Biodiversity Conservation (Savings and Transitional) Regulation 2017

Holders of existing biodiversity conservation licences: Clause 4 treats any existing licence under Part 6 of the Threatened Species Conservation Act 1995 or the relevant licensing sections of the National Parks and Wildlife Act 1974 as a biodiversity conservation licence under Part 2 of the new Act. Holders do not need to reapply for the remainder of their licence term.

Parties to biobanking agreements and biodiversity stewardship agreements: Clause 13 deems biobanking agreements to be biodiversity stewardship agreements. Former biobank site owners and their counterparty the Minister are automatically treated as parties under the new Act regime.

Holders of biodiversity credits: Clause 19 preserves existing credits. The Environment Agency Head must determine the equivalent credits under the new Act. Landholders with obligations to retire credits under development consents or other instruments must comply with those obligations using new Act credits where the former Act credits have not yet been retired (clause 22).

Developers and consent authorities: Clause 28 continues the operation of assessments of significance and other planning instruments made under the former species impact assessment provisions of the Environmental Planning and Assessment Act 1979 as augmented by the Threatened Species Conservation Act 1995.

Landholders subject to property vegetation plans: Clause 60 preserves plans approved under the Native Vegetation Act 2003, treating them as land management (native vegetation) code authorisations under the Local Land Services Act 2013. The variation, termination, and registration provisions of the Native Vegetation Act 2003 continue to apply.

Persons prosecuted for pre-commencement offences: Clause 58 preserves offences committed under the former Acts and allows proceedings to continue after repeal under the provisions of the former Act. Defendants are subject to the penalties in force at the time of the offence.

Members of the former Scientific Committee: Clause 9 continues the Threatened Species Conservation Act 1995 Scientific Committee as the new Act Scientific Committee. Existing members, including the Chairperson and Deputy Chairperson, continue in office for the remainder of their terms.

Members of the Board of the Nature Conservation Trust: Clause 47 provides that board members cease to hold office on the repeal of the Nature Conservation Trust Act 2001 with no entitlement to compensation. They may be reappointed to the Biodiversity Conservation Trust Board if otherwise qualified.

Obligations to retire biodiversity credits (clause 22): Where a development consent, State significant infrastructure approval, activity approval, or biodiversity certification imposed an obligation to retire biodiversity credits under the Threatened Species Conservation Act 1995, that obligation survives repeal. If the credits have not been retired on commencement of the new Act, the obligation is read as requiring retirement of equivalent new Act credits. The Environment Agency Head determines the equivalents.

Compliance with continuing biobanking and certification agreements (clauses 15, 41): Parties to biobanking agreements and biodiversity certification agreements are bound by those agreements even after the relevant provisions of the Threatened Species Conservation Act 1995 were repealed. Remediation and enforcement orders can be made under sections 13.15 and 13.16 of the new Act in relation to breaches occurring before repeal.

Conservation measures under biodiversity certification (clause 38): Where biodiversity certification under Part 7AA of the Threatened Species Conservation Act 1995 required conservation measures (such as entering into agreements, acquiring land, or retiring credits), those obligations continue and can be satisfied under the equivalent instruments of the new Act.

Compliance with property vegetation plans (clause 60): Landholders whose land is subject to an approved property vegetation plan under the Native Vegetation Act 2003 remain bound by plan conditions. The provisions of the Native Vegetation Act 2003 relating to variation, termination, ownership transfer, registration, and disclosure continue to apply.

Minister's power to determine pending applications under former Acts (clauses 14, 36, 37): The Minister retains power to determine applications for biobanking agreements and biodiversity certification that were pending at repeal or that are filed in certain circumstances within defined windows after repeal. These determinations are made as if the former Act had not been repealed, but the resulting instruments are deemed to be new Act instruments.

Environment Agency Head's power to determine credit equivalence (clause 19(1)): Where biodiversity credits created under the Threatened Species Conservation Act 1995 survive repeal, the Environment Agency Head determines the reasonably equivalent credits under the new Act. This power enables the offset market to continue operating across the legislative transition.

Minister's power to gazette biodiversity certification windows (clause 37(2)): The Minister may publish a gazette order within 3 months after commencement of the new Act identifying proposed biodiversity certification applications that may still be made under the Threatened Species Conservation Act 1995, specifying the period (not exceeding 2 years) within which those applications must be made.

Investigation powers extended to former Act enforcement (clause 55): Powers under Part 12 of the new Act may be exercised to investigate compliance with or contraventions of a former Act, including after repeal. This enables authorised officers to use modern investigation tools when prosecuting historical environmental offences.

Delegation extensions (clause 64): The delegation powers of the Minister and the Environment Agency Head under section 14.4 of the new Act are extended to functions conferred by the former Acts and instruments under them.

Offences under former Acts preserved (clause 58): The repeal of a former Act does not affect any offence committed before that repeal. Proceedings may be brought after repeal for those offences, the issue of penalty notices continues, and courts may make orders, all under the provisions of the former Act. Clause 58(3) extends this to offences committed after repeal in relation to provisions of the former Act that are continued in force by the Regulation itself (such as the continued operation of property vegetation plans and biobanking agreements).

Civil proceedings preserved (clause 59): The repeal of a former Act does not affect civil proceedings that may be brought for breaches occurring before repeal. The former Act's civil enforcement provisions continue to apply.

Stop work orders continued (clause 52): A stop work order under the Threatened Species Conservation Act 1995 in force on repeal is taken to be a stop work order under Division 2 of Part 11 of the new Act, and is enforceable accordingly.

Remediation orders for pre-commencement offences (clauses 53, 54): A remediation order may be made under the new Act in relation to damage arising from an offence under the National Parks and Wildlife Act 1974 or the Native Vegetation Act 2003 committed before the new Act commenced. This closes any gap that might otherwise arise where the offending conduct predated the new Act.

General commencement (clause 2): The Regulation commenced on 25 August 2017, the same day as the Biodiversity Conservation Act 2016.

Pending biobanking agreement applications (clause 14):

• Applications pending at repeal or made within 6 months after repeal where relevant information was collected before repeal: must be determined within 21 months after commencement of the new Act.
• Applications related to Upper Hunter Biodiversity Plan or a biodiversity certification made before repeal: must be determined within 4 years after commencement.

Pending biobanking statement applications (clause 21): Applications pending at repeal may be determined within 12 months after commencement of the new Act. A statement issued under this provision ceases to have effect 2 years after it is issued if not acted on.

Existing biobanking statements not acted on (clause 20(3)): Any biobanking statement issued before repeal that has not been acted on ceases to have effect 2 years after repeal.

Biodiversity certification gazette declaration (clause 37(2)): The Minister has 3 months from commencement to gazette a declaration identifying proposed certification applications. The declared period for making those applications cannot exceed 2 years.

Annual reporting transition (clause 48): The first annual report of the Biodiversity Conservation Trust must include a report on the Nature Conservation Trust for any period not yet reported on.

Biodiversity Conservation Act 2016 (NSW): The primary successor legislation. Every instrument, credit, agreement, committee, trust, and approval under the former Acts is deemed converted to its equivalent under this Act.

Threatened Species Conservation Act 1995 (NSW) (repealed): The principal former Act being replaced. Most of the Regulation's provisions relate to the transition from this Act, covering its licensing (Part 6), biobanking agreement (Part 7A), biodiversity certification (Part 7AA), offset obligations, and Scientific Committee.

Native Vegetation Act 2003 (NSW) (repealed): Part 14 of the Regulation specifically addresses continuing property vegetation plans (clause 60), development consents (clause 61), and clearing notifications (clause 62) made under this Act before its repeal.

National Parks and Wildlife Act 1974 (NSW): The wildlife licensing sections (ss 120-132C) are continued as biodiversity conservation licences by clause 4(1)(b). Investigation powers under the old Act's authorised officer regime are also transitioned by clause 56.

Environmental Planning and Assessment Act 1979 (NSW): Part 7 of the Regulation addresses the interaction of the biodiversity assessment and species impact statement regime under the old planning legislation with the new biodiversity offset scheme under the new Act (clauses 27-34A).

Local Land Services Act 2013 (NSW): Property vegetation plans are treated as land management (native vegetation) codes under this Act (clause 60(2)). Investigation powers and delegation provisions are extended to Local Land Services functions involving the former Acts (clauses 55, 64).

Nature Conservation Trust Act 2001 (NSW) (repealed): The Nature Conservation Trust is continued as the Biodiversity Conservation Trust by the new Act (Part 10). The Regulation addresses the board, accounts, and Trust agreements in Part 10 (clauses 47-51).

Interpretation Act 1987 (NSW): Clause 45 clarifies that section 26 of the Interpretation Act 1987 applies to the making of public consultation documents before the new Act commenced, so that documents made in preparation for the new Act take effect on commencement.

Biobanking statements expire 2 years after repeal if not acted on: Clause 20(3) provides that a biobanking statement issued under the old Act ceases to have effect 2 years after repeal if it has not been acted on. Developers holding biobanking statements as approved offsets for consented development need to confirm that the statement remains valid by reference to this two-year deadline. There is no renewal mechanism; once the statement expires, the developer must seek a fresh biodiversity assessment under the new Act.

Proceedings for post-repeal conduct under continued former Act provisions: Clause 58(3) extends the preservation of former Act offences to conduct occurring after repeal in relation to provisions continued in force by the Regulation. This is relevant to parties with property vegetation plans: a landholder who clears vegetation in breach of an approved property vegetation plan after 25 August 2017 may still be prosecuted under the Native Vegetation Act 2003 framework because clause 60 continues the enforcement provisions of that Act.

Credit equivalence is determined by the Environment Agency Head, not the creditor: Clause 19(1) gives the Environment Agency Head unilateral power to determine which new Act credits are "reasonably equivalent" to former Act credits. A holder of biodiversity credits who has transitioned to the new Act scheme may find that the assigned equivalent credits are different in type or market value from the original credits. There is no express right of appeal from the equivalence determination in the Regulation itself; a holder would need to look to administrative law remedies.

Former Act obligation to retire credits survives new Act commencement: Clause 22 makes clear that an obligation to retire biodiversity credits imposed by a development consent, approval, or biodiversity certification before commencement survives repeal. Developers and consent authorities who assumed that the repeal of the Threatened Species Conservation Act 1995 discharged pending offset obligations are mistaken. The obligation continues and must be satisfied using new Act credits.

Nature Conservation Trust board members lose office without compensation: Clause 47 provides that existing board members cease to hold office on the repeal of the Nature Conservation Trust Act 2001 and are not entitled to remuneration or compensation for loss of office. Members who relied on their continued tenure would have no remedy.

Developer with pending biobanking statement application: A developer had applied under Part 7A of the Threatened Species Conservation Act 1995 for a biobanking agreement to generate biodiversity credits before the repeal. The application had not been determined on 25 August 2017. Under clause 14(1)(a), the Minister may determine the application within 21 months after that date under the former Act regime. If the agreement is entered into, it is deemed under clause 14(3) to be a biodiversity stewardship agreement under the new Act.

Prosecution for historical wildlife offence: In 2016, a person was found in possession of eggs of critically endangered bird species in breach of former sections 101(1) and 118A(1) of the National Parks and Wildlife Act 1974. The offences were committed before the repeal of those provisions on 25 August 2017. By virtue of clause 58, the repeal of the relevant sections does not affect the prosecution. Proceedings continue under those former provisions as if the Act had not been repealed, as confirmed in Chief Executive Office of Environment and Heritage v Somerville [2021] NSWLEC 78.

Landholder with property vegetation plan wanting to clear: A landholder holds an approved property vegetation plan under the Native Vegetation Act 2003 authorising the clearing of 10 hectares of native vegetation on their property. The plan was approved before 25 August 2017. After commencement of the new Act, the landholder may clear in accordance with the plan because clause 60(1) preserves the plan and clause 60(2) treats the clearing as authorised under a land management (native vegetation) code under the Local Land Services Act 2013.

Holder of former Act biodiversity credits needing to discharge obligation: A developer holds a condition on their development consent requiring retirement of 50 biodiversity credits under the Threatened Species Conservation Act 1995. As at 25 August 2017, the credits had not been retired. The obligation continues under clause 22. The developer must now retire the reasonably equivalent credits under the new Act as determined by the Environment Agency Head under clause 19(1).