Biodiversity Development Assessment Report waivers
The Biodiversity Offsets Scheme applies to all state significant development and state significant infrastructure applications unless the Planning Agency Head and the Environment Agency Head (or their delegates) determine they are not likely to have any significant impact on biodiversity values.
If a proponent believes that their state significant project is unlikely to have a significant impact on biodiversity values, they can apply for a Biodiversity Development Assessment Report waiver. Biodiversity Development Assessment Report waivers do not apply to other types of development.
Biodiversity Development Assessment Report waivers are not relevant to applications to modify a development consent or approval. Section 7.17 of the Biodiversity Conservation Act 2016 (NSW) requires a Biodiversity Development Assessment Report to be submitted with the application for a modification, unless the authority determining the application for modification (or determining the environmental assessment requirements for the application) is satisfied that the modification will not increase the impact on biodiversity values.
When a waiver can be issued
A waiver can be issued when the Planning Agency Head and the Environment Agency Head (or their delegates) determine a development is not likely to have any significant impact on biodiversity values. It is up to the proponent to show that the proposed development will not significantly impact biodiversity – for example, a development proposing internal works to an existing building on a brownfield site with no threatened species habitat.
A proposed development could be considered as unlikely to have any significant impact on biodiversity values if it:
will not clear or remove native vegetation, other than a few single-standing trees with no native understorey in an urban area
will not clear or remove native vegetation, other than planted native vegetation that is not consistent with a plant community type known to occur in the same Interim Biogeographic Regionalisation of Australia (IBRA) subregion, such as street trees, trees in a car park, or landscaping
will have negligible adverse impact on threatened species and ecological communities, considering habitat suitability, abundance, habitat connectivity, movement of species, water sustainability, and non-natural features such as non-native vegetation and human-built structures
will have negligible adverse impact on protected animals because of impacts on flight path integrity.
Where there is reasonable doubt about potential impacts or where information is not made available to the department, a Biodiversity Development Assessment Report will be required.
If a Biodiversity Development Assessment Report waiver is not granted, there is no appeal mechanism: a Biodiversity Development Assessment Report must be submitted with the environmental impact assessment for the state significant development or state significant infrastructure.
Even with a waiver, the Secretary’s environmental assessment requirements might specify additional environmental matters that must be addressed in the environmental impact assessment, such as:
values not assessed under the Biodiversity Assessment Method
assessments under Part 7A of the Fisheries Management Act 1994 (NSW) of aquatic threatened species habitat in rivers, wetlands, lakes, estuaries and marine environments.
State significant development and state significant infrastructure projects proposed on ‘biodiversity certified land’ as described in Part 8 of the Biodiversity Conservation Act do not require a Biodiversity Development Assessment Report or waiver.