NSW biodiversity reforms 2016 – Saving our species - EDO NSW

NSW biodiversity reforms 2016: issue 4 – Saving our species

We know that biodiversity in NSW is on the decline. Will the new legislation under NSW Government’s proposed biodiversity reform package maintain protections under current laws for saving our precious species? It appears not.

This is the fourth of six key issues we’ve identified in the reform package. View all six issues here.

What protections are there for biodiversity in the new legislation? 

There are two key proposed laws in the reform package: the Draft Biodiversity Conservation Bill and the Draft Local Land Services Bill. These two Bills appear to be in conflict, with potentially disastrous consequences for our threatened species.

The Biodiversity Conservation Bill
The Draft Biodiversity Conservation Bill contains familiar provisions for threatened species, carrying over some of the mechanisms in our current threatened species laws. 

The Bill incorporates the existing Saving Our Species program, in which threatened species are categorised into different streams for prioritised management actions and funding.[1] The Bill retains the NSW Scientific Committee and contains elements that aim to align better with international categories and national threatened species lists. There are offence provisions for harming threatened animals or damaging habitat without authorisation.

The Bill provides for a category of ‘serious and irreversible impacts’, although these have not yet been defined and will not act as a red light for major projects. Critical habitat will be replaced by a new category of ‘Area of Outstanding Biodiversity Value’ that can be declared by the Minister for the Environment, although these areas can still be subject to clearing applications.

Taken alone, the Bill appears to be continuing the threatened species provisions of the current system. But, when you examine the overall reform package, potential problems become apparent.

Two Bills in conflict
While on one hand the Biodiversity Conservation Bill carries over provisions of our current threatened species laws, at the same time the Local Land Services Bill will increase known threats to those species by allowing more land clearing via self-assessed codes and discretionary development applications. 

To illustrate, consider how the two bills treat hollow bearing trees, which provide critical habitat, such as nesting sites, for many threatened species. The Biodiversity Conservation Bill lists ‘loss of hollow bearing trees’ as a key threatening process. At the same time, the Local Land Services Bill allows clearing of paddock trees without approval. It will be difficult to enforce the protection of hollow bearing trees under biodiversity law when under land clearing law no formal approval is required for cutting these trees down.

The legislative detail and missing pieces of the puzzle
There are a number of other issues we have identified from the vast reform package that suggest the legislative framework will act to reduce environmental protections, including issues about Local Land Services resourcing, mapping and how urban clearing and biodiversity will be regulated.

In the package, the NSW Government is departing from a key recommendation of the Independent Biodiversity Legislation Review Panel – that land clearing involving a change of land use should be assessed under planning laws – and is instead handing the vast majority of clearing approvals to the Local Land Services which currently do not have the resources or expertise to carry out these functions.

Also, as noted in the first blog in this series, how the new legislation is applied will depend heavily on future mapping, which has not yet been undertaken and, we predict, is likely to encounter problems and be highly contested.

Urban areas identified under the maps will be treated differently. Urban areas will not be covered by the new native vegetation scheme – the Bills specifically exclude Sydney and Newcastle Local Government Areas, all urban and large lot residential zones, and e-zones E2, E3, E4. Biodiversity in these areas will be covered by a new State Environmental Planning Policy, a new model Development Control Plan (DCP) and by the new Biodiversity Assessment Methodology (BAM). The State Environment Planning Policy that will specify how urban clearing will be regulated is not public yet.

It is very difficult to predict the fate of urban biodiversity in the absence of crucial details, but with what we do know about expanded application of non-like for like offsets, it is likely that certain urban coastal developments will be less constrained by strict offset requirements, resulting in a net loss of some species and communities in areas of development pressure.

The rural/urban regulatory divide will therefore be continued, which begs the question – how fair will the new laws be? We explore the equity of the reforms in the next blog in this series.

Next in this series: Equity?

About the reforms

The NSW Government has released a draft law and policy package that represents a serious retrograde step for biodiversity, as it involves removing many of NSW’s long-held environmental protections.

Public submissions on the reforms close on Tuesday 28 June 2016. Find out how to get involved via the links below.



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[1] See Saving Our Species, Office of Environment & Heritage