Biodiversity Conservation (Savings and Transitional) Further Amendment Regulation 2018 (NSW)

New South Wales

Biodiversity Conservation (Savings and

Transitional) Further Amendment Regulation

2018

under the

Biodiversity Conservation Act 2016

His Excellency the Governor, with the advice of the Executive Council, has made the following

Regulation under the Biodiversity Conservation Act 2016.

GABRIELLE UPTON, MP

Minister for the Environment

Explanatory note

The object of this Regulation is to make further provisions of a savings and transitional nature that are
consequential on the enactment of the Biodiversity Conservation Act 2016 and the Local Land Services
Amendment Act 2016. This Regulation:

(a) extends the new procedure for biodiversity assessment set out in the Biodiversity Conservation Act 2016 (which presently applies to the consideration of an application for the modification of a

planning approval only if the approval was granted after the commencement of that Act) so that it

applies to the consideration of applications to modify planning approvals granted in accordance with the former planning provisions, and
(b)	varies the procedure applicable in those cases, so that the biodiversity development assessment report prepared for the application for modification is required to consider only those impacts of the

development on the biodiversity values of the land that result from the modification of the

development and not those associated with the development as approved (when different procedures applied), and
(c)	extends the power of the Environment Agency Head to accept an enforceable undertaking under the

Biodiversity Conservation Act 2016 (which presently applies only in relation to offences under that

Act) so that undertakings may be accepted in relation to offences alleged to have been committed against any of the legislation repealed by that Act or by the Local Land Services Amendment Act 2016 (namely the Native Vegetation Act 2003, the Threatened Species Conservation Act 1995, the
Nature Conservation Trust Act 2001 and Parts 7–9 of the National Parks and Wildlife Act 1974).

This Regulation is made under the Biodiversity Conservation Act 2016, including sections 6.16 (regarding
the content of biodiversity assessment reports), 7.17 (3) (regarding applications for modification of planning
approvals or activities) and 14.10 (the general regulation-making power) and clause 1 of Schedule 9 to the
Act (regarding savings and transitional provisions consequent on the enactment of the Act).
Biodiversity Conservation (Savings and Transitional) Further

Amendment Regulation 2018

under the

Biodiversity Conservation Act 2016

1      Name of Regulation

This Regulation is the Biodiversity Conservation (Savings and Transitional) Further
Amendment Regulation 2018.

2      Commencement

This Regulation commences on the day on which it is published on the NSW legislation website.

Schedule 1 Amendment of Biodiversity Conservation
(Savings and Transitional) Regulation 2017

[1]      Clause 30A

Insert after clause 30:

30A New Act applies to modifications of planning approvals granted or applied for
before commencement of new Act

(1)

The provisions of Division 4 of Part 7 of the new Act apply to applications for
the modification of a planning approval:

(a)	where the planning approval was granted before the commencement of the new Act, and
(b)	where the planning approval was granted on or after the commencement of the new Act, as a result of the determination of a pending or interim planning application.

(2)

For that purpose:

(a)	the provisions apply in relation to the original development as proposed to be modified, and
(b)	a biodiversity development assessment report is required to be

submitted and taken into consideration if Division 4 of Part 7 of the new
Act would have applied to the original development (as proposed to be
modified) if planning approval had been granted after the

commencement of the new Act, and

(c) however a biodiversity development assessment report is not required

to be submitted if the authority or person 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, and

(d)	the biodiversity development assessment report submitted with the application for modification:
(i) is to take into account any measures already taken to avoid, minimise or offset the impact on biodiversity values in

connection with the planning approval before the proposed
modification, and

(ii)      is to take into account only the additional impact on biodiversity

values resulting from the modification of the development and
not those associated with the development as approved, and

(e) if an application for the original development as proposed to be

modified would have been required to be refused because of serious and

irreversible impacts on biodiversity values, the application for
modification is required to be refused.

[2]      Clause 58 Offences under former Act not affected

Omit clause 58 (2) (d).

[3]      Clause 59A

Insert after clause 59:

59A Undertakings in relation to previous offences under former Acts

(1)	Section 13.27 of the new Act extends to matters arising under a former Act.
(2)	Accordingly, an undertaking may be accepted under section 13.27 of the new
Act in connection with a matter in relation to which the Environment Agency
Head has a function under the new Act in or as a result of the commission or the alleged commission of an offence under a former Act.
(3)	This clause extends to offences committed or alleged to have been committed
after the repeal of a former Act in relation to a provision of the former Act (or
of the regulations under the former Act) that is continued in force by this Regulation.