The Nature Conservation Council with the help of the Environmental Defenders Office won the case challenging the process of implementation of the land clearing codes.
The court decision was an opportunity for Premier Berejiklian to amend the bad laws her government had implemented and make some key improvements to protect habitat.
Instead, she has chosen to stick rigidly with the same destructive laws and ignore the science that highlighted the likely destruction. By the government’s own assessment, they will lead to a spike in clearing of up to 45% and expose threaten wildlife habitat to destruction, including 99% of identified koala habitat on private land.
Over the past 200 years NSW has lost almost half of its bushland through land clearing and only 9% of what is left is in good condition. Clearing of native vegetation and habitat modification are the greatest threats to the survival of the majority of species on the threatened list.
The biodiversity laws that the government passed in late-2016 place a great deal of emphasis on offsetting as a means of allowing development to occur. The theory is that biodiversity lost when clearing for a development can be replaced by providing for restoration or protection of biodiversity in another place.
The Nature Conservation Council recently published a report on the operation of NSW’s biodiversity offset schemes, called Paradise Lost: The Weakening and Widening of NSW Biodiversity Offsetting Schemes, 2005–16. This article outlines the key findings of the report.
As you can tell from the title, the principles of offsetting have been severely compromised. We can expect worse to come under the new laws.
Concept of Biodiversity Offsetting
Biodiversity offsetting has been in use in NSW since 2005 under various pieces of legislation.
One example is the money that was paid by NSW Transport Infrastructure Development Corporation to compensate for the loss of 0.33 ha of Blue Gum High Forest when the railway station at Hornsby was expanded. The money was used to help purchase land to expand the area of protection of Blue Gum High Forest next to Dalrymple-Hay Nature Reserve.
We have written before about the theoretical difficulties of using offset schemes to compensate for lost vegetation and habitat loss and the measures that should be taken to counteract these difficulties.
The basic principles that should be observed are given below.
Offsets should only be used after appropriate avoidance and minimisation measures have been taken according to the mitigation hierarchy. A biodiversity offset is a commitment to compensate for significant residual adverse impacts.
No net loss
A biodiversity offset should be designed and implemented to achieve measurable conservation outcomes that can reasonably be expected to result in no net loss and preferably a net gain of biodiversity.
Some areas should be off limits – red flags
There are situations where residual impacts cannot be fully compensated for by a biodiversity offset because of the irreplaceability or vulnerability of the biodiversity affected.
Consider whether restoration is possible
Biodiversity offsetting assumes ecosystems and habitats can be re-created. This is often not the case, particularly if offset sites have been highly degraded and lost essential characteristics. In Australia, a number of studies have shown revegetated areas rarely resemble the ecosystem it was intended they would replicate.
It takes some time for species to establish a viable population in a new habitat. Offsetting should allow for a phased-in approach to prevent the total loss of species that are already threatened. The loss of hollow-bearing trees is a particular example.
In areas affected by the project and by the biodiversity offset, the effective participation of stakeholders should be ensured in decision-making about biodiversity offsets. All stages including their evaluation, selection, design, implementation, monitoring and communication of results to the public should be undertaken in a transparent and timely manner.
The design and implementation of a biodiversity offset should be based on an adaptive management approach, incorporating monitoring and evaluation, with the objective of securing outcomes that last in perpetuity.
There are five types of offsets schemes operating in NSW. The performance of each of these schemes was examined through the lens of eight case studies:
- Namoi catchment property vegetation management plans – approval for land clearing under the Native Vegetation Act
- Kellyville in northwest Sydney – creation of credits under the BioBanking scheme
- Wagga Wagga local environment plan – biodiversity certification for strategic planning
- Albury local environment plan – biodiversity certification for strategic planning
- Huntlee development in Hunter Valley – Office of Environment and Heritage principles for biodiversity offsetting
- Boggabri and Maules Creek coal mines – development consent – Office of Environment and Heritage principles for biodiversity offsetting
- Warkworth mine extension – Office of Environment and Heritage principles for biodiversity offsetting
- Mt Owen mine expansion – NSW biodiversity offsets policy for major projects
The report provides a detailed description of the features of each case study and compares them with the expected standards. The criteria for the analysis were:
- be a last resort after avoidance and mitigation (including appropriate ‘red flags’)
- deliver biodiversity equivalence (like-for-like)
- provide security and achieve benefits in perpetuity
- deliver a net gain in biodiversity
- be additional to conservation measures already in place
- be enforceable, resourced and well-managed
- be subject to a rigorous monitoring and evaluation framework
- be open and transparent
It was demonstrated that biodiversity offsetting is failing to deliver the environmental outcomes promised. No case studies resulted in outcomes deemed ‘good’ and the outcomes were:
- ‘disastrous’ in one study (Boggabri/Maules Creek)
- ‘poor’ in five studies (Warkworth, Mount Owen, Huntlee, Albury, Kellyville)
- ‘adequate’ in two studies (Namoi, Wagga Wagga)
For more details read the report.
Comparison of Offset Schemes
The report considers that a scheme should have the following features:
- excludes discounting of offset credits
- excludes supplementary measures
- excludes mine rehabilitation
- clear standard for environmental outcomes
- does not allow payment in lieu of offsets
- red flags
- impacts on water quality and soil are taken into account
- like-for-like offsetting
The case studies demonstrate the features of the five biodiversity offset schemes in operation. It was found that the later models contained fewer best-practice principles and standards than the earlier ones:
- only the first offsets scheme (the Environmental Outcomes Assessment Methodology under the Native Vegetation Act) contained all eight features
- the Biodiversity Offsets Policy for Major Projects introduced by the Baird government in 2014 contained only one of the eight features
Overall, biodiversity offsetting schemes have failed to deliver the promised outcomes and they have become weaker as standards have slipped.
Draft Biodiversity Offset Scheme is Even Worse
The latest Draft Biodiversity Offset Scheme (BOS) and the Biodiversity Assessment Methodology (BAM) that will be used to determine offsetting does not include any of the features described above.
The BAM is a metric-based tool that allows biodiversity impacts and improvements to be assessed and quantified in terms of ecosystem credits and species credits, collectively known as biodiversity credits that will need to be offset.
The proponent can choose to between three methods of meeting their offset obligation:
- buying credits for a suitable site under the offset rules from the market, or they can establish a Biodiversity Stewardship Agreement on their own land and retire the credits generated
- make a payment to the Biodiversity Conservation Trust that will source the offsets
- paying for conservation actions as approved by the consent authority
Key points for submissions
The key points on the features that should be in the offsetting legislation and the changes that are needed are listed below.
1. Discounting of biodiversity credits should not be permitted
The government proposes introducing ‘discounting’ that will allow offset credit requirements to be ‘discounted’ based on claimed social and economic benefits. Economic prioritisation policies are likely to contribute to the incremental and permanent loss of significant biodiversity in NSW, and undermine the credibility of the policy.
2. Supplementary measures should not be included
The BOS allows the use of ‘biodiversity conservation actions’ that may include research or surveys into the biodiversity under threat. This is not a genuine offset. The Scientific Committee stated in a report on this idea that this:
… is clearly a case of developers being able to buy themselves out of any obligation to protect biodiversity in any meaningful way.
NSW Scientific Committee (2014) Submission on the Draft NSW Biodiversity Offsets Policy for Major Projects
3. Allowance of mine rehabilitation
Numerous critics have questioned whether degraded mine sites can be effectively restored and in any case mine site rehabilitation should be an obligation of the mining company. Recently, developers have been permitted to use mine rehabilitation sites to generate biodiversity offset credits. The government proposes continuing this practice under the draft BOS.
4. Clear standards
The Biodiversity Conservation Act requires that the biodiversity assessment method should adopt a standard that result in no net loss but the draft BAM does not have a clear objective to protect biodiversity.
5. No payment in lieu
The draft BOS would allow proponents to discharge offset requirements simply by paying money into Biodiversity Conservation Trust. The development could proceed without certainty that the required offset is possible.
6. Red flags
The BOS does include some restrictions on proposals that cause ‘serious and irreversible impacts’ (SAII) but the criteria for defining SAII are too weak. It includes only the most endangered and restricted area species and ecological communities. In the case of major projects the SAII risks can be ignored. The net effect will be that EECs and endangered species not listed in the list of SAIIs, e.g. STIF and Duffys Forest, could be cleared without offset requirements if the land area is below the clearing thresholds. A council’s discretionary DCP would be the only protection.
7. Other impacts on water and soil
Other impacts should be considered in the BAM. The assessment methodology covers only a limited range of biodiversity values such as vegetation integrity and habitat suitability but not soil health and water quality and availability.
8. Like-for-like principle
The like-for-like principle that offsets should replace the values being lost is undermined in several aspects. For example:
- Offsets can be found from a radius of 100 km. It will be easier and cheaper to find offsets outside urban areas undermining preservation of biodiversity and threatened species and EECs such as STIF. The loss of existing geographic distribution if sites in urban areas are lost will undermine species resilience and long term adaptation to climate change.
- Offsets can be used for species across similar vegetation classes or between species. This even applies to threatened species; a koala can be swapped for a wallaby.
The government is proceeding with this model despite warnings expressed by leading scientists, lawyers and conservationists. The government basically has ignored the advice of the experts because it is wants to deliver development at any cost. Implementing the BOS will in fact add extinction pressures to the very species and ecological communities it is supposed to protect by facilitating the more rapid and widespread destruction of threatened species habitat across NSW.
Please Send a Submission
Closing date: Wednesday 21 June. Lodge online or post to Land Management and Biodiversity Conservation Reforms, Office of Environment and Heritage, PO Box A290, Sydney South, NSW 1232.
In May the NSW government released regulations and codes that provide some of the detail on how the biodiversity legislation will operate in practice. But it is not complete so there is still a lot of uncertainty. The call for submissions is an opportunity to express a view on what should be in the areas that are missing as well as the available drafts.
There is a large volume of information to digest. The most useful one is the Submission Guide: Ecological Sustainable Development.
Consistent with STEP’s interests we focus on the aspects that relate to the management and preservation of urban bushland. Refer to our article on the issues regarding the Biodiversity Offsets Scheme.
The major areas that are missing are the Vegetation State Environment Planning Policy (Vegetation SEPP) and some of the maps that will underpin the decision-making process. This is most unsatisfactory! The legislation is due to come into force on 25 August. It is an abuse of due process to be conducting consultation on incomplete information.
The Vegetation SEPP will regulate clearing of vegetation in urban areas and environmental conservation/management zones where clearing does not otherwise require development consent under the main planning act, the Environmental Planning and Assessment Act. So the zones that are covered include E2, E3 and E4 zones.
The major concern is the inclusion of E2 zones in the clearing provisions. This zone is for areas with high ecological, scientific, cultural or aesthetic values outside national parks and nature reserves. The zone provides the highest level of protection, management and restoration for such lands whilst allowing uses compatible with those values.
E3 (environmental management) and E4 (environmental living) zones accommodate low-impact residential development but contain, or are near, bushland so have particular environmental or risk factors.
So why is the Vegetation SEPP regulating clearing on E-zone land, in particular E2 land? Clearing should not be allowed except for bushfire safety and other protection reasons.
Examples of land that could come under the new regulations are near the Blue Gum High Forest area in Dalrymple Hay Reserve and the area between Berowra Heights and Cowan near the Great North Walk. Most people assume the latter is national park but much of the natural scenery enjoyed by walkers is zoned E2, E3 and even RE1 (public recreation) and would have little protection under the proposed SEPP. Some E2 land is protected by being a BioBanking site or part of a conservation agreement, but not all.
Sensitive Biodiversity Values Land
There are certain areas, regardless of land area, that will require a biodiversity assessment (and offsetting if clearing is approved) if they are mapped in a Sensitive Biodiversity Values Lands map. The definition of areas included is very restricted.
Comment for submissions
The final map is not available and we understand many parts of NSW have not been properly assessed yet.
The resolution of the draft map on the website is too low to identify particular sites.
Areas that don’t meet the definition and should be included are endangered ecological communities (e.g. Sydney Turpentine Ironbark Forest and Duffys Forest EECs), buffer zones around EECs and areas of critical habitat, e.g. Ku-ring-gai Flying Fox Reserve.
Will it be possible to nominate areas for inclusion? Local land managers should be able to have a say on what is Sensitive Biodiversity Values Land.
There is a real danger that clearing of EECs such as STIF could rapidly turn it into critically endangered. A council’s discretionary DCP would be the only protection. It takes some time for a change in classification of vegetation communities to be finalised. In the meantime will they be cleared beyond hope of recovery?
The clearing provisions are determined by categories of development.
Development consent required
Development consent is required (under the Environmental Planning and Assessment Act) for larger developments and infrastructure.
The Biodiversity Assessment Method (BAM) applies to clearing and the flawed offset provisions will apply.
Development consent NOT required
When development consent is NOT required, e.g. clearing of undeveloped land, the Biodiversity Offset Scheme (BOS) thresholds apply as prescribed below:
Minimum lot size
Proposed area of clearing
Less than 1 ha (10,000 m2)
2,500 m2 or more
Less than 2 ha
5,000 m2 or more
2 to 39 ha
5,000 m2 or more
The thresholds are high.
For clearing above the threshold the BOS applies and approval will be determined by the Native Vegetation Panel. A biodiversity offset obligation will be imposed. Local councils could be given authority to do this assessment. We don’t know who will be appointed to the Native Vegetation Panel.
Clearing below the threshold will be regulated under the local council’s Development Control Plan (DCP) through a permit system. This will be the most likely situation in urban areas,
There is currently wide variation in the standards of DCPs, for example in relation to individual trees. Ku-ring-gai requires a permit for clearing of most native trees and vegetation and non-native trees while Hornsby only controls clearing of locally endemic native trees or trees in heritage zones. It is possible that the government will impose standard clauses in DCPs. Indeed would these be desirable if a high standard is applied?
Comment for submissions
It is essential that the objectives of clause 5.9 of the standard LEP are carried over to DCPs under the new scheme that is ‘to preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation’.
Submissions should explain desirable standards for the DCP regulations. One area that has not been covered is how the DCP clearing codes will fit in with the need for wildlife corridors and the Greater Sydney Commission’s guidelines for the Green Grid and minimum tree canopy cover.
Other Impacts of Clearing Regulations
A major issue with the local regulation of clearing is that there will be no monitoring of loss of vegetation communities and assessment of cumulative impacts. There needs to be a database of regional clearing approvals.
There is uncertainty about the legal status of DCP regulations and the ability to prosecute if breaches occur.
Areas of western Sydney that will be subject to the greatest amount of new development need as much protection as possible of native vegetation and habitat. The Cumberland Plain Woodland has already had large areas cleared. The allowable clearing and the use of offsets under the proposed regulations will further reduce the area of remaining native vegetation and habitat.
Given the limited areas of bushland in urban areas, it is inevitable that there will be more losses of irreplaceable biodiversity. The offsets provisions do not adequately factor in the scarcity of suitable offsets in urban areas (see article below). The rules must be amended to ensure maximum protection of native vegetation in urban and E zones, particularly areas containing threatened species.
Please Send a Submission
Closing date: Wednesday 21 June. Lodge online or post to Land Management and Biodiversity Conservation Reforms, Office of Environment and Heritage, PO Box A290, Sydney South, NSW 1232.
The NSW government has been undertaking a major review of the biodiversity legislation in response to farmers’ complaints about the fairness and processes of the current land clearing laws. This has involved the appointment of an independent review panel whose report was released in December 2014. The report covered a lot more than rural land clearing laws and proposed a major revamp of the biodiversity protection provisions.
STEP Matters Issue 183 explained some of the concerns about the recommendations of the report, particularly the:
- use of self-assessment
- watering down of biodiversity offset standards
- reliance on private land conservation
- adequacy of provisions and resources to assess and monitor vegetation clearing
The recommendations, if adopted, would seriously undermine protections that currently limit development that is likely to lead to loss of biodiversity in rural and urban areas.
Prior to the 2015 election the NSW government promised to implement all recommendations of the report. Conservation groups have been calling on the general public to express their concerns to their local MPs in the hope that the actual legislation would recognise the issues raised but to no avail. The usual response was a standard email full of statements about the glorious improvement in biodiversity that was going to occur and made no acknowledgement of the concerns.
The Office of Environment and Heritage (OEH) set out to consult with key stakeholder groups such as the NPA and NCC on the drafting of the legislation. The process was such a sham that the groups withdrew from the process in February 2016. The groups issued this joint statement about the withdrawal:
We have provided detailed analysis and constructive feedback to help develop a conservation law that addresses the increasing threats to wildlife, soils and climate, but it is now clear that the government is on a course to pursue development at high environmental cost.
Direct talks with the relevant ministers also seem to have fallen on deaf ears.
On 6 May the draft legislation was released. The closing date for submissions was 28 June.
Application to Urban Areas and Tree Preservation Orders are still Unclear
Some aspects of the application of the legislation to urban areas are not yet clear. A new State Environmental Planning Policy and Development Control Plan for urban areas are yet to be released for consultation that will define the clearing controls and consent requirements. In fact it is not clear what consultation will occur.
Of particular concern is the proposal to replace individual council Tree Preservation Orders (TPOs) with a SEPP to apply to all urban areas. TPOs are an effective tool for protecting urban trees and their associated biodiversity, amenity, heritage, shade and heat reduction values. TPOs need to take into account differences in the characteristics of urban areas such as topography, existing canopy cover and proximity to bushland.
No clear justification for the proposed replacement of TPOs with a SEPP and the purported benefits of this approach has been provided. The Final Report from the Independent Biodiversity Legislation Review Panel does not address TPOs at all.
Response to Draft Legislation
A major campaign (Stand Up for Nature) was launched by a coalition of conservation groups to inform the public urging us to contact politicians to express opposition and ask for the legislation to be withdrawn. The campaign has been very successful. Over 5,400 submissions have been made opposing the legislation.
On top of this response, just last week a group of over 400 scientists released a declaration expressing concern about the current and likely future rate of deforestation and loss of habitat and its impact on threatened species.
The government wants to pass the legislation in October. They appear to be determined to ignore expert opinion. Future generations will face the consequences. Pressure needs to be maintained on the premier to modify the draft legislation.
Government Statements are Pure Spin
Here are three examples of the disconnect between the government’s statements on the OEH website about the reforms and the likely outcomes according to assessments by the Environmental Defenders Office (EDO), conservation groups and STEP.
1. OEH statement on ecologically sustainable development (ESD)
The biodiversity reforms will facilitate ESD in NSW. The introduction of a new biodiversity offsets scheme, including the new Biodiversity Conservation Trust and an expanded biodiversity certification program will, for the first time, deliver a transparent, consistent and certain approach to biodiversity assessment and offsetting in NSW.
ESD is a basic objective of the current planning legislation. Its application in the past has led to genuine offsetting decisions such as the provision of funding for preservation of Blue Gum High Forest land in Browns Forest, St Ives to offset BGHF cleared for railway expansion in Hornsby.
Under this heading the OEH identifies the flawed biodiversity offset system as the means of facilitating ESD. The idea seems to be that merely making statements about ESD will make it happen. How can biodiversity be maintained or improved when a developer will be able to pay money into a fund if suitable vegetation for offsetting is not available.
The proposed reforms ignore the principles of ESD; they do not take a precautionary approach; they do not treat biodiversity conservation as a fundamental consideration in decision-making; and they are very unlikely to achieve intergenerational equity.
2. OEH statement that reforms will enhance biodiversity conservation on private land
The proposed regime places almost complete reliance on political, budgetary decisions (which may be short-term) to achieve biodiversity gains, rather than on protections to prevent continued biodiversity decline.
Who knows whether private landowners will be given sufficient long-term support to carry out conservation on their land?
Programs like the Saving our Species will fund measures to restore habitat for identified threatened species. But at the same time land clearing will be allowed that will destroy habitat for a lot more species. It is much more expensive to restore habitat than to preserve it in the first place.
3. OEH statement that the reforms will set and achieve clear biodiversity objectives
- The objects of the draft Bill emphasise conserving biodiversity and ecological integrity at bioregional and state scales and facilitating ecologically sustainable development.
- The draft Bill objects for improving and sharing knowledge about biodiversity, ecosystem services and conservation actions will be achieved through an environmental monitoring, assessment and reporting program to be established by OEH.
The reform package will deliver balanced legislation and positive outcomes for all stakeholders. Landholders will no longer be the sole party responsible for conservation outcomes and will be able to undertake legitimate land clearing and management activities unhindered. The environment will benefit from significant new investment focused on priority threatened species and priority conservation areas.
As the EDO points out:
There are no clear environmental baselines, aims or targets. There is no ban on broad-scale clearing, no mandatory soil, water and salinity assessment, and no ‘maintain-or-improve’ standard to ensure environmental outcomes – either at the site scale or at the landscape scale. Provisions are less stringent, less evidence-based, less accountable, and are likely to result in significant clearing increases in NSW.
The government has made no attempt to quantify the extra amount of land clearing that is likely to occur.
In STEP Matters, Issue 183, p4 (Concern about Changes to Biodiversity Laws) we explained the reasons for concerns about the NSW Government’s plans to rewrite the biodiversity laws. The new legislation is due to be released in March 2016 and the indications are that protections will be significantly weakened.
The NSW Government is currently considering legislation to implement the recommendations of the Independent Biodiversity Legislation Review Panel contained in their report released in December 2014.