True Conservation Association v The Minister Administering the Threatened Species Conservation Act 1995

July 2008

In these proceedings the TCA challenged the decision by the Minister on 14 Dec 2007 to grant biodiversity certification to State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP). The effect of biodiversity certification is that species impact statements no longer need to be carried out for individual development applications in the area covered by the Growth Centres SEPP. Biodiversity certification is a process whereby up-front planning for threatened species protection is intended to take the place of site-by-site assessments. The Minister cannot grant biodiversity certification unless he or she is satisfied that the SEPP will lead to the overall improvement or maintenance of biodiversity values.

The TCA believed that, in this case, biodiversity certification was granted prematurely and based on inadequate information. The plan would result in the clearing of 1,856 ha of some of the rarest vegetation communities in the State. Approximately 16 threatened plant species and 22 threatened fauna species would suffer a loss of habitat as a result of the planned development under the Growth Centres SEPP.

On 25 June 2008 the Threatened Species Conservation (Special Provisions) Bill 2008 passed through both houses of the NSW Parliament. The bill conferred biodiversity certification on the area within the Growth Centres SEPP covered by the original order. This meant that the Growth Centres SEPP would have the benefit of biodiversity certification, even if the original biodiversity order was declared invalid by the Court.

The NSW Government has shown scant respect for the rule of law by introducing special legislation to avoid having to comply with the requirements of the Threatened Species Conservation Act in relation to the Growth Centres SEPP. This sets a poor precedent for other areas of the State which are also subject to development pressure.

EDO NSW is grateful to barrister Geoffrey Kennett SC for his assistance in this matter.

Judgment