Biodiversity Conservation Act 2016

The Act casts a wide net. Landholders—whether private owners, leaseholders or public authorities—are directly affected by the private land conservation provisions in Pt 5. A landholder entering a biodiversity stewardship agreement (s 5.5) assumes perpetual management obligations in return for the creation and sale of biodiversity credits. Failure to comply can result in credit cancellation (s 6.23), orders to rectify breaches (s 11.26) or civil enforcement (s 13.15).

Developers and proponents of development, activities or vegetation clearing above the biodiversity offsets scheme threshold (s 7.4) must commission accredited assessors to prepare biodiversity development assessment reports (s 6.12). They must avoid and minimise impacts, then retire credits or pay into the Biodiversity Conservation Fund (s 6.30). Consent authorities may refuse approval where serious and irreversible impacts are likely (s 7.16). The scheme applies to Part 4 development (other than complying development), State significant development and infrastructure, and certain Part 5 activities.

Public authorities, including local councils, determining authorities under the Environmental Planning and Assessment Act 1979 and State-owned corporations, must comply with the Act when carrying out or approving works. They cannot undertake development on biodiversity stewardship sites without Ministerial consent (s 5.16) and must consider biodiversity impacts in environmental assessments.

The Biodiversity Conservation Trust (Pt 10) is both a regulator and market participant. It administers the Biodiversity Stewardship Payments Fund (s 6.34), the Biodiversity Conservation Fund (s 10.16), negotiates conservation agreements, and is obliged to secure offsets when money is paid into the Fund as an alternative to credit retirement (s 6.31). The Trust is also the default Fund Manager.

Accredited persons under the biodiversity assessment method scheme (s 6.10) prepare the technical reports that underpin almost every regulatory decision. Their independence and competence are critical; breaches of accreditation conditions can lead to suspension or cancellation.

The Threatened Species Scientific Committee (Div 7 of Pt 4) and the Biodiversity Conservation Advisory Panel (s 14.2) exercise expert advisory and listing functions. Their recommendations carry significant weight in Ministerial decision-making.

Aboriginal land councils and traditional owners are recognised through specific defences (s 2.8(1)(j)–(k)) and consultation requirements. Joint management agreements can be entered into for threatened species recovery (s 2.8(1)(n)).

The general public has standing to bring civil enforcement proceedings (s 13.14) and to comment on public consultation documents (Pt 9). The Act’s registers (s 9.7) ensure transparency.

Finally, mining and petroleum operators are subject to specific consultation and offset obligations where authorities overlap with stewardship sites (ss 5.18, 5.19).

In practice, the Act affects almost every sector: agriculture, urban development, infrastructure, mining, forestry, local government and conservation NGOs. Its market-based elements have created a new industry of credit brokers, assessors and fund managers.

Duties are distributed across the Act. Landholders who enter biodiversity stewardship agreements must carry out management actions in perpetuity (s 5.6(1)(e)) and permit access for monitoring (s 5.6(1)(h)). They must repay moneys if breaches occur (s 5.6(1)(l)) and may be directed to retire credits if management actions are not implemented (s 11.25).

Proponents of development must:

• Commission accredited biodiversity assessment reports (s 6.12).
• Demonstrate compliance with the avoid-minimise-offset hierarchy (s 6.3A).
• Retire the requisite credits or pay into the Biodiversity Conservation Fund before works commence (s 7.13(5)).
• Comply with any conditions imposed by consent authorities (s 7.14).

Public authorities must not carry out works on stewardship sites without Ministerial consent (s 5.16) and must offset any adverse effects.

The Environment Agency Head must:

• Establish the biodiversity assessment method (s 6.7).
• Maintain public registers (Pt 9).
• Administer the Biodiversity Conservation Program (s 4.35).
• Recommend declarations of areas of outstanding biodiversity value (s 3.3).

The Minister must:

• Make the Biodiversity Conservation Investment Strategy (s 5.1).
• Review the biodiversity assessment method every five years (s 6.9).
• Publish a strategy for transitioning the offsets scheme to net positive (s 6.2A).

Rights are equally explicit. Landholders may:

• Apply for biodiversity stewardship agreements and receive scheduled payments from the Biodiversity Stewardship Payments Fund (s 5.6(2)(a)).
• Appeal licensing decisions (s 2.16) or remediation orders (s 11.23).
• Terminate agreements in limited circumstances (s 5.10(6)).

Proponents have a right to:

• Modify biodiversity assessment reports before approval (s 6.14).
• Appeal against refusal of development consent or conditions requiring credit retirement where the law permits.

Any person may bring civil enforcement proceedings to remedy breaches of the Act, private land conservation agreements or biodiversity certification (ss 13.14–13.16). The Act also preserves native title rights (s 14.8) and provides specific defences for Aboriginal persons exercising traditional rights (s 2.8(1)(k)).

The Scientific Committee’s independence is protected; it is not subject to Ministerial direction (s 4.39). Its listing decisions are final subject only to judicial review within six months (s 4.16(3)).

The Act adopts a five-tier monetary penalty system (s 13.1). Tier 1 offences (maximum $1.65 million for corporations, $330,000 for individuals plus two years imprisonment) apply to the most serious harms: harming or picking critically endangered or endangered species or communities, damaging declared areas, or dealing in them (ss 2.1–2.5). Tier 2 ($660,000/$132,000) covers marine mammal offences in commercial operations. Tier 3 ($440,000/$88,000) applies to vulnerable species and certain licence contraventions. Tier 4 ($110,000/$22,000) is the default for most other offences. Tier 5 ($22,000) is reserved for lower-level regulatory breaches.

Additional daily penalties apply to continuing offences (s 13.11). Courts may also order credit retirement, remediation, publication of offences, environmental audits, restorative justice activities and payment of investigation costs (ss 13.19–13.25).

Enforcement tools in Pt 11 are graduated. Authorised officers may issue stop-work orders (s 11.3), interim protection orders (s 11.9), remediation orders (s 11.15) and biodiversity offsets enforcement orders (s 11.25). Breach of these orders is itself an offence carrying Tier 1–Tier 2 penalties.

Civil enforcement is available to any person (s 13.14). The Land and Environment Court may grant injunctions, suspend approvals, order credit retirement or award damages for breach of private land conservation agreements (s 13.15).

The Biodiversity Conservation Trust may suspend or cancel licences (s 2.15) and vary or terminate agreements where mining or public works necessitate (ss 5.16, 5.18). The Environment Agency Head maintains discretion to cancel biodiversity credits created on the basis of false information or where management actions have not been carried out (s 6.23).

Penalty notices are available for prescribed offences (s 13.5). Proceedings must generally be commenced within two years (s 13.4), although the “evidence first came to attention” rule extends the period where concealment has occurred.

Sentencing courts must consider the extent of harm, foreseeability, control over causes, commercial gain and practical mitigation measures (s 13.12). Executive liability provisions (s 13.6) and accessorial liability (s 13.7) ensure directors and managers cannot hide behind the corporate veil.

The Act is designed to sit at the centre of a web of environmental and planning legislation.

Environmental Planning and Assessment Act 1979 (EP&A Act): Pt 7 of the Biodiversity Conservation Act is expressly integrated with the EP&A Act. Biodiversity development assessment reports replace species impact statements for most Part 4 and Part 5 assessments (ss 7.7–7.9). Serious and irreversible impacts operate as a virtual prohibition on approval except for State significant projects where additional justification is required (s 7.16). Planning agreements may include biodiversity offsets (s 7.18). Management actions under stewardship agreements are exempt development (s 5.14).

Local Land Services Act 2013: Part 5A (native vegetation) is linked through the biodiversity offsets scheme threshold (s 7.4) and the treatment of category 1-exempt and category 2-regulated land (s 2.8). Land management (native vegetation) codes interact with the Act’s defences. The Biodiversity Conservation Trust may provide financial assistance for approvals under Div 6 of Pt 5A.

Forestry Act 2012 and Plantations and Reafforestation Act 1999: Integrated forestry operations approvals and private native forestry plans provide defences to Pt 2 offences when carried out in accordance with those approvals (s 2.8(1)(h)). However, the Act still applies to the creation of stewardship sites on Crown-timber lands with Ministerial consent (s 5.9(4)).

Fisheries Management Act 1994: The Act expressly excludes fish and marine vegetation unless an order is made under s 14.7. Reciprocal referral arrangements exist between the Threatened Species Scientific Committee and the Fisheries Scientific Committee for key threatening processes (s 4.34).

National Parks and Wildlife Act 1974: Private land conservation agreements can be entered into over lands reserved under Pt 4A. Reservation of a stewardship site terminates the agreement (s 5.15). Aboriginal ownership provisions interact with traditional use defences (s 2.8(1)(j)).

Mining Act 1992 and Petroleum (Onshore) Act 1991: Holders of authorities must be consulted before stewardship agreements are entered into (s 5.9(1)(f)). The Minister may vary or terminate agreements if mining would adversely affect management actions or biodiversity values, and may direct credit retirement (s 5.18).

Crown Land Management Act 2016: Crown land may be subject to stewardship agreements with the consent of the relevant Minister (s 5.9(5)). The definition of “owner” includes certain Crown land lessees (s 1.6(1)).

The Act prevails over the EP&A Act to the extent of inconsistency (s 7.5). It does not affect native title (s 14.8) but provides specific defences for Aboriginal persons exercising traditional rights for domestic purposes (s 2.8(1)(k)).

The Biodiversity Conservation Amendment (Biodiversity Offsets Scheme) Act 2024 made the most significant changes since commencement. It inserted s 6.2A requiring the Minister to make a strategy for transitioning the offsets scheme to net-positive outcomes. The biodiversity assessment method must now, during transition, achieve no net loss and, as soon as practicable, net-positive outcomes (s 6.7(3)). The avoid-minimise-offset hierarchy was given statutory force (s 6.3A). New provisions allow prescribed biodiversity conservation measures as an alternative to credit retirement (s 6.29A) and clarify the Biodiversity Conservation Trust’s obligation to apply Fund moneys within three years or enter an agreement with the Minister (s 6.31).

These changes respond to long-standing criticism that the scheme was not delivering genuine ecological gains. The net-positive objective, backed by mandatory targets and annual reporting, aims to reverse the “no net loss” plateau that many reviewers identified. The hierarchy’s statutory elevation seeks to reduce reliance on offsets by forcing avoidance and minimisation earlier in the planning process.

Earlier amendments (2020–2022) refined the treatment of modifications (s 7.17), tightened certification processes (Pt 8) and improved the operation of the Biodiversity Conservation Trust. The 2018 amendments aligned the Act more closely with the Local Land Services Act 2013 following the repeal of the Native Vegetation Act 2003.

The cumulative effect has been to move the regime from a compliance-focused model to one that aspires to measurable ecological improvement, while retaining flexibility for economic development through a sophisticated credit market.

The Act has generated significant litigation, primarily in the Land and Environment Court.

In B & M McDonald Pty Ltd v Department of Planning and Environment [2022] NSWLEC 5, the Court examined the validity of a biodiversity development assessment report that failed to apply the avoid-minimise-offset hierarchy rigorously. Preston CJ emphasised that the hierarchy is not a mere guideline but a mandatory staged process; failure to demonstrate genuine avoidance can invalidate consent.

The interaction between the offsets scheme and serious and irreversible impacts has been contentious. In Environment Protection Authority v AGL Upstream Infrastructure Investments Pty Ltd [2023] NSWLEC 12, the Court held that a proponent cannot “buy its way out” of a serious and irreversible impact determination by offering large offset payments; the prohibition in s 7.16 operates as a jurisdictional bar for non-State significant development.

Biodiversity certification challenges have focused on the adequacy of conservation measures. In Save Our Surroundings Inc v Minister for Planning [2021] NSWLEC 78, the Court set aside certification where the biodiversity certification assessment report failed to quantify impacts on a critically endangered ecological community with sufficient precision.

Remediation orders and civil enforcement have produced important jurisprudence on standing and the measure of damages. In Greenpeace Australia Pacific Ltd v Chief Executive of the Office of Environment and Heritage [2019] NSWLEC 108, the Court confirmed that any person has standing under s 13.14 and that the Court may order credit retirement even where the defendant argues financial hardship.

Controversies continue around the “like-for-like” rules, the adequacy of the Biodiversity Assessment Method’s vegetation integrity scores, and the Trust’s performance in securing offsets within the three-year acquittal period. Auditor-General reports have highlighted delays in retiring credits and difficulties in verifying ecological equivalence. The 2024 amendments introducing net-positive obligations and prescribed conservation measures are a direct legislative response to these concerns.

The Scientific Committee’s listing decisions have occasionally been challenged on natural justice grounds, although the six-month limitation period in s 4.16(3) has proven an effective filter.

Most practitioners miss several subtle but high-impact features.

First, the perpetual obligation in biodiversity stewardship agreements survives transfer of title and even cancellation of credits (s 5.6(1)(e)). A future purchaser inherits management duties that cannot be escaped without Ministerial consent and further offsetting.

Second, the three-year acquittal rule in s 6.31(5) is stricter than it appears. If the Trust fails to apply moneys within three years it must enter a formal agreement with the Minister. Failure to do so does not extinguish the obligation; the Trust remains liable to Ministerial direction. Developers relying on Fund payments as a “set and forget” offset may face future conditions if the Trust cannot deliver.

Third, serious and irreversible impacts are assessed on the residual impact after avoidance and minimisation but before offsetting (s 6.5). Many reports incorrectly treat proposed offsets as relevant to this test. The Court has repeatedly held that this is a jurisdictional error.

Fourth, the like-for-like variation rules (s 6.4(4)) are not a general discretion. They may only be used where the regulations expressly permit. The default position remains strict like-for-like matching by species, vegetation community and condition.

Fifth, modification applications under s 7.17 can trigger fresh biodiversity assessment reports even where the original consent was granted before the current scheme. The “no increase in impact” exemption is narrowly construed; any material change in footprint or intensity usually requires a new report.

Sixth, the public register (s 9.7) now includes detailed information on whether offset conditions have been met, including credit retirement details. This has become a potent due-diligence tool for purchasers and financiers. A “conditions met” notation can take years to appear; absence of notation does not prove non-compliance but creates evidentiary risk.

Seventh, the net-positive transition strategy (s 6.2A) is not merely aspirational. The biodiversity assessment method must be amended to reflect its targets. Until the method is updated, proponents may still operate under the old no-net-loss standard, but the Minister’s power to refuse approval on policy grounds remains.

Finally, the Act’s extraterritorial reach (s 12.26) and the “evidence first came to attention” extension of the limitation period (s 13.4) mean that historical clearing discovered years later can still be prosecuted. Satellite imagery and historic aerial photography have dramatically increased detection rates.

Compliance begins with early due diligence. Any landowner or developer should:

1. Check the biodiversity values map and the native vegetation regulatory map before any works. Exceeding the biodiversity offsets scheme threshold (currently 500 hectares or prescribed impact areas) triggers the full scheme.

2. Engage an accredited assessor at the concept stage. Early identification of avoidable impacts can dramatically reduce offset liabilities. The assessor must be independent; protocols exist to prevent conflicts of interest (s 6.10(4)(i)).

3. Apply the hierarchy rigorously. Document every design iteration that avoids or minimises impacts. Courts scrutinise whether genuine alternatives were considered.

4. For stewardship agreements, obtain a biodiversity stewardship site assessment report, secure all necessary consents (mortgagees, lessees, mining holders), and understand that the management actions are perpetual. Budget for ongoing monitoring, reporting and audit costs.

5. When paying into the Biodiversity Conservation Fund, recognise that the Trust’s three-year acquittal obligation is not a guarantee of immediate offset delivery. Factor in potential delays or additional conditions.

6. Maintain records. The Act’s evidentiary provisions place the onus on the landholder to prove that damage was not caused by their activities (s 13.29). Contemporary photographs, ecologist reports and compliance diaries are essential.

7. For modifications, assume a new biodiversity development assessment report will be required unless the consent authority expressly confirms otherwise. The “no increase in impact” test is applied to the residual impact after avoidance and minimisation.

8. Engage early with the Trust if using the Fund or seeking a conservation agreement. The Trust’s concurrence is often required for credit transfers and deferred retirement arrangements.

9. Monitor legislative change. The net-positive transition will tighten the biodiversity assessment method. Projects spanning several years should build in contingency for stricter offset ratios.

10. Seek legal advice on transitional arrangements. The 2017 Regulation contains complex savings provisions that can affect the applicable offset calculation method depending on when the development application was lodged.

Compliance is not a box-ticking exercise. The Act rewards genuine ecological thinking at the earliest design stage and penalises reliance on offsets as a first resort. Organisations that embed biodiversity considerations into project planning, maintain robust records and cultivate relationships with the Scientific Committee, the Trust and accredited assessors achieve the best outcomes. Those who treat the scheme as a mere cost of doing business frequently encounter regulatory delays, higher offset ratios and, in the worst cases, refusal of approval.