending or modifying the
biodiversity certification has been published in the
Gazette.
126ZZAPart 5 of Planning Act does
not apply to biodiversity certification process
Biodiversity certification is not an approval for
the purposes of Part 5 of the Planning Act.
126ZZBExtent of biodiversity
certification
Biodiversity certification does not apply in
respect of, and does not affect any requirements applicable to, threatened
species, populations and ecological communities under Part 7A of the Fisheries Management Act
1994.
126ZZCRegulations
(1)
The regulations may make further provision for or
with respect to biodiversity certification.
(2)
In particular, the regulations may make provision
for or with respect to the charging (including the waiver or reduction) of
fees in connection with the operation of this Part.
[5]Section 127
Definitions
Omit the definitions of consent authority and owner from section 127
(1).
[6]Section 142B Director-General
may accredit persons to prepare assessments and surveys
Omit section 142B (1) (a). Insert instead:
(a)
biodiversity certification of land under Part
7AA, or
[7]Section 157 Review of
Act
Omit “, and any environmental planning
instruments granted biodiversity certification under Part 7,” from
section 157 (1).
[8]Schedule 7 Savings,
transitional and other provisions
Insert at the end of clause 1 (1):
Threatened
Species Conservation Amendment (Biodiversity Certification) Act
2010
[9]Schedule 7 Savings,
transitional and other provisions
Insert “(including development and
activities that may be carried out under another EPI that applies to the
subject land)” after “Growth Centres SEPP” in clause 18 (2)
(b).
[10]Schedule 7, clause
19
Omit the clause. Insert instead:
19Effect of biodiversity
certification
(1)
Development on the subject land is taken, for the
purposes of Part 4 of the Environmental Planning and Assessment
Act 1979, to be development that is not likely to
significantly affect any threatened species, population or ecological
community, or its habitat.
(2)
An activity to which Part 5 of the Environmental Planning and Assessment Act
1979 applies which is carried out or proposed to be
carried out on the subject land is taken, for the purposes of that Part, to be
an activity that is not likely to significantly affect any threatened species,
population or ecological community, or its habitat.
[11]Schedule 7, clause 20
(2)–(4)
Omit clause 20 (2). Insert instead:
(2)
Prior to the expiration of the biodiversity
certification conferred by this Part, the Minister may, by order published in
the Gazette, extend by a period of up to 10 years the period for which that
certification remains in force, but only if the Minister has reviewed the
Growth Centres SEPP to take account of any new listing of a species,
population or ecological community or the discovery of a species, population
or ecological community not previously known in an area.
(3)
The Minister must not extend the period of
biodiversity certification of the Growth Centres SEPP unless, prior to
granting the extension, the Minister:
(a)
by notice published in a newspaper circulating
generally throughout the State, invites persons to make written submissions to
the Minister on the proposed extension, and
(b)
considers any written submissions received before
the closing date specified in the notice for the making of submissions (being
a date that is not less than 30 days after the date the notice is first
published under this subclause).
(4)
This clause does not prevent biodiversity
certification of any of the subject land under Part 7AA of this Act with
effect on or after the biodiversity certification conferred by this Part
ceases to be in force.
[12]Schedule 7, clause
21
Omit clause 21 (1). Insert instead:
(1)
The Minister may, by order published in the
Gazette, suspend or revoke the biodiversity certification conferred by this
Part if the Minister is of the opinion that:
(a)
any relevant biodiversity measure has not been
complied with, or
(b)
the Growth Centres SEPP, and any other relevant
biodiversity measures, fail or will fail, as a result of any proposed
amendment of the Growth Centres SEPP, to make appropriate provision for the
conservation of threatened species, populations and ecological communities,
or
(c)
the consent authority under the Growth Centres
SEPP has failed to adequately comply with a direction by the Minister to
review the Growth Centres SEPP in response to any new listing of a species,
population or ecological community or the discovery of a species, population
or ecological community not previously known in an
area.
[13]Schedule 7, clause
21A
Insert after clause 21:
21ANotification of extension,
suspension or revocation
(1)
Notice of the extension, suspension or revocation
of the biodiversity certification conferred by this Part is to be given within
21 days:
(a)
on the website of the Department,
and
(b)
to the Director-General of the Department of
Planning, and
(c)
to each local council that is the council of an
area of which the subject land forms part.
(2)
The Minister is to keep a register containing
copies of the notice of any extension, suspension or revocation of the
biodiversity certification conferred by this Part.
(3)
The register is to be open for public inspection,
without charge, during ordinary business hours, and copies of or extracts from
the register are to be made available to the public on request, on payment of
the fee fixed by the Minister.
[14]Schedule 7, Part
8
Insert after Part 7:
Part 8Provisions consequent on
changed arrangements for biodiversity certification
23Definitions
(1)
In this Part:
biodiversity certified EPI
means:
(a)
an EPI on which biodiversity certification was
conferred by the Minister under the former biodiversity certification
arrangements before the repeal of those arrangements, or
(b)
an EPI on which biodiversity certification is
conferred by the Minister under the former biodiversity certification
arrangements, after the repeal of those arrangements, in accordance with this
Part.
established EPI means an EPI that is
in force at the time a proposal is made for its biodiversity
certification.
former
biodiversity certification arrangements means the provisions
of Division 5 of Part 7 of this Act, as in force immediately before their
repeal by the Threatened Species Conservation
Amendment (Biodiversity Certification) Act
2010.
new
biodiversity certification arrangements means the provisions
of Part 7AA of this Act, as inserted by the Threatened
Species Conservation Amendment (Biodiversity Certification) Act
2010.
relevant
measures means any relevant measures, as referred to in
section 126G of the former biodiversity certification arrangements, on the
basis of which biodiversity certification is conferred on an
EPI.
(2)
In this Part, a reference to biodiversity
certification conferred under the former biodiversity certification
arrangements includes a reference to biodiversity certification conferred
after the repeal of those arrangements in accordance with this
Part.
24Continuation of existing
biodiversity certification
Any biodiversity certification conferred on an
EPI (including an established EPI) by the Minister under the former
biodiversity certification arrangements, before the repeal of those
arrangements, continues to have effect, subject to this
Part.
25Continuation of power to
confer biodiversity certification on an EPI in limited
cases
(1)
Sections 126G, 126H and 126N, as in force under
the former biodiversity certifications arrangements, continue to apply in
respect of an existing biodiversity certification
proposal.
(2)
Accordingly, the Minister may confer biodiversity
certification on an EPI (including an established EPI) which is the subject of
an existing biodiversity certification proposal under the former biodiversity
certification arrangements as if those arrangements had not been
repealed.
(3)
The order conferring biodiversity certification
is to specify the relevant measures to be taken and any conditions of the
certification.
(4)
An existing
biodiversity certification proposal is a proposal to confer
biodiversity certification on an EPI of which notice was given, or which was
subject to public exhibition, under section 126G before the repeal of the
former biodiversity certification arrangements.
(5)
This clause does not prevent the Minister from
conferring biodiversity certification on land to which an existing
biodiversity certification proposal relates under the new biodiversity
certification arrangements.
26Effect of biodiversity
certification
(1)
Any development for which development consent is
required under the provisions of a biodiversity certified EPI is, for the
purposes of Part 4 of the Environmental Planning and Assessment
Act 1979, taken to be development that is not likely to
significantly affect any threatened species, population or ecological
community, or its habitat.
(2)
An activity to which Part 5 of the Environmental Planning and Assessment Act
1979 applies that a biodiversity certified EPI provides
can be carried out without the need for development consent is, for the
purposes of that Part, taken to be an activity that is not likely to
significantly affect any threatened species, population or ecological
community, or its habitat.
(3)
This clause applies subject to the conditions of
the biodiversity certification.
27Period of certification and
extension
(1)
Biodiversity certification of an EPI remains in
force for such period as the Minister determines and specifies in the
certification. If no period is specified, biodiversity certification remains
in force for 10 years.
(2)
Prior to the expiration of biodiversity
certification of an EPI, the Minister may, by order published in the Gazette,
extend by a period of up to 10 years the period for which that certification
remains in force, but only if the Minister has reviewed the EPI to take
account of any new listing of a species, population or ecological community or
the discovery of a species, population or ecological community not previously
known in an area.
(3)
The Minister must not extend the period of
biodiversity certification of an EPI unless, prior to granting the extension,
the Minister:
(a)
by notice published in a newspaper circulating
generally throughout the State, invites persons to make written submissions to
the Minister on the proposed extension, and
(b)
considers any written submissions received before
the closing date specified in the notice for the making of submissions (being
a date that is not less than 30 days after the date the notice is first
published under this subclause).
(4)
This clause does not prevent further biodiversity
certification of the land to which an EPI applies under the new biodiversity
certification arrangements with effect on or after the biodiversity
certification conferred under the former biodiversity certification
arrangements ceases to be in force.
28Failure to comply with
certification
Failure to take any relevant measures or to
comply with a condition of biodiversity certification of an EPI does not
affect the validity of the certification, but is a ground for suspension or
revocation of the biodiversity certification.
29Suspension and revocation of
certification
(1)
The Minister may, by order published in the
Gazette, suspend or revoke the biodiversity certification of an EPI if the
Minister is of the opinion that:
(a)
any relevant measures have not been taken or
conditions of the biodiversity certification have not been complied with,
or
(b)
the EPI, and any other relevant measures, fail or
will fail, as a result of any proposed amendment of the EPI, to make
appropriate provision for the conservation of threatened species, populations
and ecological communities, or
(c)
the consent authority under the EPI has failed to
adequately comply with a direction by the Minister to review the EPI in
response to any new listing of a species, population or ecological community
or the discovery of a species, population or ecological community not
previously known in an area.
(2)
The suspension or revocation of biodiversity
certification does not affect:
(a)
any development consent granted under Part 4 of
the Environmental Planning and Assessment Act
1979 before the suspension or revocation,
or
(b)
any activity for which approval was granted, or
which a determining authority started to carry out, in accordance with Part 5
of that Act before the suspension or revocation.
(3)
If the Minister suspends or revokes biodiversity
certification under this clause, the Minister may, in the order, specify the
application of the suspension or revocation to anything pending under the
Environmental Planning and Assessment Act
1979 at the time of the suspension or
revocation.
30Notification of certification,
extension, suspension or revocation
(1)
Notice of the conferral of biodiversity
certification under the former biodiversity certification arrangements or of
the extension, suspension or revocation of that certification is to be given
within 21 days:
(a)
on the website of the Department,
and
(b)
to the Director-General of the Department of
Planning, and
(c)
to each local council that is the council of an
area of which land to which the EPI applies forms
part.
(2)
The Minister is to keep a register containing
copies of any order conferring biodiversity certification under the former
biodiversity certification arrangements or extending, suspending or revoking
certification.
(3)
The register is to be open for public inspection,
without charge, during ordinary business hours, and copies of or extracts from
the register are to be made available to the public on request, on payment of
the fee fixed by the Minister.
31Review of biodiversity
certification
The Minister is to undertake periodic reviews of
any biodiversity certification conferred by the Minister under the former
biodiversity certification arrangements.
32Continuation of accreditation
arrangements
Any arrangements made under section 142B before
the repeal of the former biodiversity certification arrangements, in relation
to the biodiversity certification of EPIs, continue to have effect to the
extent necessary to give effect to this Part.
Schedule 2Amendment of other
legislation
2.1Environmental Planning and Assessment Act 1979 No
203
[1]Section 79B Consultation and
concurrence
Omit the note at the end of section 79B (3).
Insert instead:
Note—
The development is taken not to significantly
affect threatened species, populations or ecological communities, or their
habitats if:
(a)
the development is to be carried out on
biodiversity certified land (within the meaning of Part 7AA of the Threatened Species Conservation Act
1995), or
(b)
a biobanking statement has been issued in respect
of the development under Part 7A of the Threatened
Species Conservation Act 1995.
[2]Section 79B (8A) and
(8B)
Insert after section 79B (8):
(8A)Threatened species
requirements
The Director-General of the Department of
Environment, Climate Change and Water may grant concurrence under this section
conditional on the taking of specified action (voluntary
action, as provided by subsection (8B)) that the
Director-General considers will significantly benefit threatened species
conservation, but only if the Director-General is satisfied that the person
who proposes to carry out the development to which the concurrence relates has
agreed to take the voluntary action and agrees to the imposition of the
condition.
(8B)
The voluntary action that can be required by a
condition imposed under this section is any one or more of the
following:
(a)
the reservation of land under Part 4 of the
National Parks and Wildlife Act 1974 or
the entering into of a conservation agreement relating to the land under that
Act,
(b)
action to secure the protection of land for
conservation purposes by a method that the Director-General considers
satisfactory,
(c)
action to restore threatened species habitat on
land referred to in paragraph (a) or (b),
(d)
the contribution of money for a purpose referred
to in paragraphs (a)–(c).
[3]Section 79C
Evaluation
Omit the second note at the end of section 79C
(1). Insert instead:
Note—
The consent authority is not required to take
into consideration the likely impact of the development on biodiversity values
if:
(a)
the development is to be carried out on
biodiversity certified land (within the meaning of Part 7AA of the Threatened Species Conservation Act
1995), or
(b)
a biobanking statement has been issued in respect
of the development under Part 7A of the Threatened
Species Conservation Act 1995.
[4]Section 111 Duty to consider
environmental impact
Omit the note at the end of the section. Insert
instead:
Note—
The determining authority is not required to
consider the effect of an activity on biodiversity values if:
(a)
the activity is to be carried out on biodiversity
certified land (within the meaning of Part 7AA of the Threatened Species Conservation Act
1995), or
(b)
a biobanking statement has been issued in respect
of the activity under Part 7A of the Threatened
Species Conservation Act 1995.
[5]Section 112 Decision of
determining authority in relation to certain activities
Omit the note at the end of section 112 (1C).
Insert instead:
Note—
An activity is taken not to significantly affect
threatened species, populations or ecological communities, or their habitats
if:
(a)
the activity is to be carried out on biodiversity
certified land (within the meaning of Part 7AA of the Threatened Species Conservation Act
1995), or
(b)
a biobanking statement has been issued in respect
of the activity under Part 7A of the Threatened
Species Conservation Act 1995.
[6]Section 112C Concurrence of or
consultation with Director-General of the Department of Environment, Climate
Change and Water if Minister is not determining
authority
Insert “(8A), (8B),” after
“Section 79B (8),” in section 112C (3).
2.2Environmental Planning and Assessment Regulation
2000
[1]Schedule 1
Forms
Omit clause 1 (e). Insert instead:
(e)
an indication as to whether the development is
likely to significantly affect threatened species, populations or ecological
communities, or their habitats, unless the development is taken to be
development that is not likely to have such an effect because it is
biodiversity compliant development,
(ea)
for biodiversity compliant development, an
indication of the reason why the development is biodiversity compliant
development,
[2]Schedule 1, clause 1
(2)
Insert at the end of clause 1:
(2)
In this Schedule, biodiversity compliant development
means:
(a)
development proposed to be carried out on
biodiversity certified land within the meaning of Part 7AA of the Threatened Species Conservation Act
1995, or
(b)
development in respect of which a biobanking
statement has been issued in respect of the development under Part 7A of the
Threatened Species Conservation Act
1995, or
(c)
development to which the biodiversity
certification conferred by Part 7 of Schedule 7 to the Threatened Species Conservation Act
1995 applies, or
(d)
development for which development consent is
required under a biodiversity certified EPI (within the meaning of Part 8 of
Schedule 7 to the Threatened Species Conservation Act
1995).
[3]Schedule 1, clause 2
(5A)
Omit the subclause. Insert instead:
(5A)
The species impact statement referred to in
subclause (1) (f) is not required in relation to the effect of the development
on any threatened species, populations or ecological communities, or their
habitats, if the development is taken to be development that is not likely to
significantly affect those threatened species, populations or ecological
communities, or their habitats, because it is biodiversity compliant
development.
[4]Schedule 4 Planning
certificates
Insert after clause 9:
9ABiodiversity certified
land
If the land is biodiversity certified land
(within the meaning of Part 7AA of the Threatened
Species Conservation Act 1995), a statement to that
effect.
2.3Land
and Environment Court Act 1979 No
204
Section 17 Class
1—environmental planning and protection appeals
Insert “126ZF, 126ZS or” after
“section” in section 17 (eb).
2.4National Parks and Wildlife Act 1974 No
80
[1]Section 138 Payments into
Fund
Insert after section 138 (4):
(5)
Money received in connection with the
administration of the biodiversity certification scheme (including any fees
paid under the scheme or any monetary contributions made for the purposes of
the scheme) is not to be paid into the National Parks and Wildlife
Fund.
(6)
In this section:
biodiversity certification scheme
means:
(a)
the provisions of Part 7AA of the Threatened Species Conservation Act
1995 and any regulations made for the purposes of that
Part, and
(b)
the provisions of Parts 7 and 8 of Schedule 7 to
that Act (which relate to biodiversity certification of environmental planning
instruments).
[2]Section 139 Payments out of
Fund
Omit “except those incurred under Part 7A
of the Threatened Species Conservation Act
1995” from section 139 (2) (a).
Insert instead “except those incurred under
the biodiversity certification scheme and the biobanking
scheme”.
[3]Section 139
(6)
Insert after section 139 (5):
(6)
In this section:
biobanking scheme means the
provisions of Part 7A of the Threatened
Species Conservation Act 1995 and any regulations made for
the purposes of that Part.
biodiversity certification scheme
means:
(a)
the provisions of Part 7AA of the Threatened Species Conservation Act
1995 and any regulations made for the purposes of that
Part, and
(b)
the provisions of Parts 7 and 8 of Schedule 7 to
that Act (which relate to biodiversity certification of environmental planning
instruments).
2.5Native
Vegetation Act 2003 No 103
Section 5 Land excluded from
operation of Act
Insert after section 5 (1) (c):
(d)
biodiversity certified land (within the meaning
of Part 7AA of the Threatened Species Conservation Act
1995).
Historical
notes
Table of amending
instruments
Threatened
Species Conservation Amendment (Biodiversity Certification) Act
2010 No 39. Assented to 15.6.2010. Date of commencement,
2.7.2010, sec 2 and 2010 (345) LW 2.7.2010.