Threatened Species Conservation Act 1995 (NSW)
An Act to conserve threatened species, populations and ecological communities of animals and plants; to amend the National Parks and Wildlife Act 1974, the Environmental Planning and Assessment Act 1979 and certain other Acts; to repeal the Endangered Fauna (Interim Protection) Act 1991; and for other purposes.
This Part contains provisions that set out the objects of this Act and define terms used in this Act. The Part also contains machinery provisions.
This Act is the Threatened Species Conservation Act 1995.
This Act commences on a day or days to be appointed by proclamation, except as provided in this section.
Section 155 (2) commences on the date of assent to this Act.
The objects of this Act are as follows:
(a) to conserve biological diversity and promote ecologically sustainable development, and
(b) to prevent the extinction and promote the recovery of threatened species, populations and ecological communities, and
(c) to protect the critical habitat of those threatened species, populations and ecological communities that are endangered, and
(d) to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities, and
(e) to ensure that the impact of any action affecting threatened species, populations and ecological communities is properly assessed, and
(f) to encourage the conservation of threatened species, populations and ecological communities by the adoption of measures involving co-operative management.
In this Act:
(a) humans, or
(b) fish within the meaning of Part 7A of the Fisheries Management Act 1994.
Some types of fish may be included in the definition of
(a) genetic diversity—the variety of genes (or units of heredity) in any population,
(b) species diversity—the variety of species,
(c) ecosystem diversity—the variety of communities or ecosystems.
(a) buildings and other structures permanently fixed to land, and
(b) land covered with water, and
(c) the sea or an arm of the sea, and
(d) a bay, inlet, lagoon, lake or body of water, whether inland or not and whether tidal or not, and
(e) a river, stream or watercourse, whether tidal or not.
(a) every person who, either at law or in equity:
(i) is entitled to the land for any estate of freehold in possession, or
(ii) is a person to whom the Crown has lawfully contracted to sell the land under the Crown Lands Act 1989 or any other Act relating to the alienation of lands of the Crown, or
(iii) is entitled to receive, or is in receipt of, or if the land were let to a tenant would be entitled to receive, the rents and profits in respect of the land, whether as beneficial owner, trustee, mortgagee in possession or otherwise, and
(b) a person who leases land under the Crown Lands Act 1989, the Crown Lands (Continued Tenures) Act 1989 or the Western Lands Act 1901), and
(c) any other person who, under the regulations, is taken to be the owner of land.
Some types of marine vegetation may be included in the definition of
In some cases vulnerable ecological communities are excluded from this expression. See subsection (5).
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
A reference in this Act to animal-life or plant-life indigenous to New South Wales is a reference to animal-life or plant-life of a species that was established in New South Wales before European settlement.
A reference in this Act to New South Wales includes a reference to the coastal waters of the State.
For the purposes of the definition of
In Parts 6 and 7, a reference to
Vulnerable ecological communities are excluded from the licensing provisions of this Act and from related offences under the National Parks and Wildlife Act 1974. However, the Chief Executive may prepare a recovery plan in respect of a vulnerable ecological community and that plan and the provisions of Division 2 of Part 4 of this Act apply in respect of the implementation of that plan.
For the purposes of this Act,
However, a reference in this Act to biodiversity values does not extend to biodiversity values as they relate to fish, or marine vegetation, within the meaning of Part 7A of the Fisheries Management Act 1994, other than those that are considered to be animals or plants because of an order made under section 5A of this Act.
Introductory notes to Parts and other notes do not form part of this Act.
The Minister may, by order made with the concurrence of the Minister administering the Fisheries Management Act 1994:
(a) declare a species of fish to be a species of animal for the purposes of this Act if it is an invertebrate and it is a species that may inhabit a terrestrial environment at some stage of its biological development, or
(b) declare a species of marine vegetation to be a species of plant for the purposes of this Act if it is a species that may inhabit freshwater or a terrestrial environment at some stage of its biological development.
Any species of fish or marine vegetation that is the subject of an order in force under this section is taken to be a species of an animal or plant for the purposes of this Act, in accordance with the terms of the order.
The Minister and the Minister administering the Fisheries Management Act 1994 may at any time consult with each other for the purpose of determining whether an order under this section should be made and the terms of the order.
The Ministers may also consult with the Chairperson of the Scientific Committee, the Chairperson of the Fisheries Scientific Committee and any other person or body before making an order under this section.
If the Ministers are unable to resolve any dispute between them as to the making or the terms of an order under this section, the matter is to be referred to the Premier for resolution. The decision of the Premier in relation to the matter is to be given effect to by the Ministers.
An order under this section is to be published in the Gazette.
For avoidance of doubt, an order under this section does not require the species concerned to be listed under Part 2 of this Act.
In this section:
This Part provides for the identification, and classification, of the species, populations and ecological communities with which this Act is concerned. It also provides for the identification of key threatening processes that are most likely to jeopardise the survival of those species, populations and ecological communities. To this end, this Part provides for the listing:
• in Schedule 1, of endangered species, endangered populations and ecological communities and species that are presumed to be extinct, and
• in Schedule 1A, of critically endangered species and ecological communities, and
• in Schedule 2, of vulnerable species and vulnerable ecological communities, and
• in Schedule 3, of key threatening processes.
The initial lists of threatened species, that is, species that are endangered, presumed extinct or vulnerable are contained in this Act on its commencement. Responsibility for inserting lists of critically endangered species, endangered populations, endangered and critically endangered ecological communities and threatening processes, and for adding items to, omitting items from or amending items in the lists of threatened species, populations and ecological communities and threatening processes rests with the Scientific Committee.
Division 1 makes provision with respect to Schedules 1–3 that are to contain lists of the species, populations and ecological communities and key threatening processes with which this Act is concerned.
Division 2 deals with eligibility for listing.
Division 3 describes the process by which the items may be added to or omitted from lists and by which items in lists may be amended, and makes provision for public participation in that process.
Division 4 describes the process by which species that are endangered or critically endangered may be listed provisionally in Schedule 1 or 1A, on an emergency basis, before the formal listing process described in Division 3 has been undertaken or completed, and makes provision for public participation in that process.
Division 5 describes the process by which certain minor amendments may be made to Schedules 1–3.
Offences relating to the harming of threatened species, populations and ecological communities (being animals) and the picking of threatened species, populations and ecological communities (being plants) are contained in the National Parks and Wildlife Act 1974.
Part 1 of Schedule 1 contains a list of endangered species for the purposes of this Act.
Part 2 of Schedule 1 contains a list of endangered populations for the purposes of this Act.
Part 3 of Schedule 1 contains a list of endangered ecological communities for the purposes of this Act.
Part 4 of Schedule 1 contains a list of species presumed extinct for the purposes of this Act.
Part 1 of Schedule 1A contains a list of critically endangered species for the purposes of this Act.
Part 2 of Schedule 1A contains a list of critically endangered ecological communities for the purposes of this Act.
Any endangered or critically endangered species or species presumed extinct that is a listed threatened species under the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth is marked with an asterisk to show that the species is considered to be a threatened species nationally.
Any endangered or critically endangered ecological community that is a listed threatened ecological community under the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth is marked with an asterisk to show that it is considered to be a threatened ecological community nationally.
Part 1 of Schedule 2 contains a list of vulnerable species for the purposes of this Act.
Part 2 of Schedule 2 contains a list of vulnerable ecological communities for the purposes of this Act.
Any vulnerable species that is a listed threatened species under the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth is marked with an asterisk to show that it is considered to be a threatened species nationally.
Any vulnerable ecological community that is a listed threatened ecological community under the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth is marked with an asterisk to show that it is considered to be a threatened ecological community nationally.
Schedule 3 contains a list of key threatening processes for the purposes of this Act.
As soon as practicable after a species or ecological community that is or was indigenous to New South Wales becomes a listed threatened species or a listed threatened ecological community under the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth, the Scientific Committee is to consider whether, in accordance with Divisions 2 and 3, the species or ecological community should be listed as a threatened species or threatened ecological community in Schedule 1, 1A or 2 to this Act.
Any species or ecological community that is inserted in a Schedule pursuant to this section is to be marked with an asterisk to show its national status.
If a threatened species or threatened ecological community ceases to be a listed threatened species or a listed threatened ecological community under the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth:
(a) the Minister is, by order published in the Gazette, to amend Schedule 1, 1A or 2 to this Act to omit the asterisk showing its national status, and
(b) the Scientific Committee is to consider, in accordance with Division 3, whether the species or ecological community should be omitted from Schedule 1, 1A or 2 to this Act.
If a threatened species or threatened ecological community becomes a listed threatened species or a listed threatened ecological community under the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth subsequent to its being listed in Schedule 1, 1A or 2 to this Act, the Minister is, by order published in the Gazette, to amend Schedule 1, 1A or 2 to this Act to insert an asterisk showing its national status.
A species is eligible to be listed as a
A species is eligible to be listed as a
A species is eligible to be listed as an
(a) it is facing a very high risk of extinction in New South Wales in the near future, as determined in accordance with criteria prescribed by the regulations, and
(b) it is not eligible to be listed as a critically endangered species.
A species is eligible to be listed as a
(a) it is facing a high risk of extinction in New South Wales in the medium-term future, as determined in accordance with criteria prescribed by the regulations, and
(b) it is not eligible to be listed as an endangered or critically endangered species.
A population is eligible to be listed as an
A population is not eligible to be listed as an endangered population if it is a population of a species already listed in Schedule 1 or 1A.
An ecological community is eligible to be listed as a
An ecological community is eligible to be listed as an
(a) it is facing a very high risk of extinction in New South Wales in the near future, as determined in accordance with criteria prescribed by the regulations, and
(b) it is not eligible to be listed as a critically endangered ecological community.
An ecological community is eligible to be listed as a
(a) it is facing a high risk of extinction in New South Wales in the medium-term future, as determined in accordance with criteria prescribed by the regulations, and
(b) it is not eligible to be listed as an endangered or critically endangered ecological community.
A threatening process is eligible to be listed as a
(a) it adversely affects threatened species, populations or ecological communities, or
(b) it could cause species, populations or ecological communities that are not threatened to become threatened.
The regulations may prescribe criteria for the determination of matters under this section.
A regulation that prescribes criteria for the purposes of section 10, 11, 12 or 13 is not to be made unless the Minister certifies in writing that:
(a) the criteria are based on scientific principles only, and
(b) any criteria for listing under the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth were given due consideration before the regulation was made.
(Repealed)
This Division sets out the procedure to be adopted for the purposes of inserting matter in, omitting matter from or amending matter in Schedule 1, 1A, 2 or 3.
The procedure set out in this Division does not apply to the provisional listing of endangered or critically endangered species, populations or ecological communities, on an emergency basis, by the Scientific Committee under Division 4.
A proposal that involves the alteration of the listing status of a species or ecological community (by moving the description of the species or ecological community from one Schedule to another or from one Part of a Schedule to another Part of the Schedule) may be dealt with under this Division as a composite proposal, whereby all aspects of the proposal are dealt with together.
The Scientific Committee is responsible for determining whether any species, population, ecological community or threatening process should be inserted in or omitted from Schedule 1, 1A, 2 or 3 or whether any matter in those Schedules should be amended.
(Repealed)
The Scientific Committee may make a determination for the purposes of this Division on its own initiative.
The Scientific Committee may also make a determination:
(a) following a request by the Minister or the NRC, or
(b) on a nomination, made in accordance with this Division, of any other person.
Any person may nominate any species, population or ecological community for insertion in or omission from Schedule 1, 1A or 2.
Any person may nominate any matter in Schedule 1, 1A or 2 for amendment.
Any person may nominate any threatening process for insertion in or omission from Schedule 3.
Any person may nominate any matter in Schedule 3 for amendment.
A nomination must:
(a) be made in writing addressed to the Chairperson of the Scientific Committee, and
(b) include any information prescribed by the regulations, and
(c) be made in accordance with any guidelines for the making of nominations published from time to time by the Chief Executive and the Scientific Committee.
The Scientific Committee is to give notice of a nomination to the Minister and the NRC within 14 days after the nomination is tabled at a meeting of the Committee.
If, in the opinion of the Chairperson of the Scientific Committee, a nomination of a key threatening process relates to a threatening process that is likely to have an impact on both terrestrial and aquatic environments, the Chairperson may consult with the Chairperson of the Fisheries Scientific Committee for the purpose of determining whether the nomination should also be considered by the Fisheries Scientific Committee under Part 7A of the Fisheries Management Act 1994.
If the Chairpersons agree that the nomination should also be considered by the Fisheries Scientific Committee under Part 7A of the Fisheries Management Act 1994, the nomination is to be referred to the Fisheries Scientific Committee for consideration.
In such a case:
(a) the nomination is taken to also be a nomination for amendment of Schedule 6 to that Act, made to the Fisheries Scientific Committee in accordance with Part 7A of that Act on the date the Chairpersons agree that it should also be considered by the Fisheries Scientific Committee under Part 7A of the Fisheries Management Act 1994, and
(b) Part 7A of that Act applies in relation to the nomination (in addition to this Division).
For the purposes of this section, a
(a) the nomination of any matter to be inserted in or omitted from Schedule 3, or
(b) the nomination of any matter in Schedule 3 for amendment.
There is a reciprocal process in Part 7A of the Fisheries Management Act 1994 for the referral of nominations made under that Part to the Scientific Committee in appropriate cases.
The Scientific Committee may request a person who makes a nomination to provide additional information about the subject matter of the nomination within a specified period.
The Scientific Committee is to determine priorities for its consideration of nominations every 12 months and in determining those priorities is to have regard to:
(a) the degree of threat, immediacy of threat, taxonomic distinctiveness and such other matters as the Scientific Committee considers relevant, and
(b) any advice or recommendations of the Minister or the NRC concerning those priorities.
The NRC and the Minister may give advice or make recommendations to the Scientific Committee concerning priorities for the consideration of nominations by the Scientific Committee, and in giving that advice or making those recommendations the NRC and the Minister may consider State-wide issues of concern in biodiversity conservation.
The Scientific Committee may consider different nominations about the same subject together.
The Scientific Committee may reject a nomination if:
(a) the subject of the nomination has already been dealt with, or
(b) the nomination is vexatious, or
(c) the nomination is not accompanied by the information prescribed by the regulations, or
(d) any additional information requested by the Scientific Committee is not provided within the period specified for its provision, or
(e) any additional information provided is inadequate and does not satisfy the Scientific Committee’s request.
If the Scientific Committee rejects a nomination, it is to notify the Minister, the NRC, the Chief Executive and the person who made the nomination and is to give reasons for the rejection.
A person must not deliberately and wilfully make a vexatious nomination of any species, population or ecological community for insertion in or omission from Schedule 1, 1A or 2.
Maximum penalty: 20 penalty units.
The Scientific Committee, after considering a proposal raised on its own initiative or in response to a request from the Minister or a nomination by another person, must make a preliminary determination as to whether the proposal should be supported or not supported.
As soon as possible after making a preliminary determination, the Scientific Committee must:
(a) in a case involving a nomination, notify the person who made the nomination, the Minister and the Chief Executive, and
(b) in a case of a proposal raised on its own initiative or in response to a request from the Minister, notify the Minister and the Chief Executive, and
(c) publish notice of its preliminary determination in a newspaper circulating generally throughout the State and, if the determination is likely to affect a particular area or areas (other than the State as a whole), in a newspaper circulating generally in that area or areas, and
(d) publish notice of the making of the preliminary determination in the Gazette.
The notice must:
(a) state that the preliminary determination has been prepared, and
(b) specify the manner in which members of the public may obtain a copy of the determination and the reasons for it, and
(c) invite persons to make written submissions to the Scientific Committee about the determination, and
(d) specify the address of the place to which submissions about the determination may be forwarded and the date by which submissions must be made.
The notice must specify the date by which and the address of the place to which any person may forward written submissions to the Scientific Committee about a preliminary determination.
The Scientific Committee must consider all written submissions received by it on or before the date specified in the notice, being a date occurring not less than 30 days and not more than 150 days after the date on which the notice was first published under this section.
Copies of a preliminary determination and the reasons for it are to be made available to members of the public (free of charge) as follows:
(a) by publication on the internet site of the National Parks and Wildlife Service,
(b) in response to a request made by contacting an office of the National Parks and Wildlife Service in a manner specified in the notice of the determination,
(c) in response to a request made in person at an office of the National Parks and Wildlife Service at an address specified in the notice of the determination.
The reasons for a preliminary determination are to include reference to such of the criteria prescribed by the regulations under sections 10–13 as may be relevant to the determination.
The Scientific Committee must either accept or reject a proposal for inclusion, or amendment, of matter in or omission of matter from Schedule 1, 1A, 2 or 3 and must give reasons for its decision.
The reasons for a determination are to include reference to such of the criteria prescribed by the regulations under sections 10–13 as may be relevant to the determination.
In a case involving a nomination, the Scientific Committee must make a final determination within 6 months after the closing date for making submissions to the Scientific Committee about its preliminary determination on the matter (as specified in the notice under section 22).
Before making a final determination the Scientific Committee must give the Minister notice in writing of the proposed final determination and the reasons for it. The Minister then has 2 months to decide whether to refer the proposed final determination back to the Scientific Committee for further consideration under section 23A.
The Scientific Committee is not to proceed to make the proposed final determination unless:
(a) the Minister has notified the Scientific Committee that the Minister has decided not to refer the proposed determination back to the Scientific Committee for further consideration, or
(b) the Minister has not referred the proposed final determination back to the Scientific Committee for further consideration under section 23A within 2 months after the Minister was given notice of the proposed final determination, or
(c) if the Minister has referred the proposed final determination back to the Scientific Committee for further consideration under section 23A within that 2 months, the Scientific Committee has decided to proceed with the final determination following that further consideration.
The Minister may at the request of the Scientific Committee extend and further extend the period of 6 months under subsection (2), to a maximum period of 2 years.
Failure to make a final determination within the period required by this section or to give notice to the Minister of a proposed final determination within the period required by this section does not affect the validity of the determination.
Within 2 months after receiving notice from the Scientific Committee of a proposed final determination, the Minister may:
(a) notify the Scientific Committee that the Minister has decided not to refer the proposed determination back to the Scientific Committee for further consideration, or
(b) refer the proposed final determination back to the Scientific Committee for further consideration.
The Minister may only refer a matter back to the Scientific Committee for reasons of a scientific nature provided to the Scientific Committee. In the case of a nomination, the Scientific Committee is to notify the person who made the nomination that the matter has been referred back to the Scientific Committee and of the Minister’s reasons for doing so.
If a proposed final determination is referred back to the Scientific Committee for further consideration:
(a) the Scientific Committee may, after further considering it, decide to proceed with the final determination, to change the final determination or not to proceed with the final determination, and
(b) the Scientific Committee is to make that decision within 3 months, and
(c) the Minister cannot refer the matter back to the Scientific Committee again after it has made that decision.
Failure to make a decision within the period required by this section does not affect the validity of the decision.
On making a final determination, the Scientific Committee must, as soon as practicable:
(a) in a case involving a nomination, notify the person who made the nomination of the determination, and
(b) notify the Minister, the NRC and the Chief Executive of the determination, and
(c) publish notice of the determination in a newspaper circulating generally throughout the State and, if the determination is likely to affect a particular area or areas (other than the State as a whole), in a newspaper circulating generally in that area or areas, and
(d) publish notice of the making of the determination in the Gazette.
The notice must specify the manner in which members of the public may obtain a copy of the determination and the reasons for it.
The reasons for a final determination are to include reference to such of the criteria prescribed by the regulations under sections 10–13 as may be relevant to the determination.
Copies of the final determination and the reasons for it are to be made available to members of the public (free of charge) as follows:
(a) by publication on the internet site of the Office,
(b) in response to a request made by contacting an office of the National Parks and Wildlife Service in a manner specified in the notice of the determination,
(c) in response to a request made in person at an office of the National Parks and Wildlife Service at an address specified in the notice of the determination.
The validity of a final determination cannot be questioned in any legal proceedings except those commenced in a court by any person within 6 months of the date of publication in the Gazette of notice of the making of the final determination.
On the publication of a final determination in the Gazette that:
(a) a species, population, ecological community or threatening process be inserted in Schedule 1, 1A, 2 or 3—the relevant Schedule is amended by inserting the species, population, ecological community or threatening process, or
(b) a species, population, ecological community or threatening process be omitted from Schedule 1, 1A, 2 or 3—the relevant Schedule is amended by omitting the species, population, ecological community or threatening process, or
(c) a species, population, ecological community or threatening process listed in Schedule 1, 1A, 2 or 3 be amended—the relevant Schedule is amended by omitting the species, population, ecological community or threatening process that is set out in the Schedule and by inserting instead a description of the species, population, ecological community or threatening process in the manner required by the determination.
The Scientific Committee must keep the lists in Schedules 1, 1A, 2 and 3 under review and must, at least every 2 years, determine whether any changes to the lists are necessary.
The NRC or the Minister may give advice or make recommendations to the Scientific Committee concerning priorities for the review of the lists in Schedules 1, 1A, 2 and 3 under this section, and the Scientific Committee is to have regard to any such advice or recommendations.
The NRC or the Minister may give directions to the Scientific Committee requiring the Scientific Committee to undertake investigations for the purpose of identifying species, populations and communities that are potentially threatened species, populations and communities.
This Division sets out the procedure to be adopted for the purposes of enabling matter to be provisionally listed in Schedule 1 or 1A on an emergency basis.
Only species that are likely to be endangered or critically endangered may be provisionally listed.
The Scientific Committee is responsible for determining whether any species should be provisionally listed in Schedule 1 or 1A as an endangered or critically endangered species on an emergency basis.
A species is eligible to be provisionally listed in Schedule 1 or 1A as an endangered or critically endangered species if, in the opinion of the Scientific Committee:
(a) the species:
(i) although not previously known to have existed in New South Wales, is believed on current knowledge to be indigenous to New South Wales, or
(ii) was presumed to be extinct in New South Wales but has been rediscovered, and
(b) the species is not listed in Part 1 of Schedule 1 or 1A.
The Scientific Committee may make a determination for the purposes of this Division on its own initiative.
The Scientific Committee may also make a determination:
(a) following a request by the Minister, or
(b) on a nomination, made in accordance with this Division, of any other person.
Any person may nominate any species for provisional listing in Schedule 1 or 1A.
A nomination must be in writing addressed to the Chairperson of the Scientific Committee and must include any information prescribed by the regulations.
The Scientific Committee may request a person who makes a nomination for provisional listing to provide additional information about the subject matter of the nomination within a specified period.
The Scientific Committee is to consider each nomination as soon as practicable after it is made or, if additional information has been requested, after that information has been provided or the period specified for its provision has expired.
In any event, the Scientific Committee must make a determination about a nomination within 6 months after it is made or, if additional information has been requested, after that information has been provided or the period specified for its provision has expired.
The Scientific Committee may consider different nominations about the same subject together.
The Scientific Committee may reject a nomination if:
(a) the subject of the nomination has already been dealt with, or
(b) the nomination is vexatious, or
(c) the nomination is not accompanied by the information prescribed by the regulations, or
(d) any additional information requested by the Scientific Committee is not provided within the period specified for its provision, or
(e) any additional information provided is inadequate and does not satisfy the Scientific Committee’s request.
If the Scientific Committee rejects a nomination, it is to notify the Minister, the Chief Executive and the person who made the nomination and is to give reasons for the rejection.
On making a determination for provisional listing, the Scientific Committee must, as soon as practicable:
(a) in a case involving a nomination, notify the person who made the nomination of the determination, and
(b) notify the Minister and the Chief Executive of the determination, and
(c) publish notice of the determination in a newspaper circulating generally throughout the State and, if the determination is likely to affect a particular area or areas (other than the State as a whole), in a newspaper circulating generally in that area or areas, and
(d) publish notice of the making of the determination in the Gazette.
The notice must specify the manner in which members of the public may obtain a copy of the determination and the reasons for it.
Copies of the determination and the reasons for it are to be made available to members of the public (free of charge) as follows:
(a) by publication on the internet site of the National Parks and Wildlife Service,
(b) in response to a request made by contacting an office of the National Parks and Wildlife Service in a manner specified in the notice of the determination,
(c) in response to a request made in person at an office of the National Parks and Wildlife Service at an address specified in the notice of the determination.
On the publication of the determination that a species be provisionally listed in Schedule 1 or 1A, Schedule 1 or 1A is taken for all purposes to have been amended by the insertion of the description of the species that is the subject of the determination until such time as the provisional listing ceases to have effect in accordance with this Division.
As soon as practicable after the publication of a determination under this Division, the Scientific Committee must review the status of a provisionally listed species to determine whether or not the species should be listed as a threatened species.
The requirements of sections 22–25 apply to the review of a provisional listing.
The provisional listing of a species in Schedule 1 or 1A ceases to have effect:
(a) if the Scientific Committee makes a final determination in accordance with Division 3 that the species should be listed in Schedule 1, 1A or 2—when that determination is published in the Gazette, or
(b) if the Scientific Committee makes a final determination in accordance with Division 3 that the species should not be listed in Schedule 1, 1A or 2—when the Scientific Committee publishes a notice to that effect in the Gazette, or
(c) within 12 months after the provisional listing,
whichever first occurs.
The Scientific Committee may determine to amend the description of any species, population, ecological community or threatening process in Schedule 1, 1A, 2 or 3, or to omit the description of any species or population from, or insert a description of any species or population into, Schedule 1, 1A, 2 or 3, without following the procedure set out in Division 3 or 4, if, in the opinion of the Scientific Committee, the amendment, omission or insertion is necessary or desirable for any of the following purposes:
(a) to reflect any change in the name of a species described in Schedule 1, 1A, 2 or 3, or a reclassification of any such species into further species, as a result of taxonomic revision,
(b) to correct any minor error or omission,
(c) to clarify a description of an ecological community (including to reflect new surveys or research information).
A determination under this Division must not alter the listing status of a particular species or ecological community by:
(a) moving the description of the species or ecological community from one Schedule to the Act to another Schedule, or
(b) moving the description of a species from Part 1 of Schedule 1 or 1A to Part 4 of Schedule 1 (or vice versa).
A determination under this Division must not alter the particular area of any ecological community.
The procedures for inserting matters in Schedule 1, 1A, 2 or 3 set out in Divisions 3 and 4 do not apply to a determination made under this Division.
On making a determination under this Division, the Scientific Committee must, as soon as practicable:
(a) notify the Minister and the Chief Executive of the determination, and
(b), (c) (Repealed)
(d) publish notice of the making of the determination in the Gazette.
The notice must specify the manner in which members of the public may obtain a copy of the determination and the reasons for it.
Copies of the determination and the reasons for it are to be made available to members of the public (free of charge) as follows:
(a) by publication on the internet site of the National Parks and Wildlife Service,
(b) in response to a request made by contacting an office of the National Parks and Wildlife Service in a manner specified in the notice of the determination,
(c) in response to a request made in person at an office of the National Parks and Wildlife Service at an address specified in the notice of the determination.
(Repealed)
On the publication of a determination in the Gazette that the description of a species, population, ecological community or threatening process listed in Schedule 1, 1A, 2 or 3 be amended or that a description of a species or population be omitted from or inserted into Schedule 1, 1A, 2 or 3 under this Division, the relevant Schedule is amended:
(a) in the case of the amendment of a description—by omitting the description from the Schedule concerned and by inserting instead a description in the manner required by the determination, and
(b) in the case of the omission or insertion of a description—by omitting the description from, or inserting the description into, the Schedule concerned.
This Part makes the Chief Executive responsible for identifying (where this is possible) habitat that is critical to the survival of endangered species, populations and ecological communities, or critically endangered species and ecological communities (that is, those species, populations and ecological communities listed for the time being in Schedule 1 or 1A) and for recommending to the Minister that the habitat so identified be declared critical habitat. The Chief Executive must consult with the Scientific Committee before preparing a recommendation and must have regard to any advice given by the Scientific Committee concerning identification of critical habitat.
Division 1 describes the process by which critical habitat is identified by the Chief Executive and declared by the Minister and makes provision for public participation in that process.
Division 2 deals with the preparation, publication and other dissemination of maps of critical habitat, and the maintenance of a register of critical habitat by the Chief Executive.
An offence relating to the damaging of critical habitat is contained in the National Parks and Wildlife Act 1974. That Act also makes it an offence for a person to damage the habitat of a threatened species, population or ecological community.
The whole or any part or parts of the area or areas of land comprising the habitat of an endangered species, population or ecological community or critically endangered species or ecological community that is critical to the survival of the species, population or ecological community is eligible to be declared under this Part to be the critical habitat of the species, population or ecological community.
The regulations may provide that a specified habitat, or habitat of a specified kind, may, or may not, be declared to be critical habitat for the purposes of this Part.
The Chief Executive is responsible for identifying (where this is possible) the area or areas of land comprising the critical habitat of each endangered species, population and ecological community or critically endangered species or ecological community.
The Chief Executive must:
(a) consult with the Scientific Committee before preparing a recommendation for the identification of an area or areas of land comprising critical habitat for the purposes of this Act, and
(b) have regard to its advice in preparing any recommendation for that purpose.
After considering the Scientific Committee’s advice, the Chief Executive must, if the Chief Executive considers that it is possible to identify the critical habitat of an endangered species, population or ecological community or critically endangered species or ecological community, prepare a recommendation for identification of the area or areas of land comprising the critical habitat of that species, population or ecological community.
In so doing, the Chief Executive must consider the likely social and economic consequences of the making of the recommendation in the manner proposed.
After preparing a recommendation for identification of the area or areas of land comprising the critical habitat of an endangered species, population or ecological community or critically endangered species or ecological community, the Chief Executive must:
(a) give a copy of it to the Scientific Committee, and
(b) give notice of the recommendation to all persons known by the Chief Executive, following the making of reasonable searches and inquiries, to be affected by the recommendation, being:
(i) landholders (including public authorities who are landholders), and
(ii) other public authorities known to the Chief Executive to exercise relevant functions in relation to the land, and
(iii) if the land is subject to a mortgage, charge or positive covenant—the mortgagee, chargee or person entitled to the benefit of the covenant, and
(iv) holders of leases and other interests granted by the Crown, and
(c) publish notice of the recommendation in a newspaper circulating generally throughout the State and, if the recommendation is likely to affect a particular area or areas (other than the State as a whole), in a newspaper circulating generally in that area or areas, and
(d) publish notice of the recommendation in the Gazette.
The notice must:
(a) state that the recommendation has been prepared, and
(b) specify the address of the place at which copies of the recommendation may be inspected, and
(c) invite persons to make written submissions to the Chief Executive about the recommendation, and
(d) specify the address of the place to which submissions about the recommendation may be forwarded and the date by which submissions must be made.
The Chief Executive must consider all written submissions received by the Chief Executive on or before the date specified in the notice.
The Chief Executive may amend the recommendation to take account of any of those submissions or any advice given by the Scientific Committee.
After considering the submissions and making amendments (if any) to the recommendation, the Chief Executive:
(a) must forward the recommendation, identifying the area or areas of land comprising the critical habitat of the endangered species, population or ecological community or critically endangered species or ecological community concerned, to the Minister, and
(b) must also provide the Minister with a summary of any advice given by the Scientific Committee concerning the matter and of all submissions received about the recommendation, and details of any amendments made to the recommendation by the Chief Executive to take account of that advice or those submissions.
On receiving a recommendation from the Chief Executive, the Minister must consider the recommendation and have regard to the following:
(a) the likely social and economic consequences of a declaration of critical habitat in the manner indicated in the recommendation,
(b) without limiting paragraph (a), the likely consequences of a declaration of critical habitat in the manner indicated in the recommendation for landholders of, or other persons having an interest in, or on lawful uses of, the land,
(c) the advice of the Scientific Committee concerning the matter,
(d) any submissions made about the recommendation and, in particular, any submissions received from public authorities exercising relevant functions in relation to the land.
In so doing, the Minister must also consider whether, consistent with the principles of ecologically sustainable development, the recommendation might be amended to avoid or lessen any adverse consequences of the making of a declaration of critical habitat.
If a submission from a public authority indicates that a recommendation is likely to affect the exercise of functions by the public authority, the Minister is to consult with the responsible Minister for the public authority concerning the recommendation before making a decision about the recommendation.
If the Minister thinks that a recommendation should be amended in some respect, the Minister may request the Chief Executive to amend the recommendation.
On receiving such a request, the Chief Executive must:
(a) amend the recommendation in the manner requested by the Minister, and
(b) return the recommendation, as so amended, to the Minister.
The Minister may:
(a) approve a recommendation, without amendment or with any amendments that the Minister considers appropriate, or
(b) refuse a recommendation (on the basis of one or more of the factors referred to in section 44 (1) or otherwise), or
(c) refer it back to the Chief Executive for further consideration.
Despite the other provisions of this Division, the Minister must approve or refuse a recommendation within 6 months after the date specified in the notice referred to in section 41 (2) as the date by which submissions about the recommendation must be made.
If the Minister approves of a recommendation, with or without amendments, the Minister may, by notification published in the Gazette, declare the area or areas of land identified in the recommendation (with any appropriate amendment) and described in the notification to be the critical habitat of the endangered species, population or ecological community or critically endangered species or ecological community concerned.
Section 53 (2) applies to the publication of a map of the critical habitat.
As soon as practicable after the declaration of critical habitat by the Minister, the Chief Executive must:
(a) give notice of the declaration to all persons known by the Chief Executive, following the making of reasonable searches and inquiries, to be affected by the declaration, being:
(i) landholders (including public authorities who are landholders), and
(ii) other public authorities known by the Chief Executive to exercise relevant functions in relation to the land, in particular, the Valuer-General, and
(iii) if the land is subject to a mortgage, charge or positive covenant—the mortgagee, chargee or person entitled to the benefit of the covenant, and
(b) publish notice of the declaration in a newspaper circulating generally throughout the State and, if the declaration is likely to affect a particular area or areas (other than the State as a whole), in a newspaper circulating generally in that area or areas, and
(c) publish notice of the declaration in the Gazette.
The Minister may amend or revoke a declaration of critical habitat by a further notification published in the Gazette. However, the Minister must not amend or revoke a declaration unless the Minister has obtained from, and considered, the advice of the Chief Executive.
Before providing advice about a proposed amendment or revocation, the Chief Executive must:
(a) consult the Scientific Committee concerning the proposed amendment or revocation and have regard to its advice, and
(b) give and publish notice of the proposed amendment or revocation as if it were a recommendation referred to in section 41, and consider all written submissions concerning the proposed amendment or revocation that are received on or before the date specified in the notice.
If a declaration is amended or revoked by the Minister, the Chief Executive must:
(a) give notice of the amendment or revocation to:
(i) those persons who were given notice of the making of the declaration and who retain the requisite interest in the land, and
(ii) any other person known by the Chief Executive, following the making of reasonable searches and inquiries, to have become a landholder, public authority exercising relevant functions in relation to the land, mortgagee, chargee or person entitled to the benefit of a positive covenant in the land after notice of the making of the declaration was given, and
(b) publish notice of the amendment or revocation in the Gazette.
A notice under subsection (3) must give the reasons for the amendment or revocation of the declaration.
A public authority must, on and after publication of a declaration of critical habitat, have regard to the existence of critical habitat:
(a) in relation to use of land that it owns or controls that is within or contains critical habitat, or
(b) in exercising its functions in relation to land that is within or contains critical habitat.
The regulations may prohibit or regulate, for the purposes of this Act, the carrying out of specified actions, or actions of a specified class or description, on specified critical habitat.
A declaration of critical habitat is not open to challenge because of a failure to comply with the procedural requirements of this Division after the declaration has been published in the Gazette.
Before the publication of a declaration, or an amendment of a declaration, of critical habitat, the Chief Executive must arrange for the preparation of a map that shows the location of the critical habitat proposed to be declared or amended.
A copy of the map is to be published in the Gazette on the publication of the declaration of the critical habitat.
The Chief Executive must serve a copy of a map of critical habitat on the following:
(a) the Secretary of the Department of Industry, Skills and Regional Development,
(b) the Secretary of the Department of Planning and Environment,
(c) each council within whose area the whole or part of the critical habitat is located,
(d) landholders of land on which critical habitat is located (including public authorities who are landholders),
(e) holders of leases and other interests granted by the Crown,
(f) other public authorities known by the Chief Executive to exercise relevant functions in relation to the land.
The Chief Executive must keep a register containing copies of declarations of critical habitat as in force from time to time, and maps of the critical habitat that are published in the Gazette, and must make that register available to public authorities.
The register is to be open for public inspection, without charge, during ordinary business hours, and copies of or extracts from the register are to be made available to the public on request, on payment of the fee fixed by the Chief Executive.
This Part is the first of 4 Parts that address responses to threats to the survival of threatened species, populations and ecological communities, and their habitats. This Part deals with recovery plans for threatened species, populations and ecological communities and makes further provision as to the protection of their critical habitats (if any).
The Chief Executive must prepare recovery plans for endangered species (other than species presumed extinct), populations and ecological communities, for critically endangered species and ecological communities, and for vulnerable species. The object of a recovery plan is to promote the recovery of the threatened species, population or ecological community to which it relates to a position of viability in nature. If critical habitat has been declared for the species, population or ecological community, the plan must include reference to that fact.
Division 1 deals with the preparation, contents, publication and adoption of recovery plans.
Division 2 deals with the implementation of recovery plans, and includes procedures for public authorities to report on their implementation of, or on proposed departures from, measures specified to be taken in recovery plans.
In accordance with the Planning Act, the terms of recovery plans are to be taken into account by consent authorities and determining authorities (within the meaning of that Act) when they are considering development applications under Part 4, or the carrying out, or applications for approval for the carrying out, of activities under Part 5, of that Act.
The Chief Executive may prepare a recovery plan for each endangered species (other than a species presumed extinct), population and ecological community and each critically endangered species and ecological community to promote the recovery of the species, population or ecological community to a position of viability in nature.
The Chief Executive may also prepare recovery plans for vulnerable species.
The Chief Executive may also prepare recovery plans for vulnerable ecological communities.
A recovery plan under this Act may contain provisions for more than one species, population or ecological community and may be made for part of a range of a species, population or ecological community.
(Repealed)
If the Chief Executive decides to prepare a recovery plan for a vulnerable ecological community, the recovery plan is to be prepared within 5 years after that decision is made.
The Chief Executive may, with the prior approval of the Minister and the Minister administering the Fisheries Management Act 1994, make arrangements with the Director of NSW Fisheries for the joint preparation of a recovery plan under this Act and Part 7A of the Fisheries Management Act 1994.
In such a case, any function of the Chief Executive or the Minister under this Part in respect of the plan may be exercised in conjunction with any corresponding function of the Director of NSW Fisheries or the Minister administering the Fisheries Management Act 1994 in respect of the plan under the Fisheries Management Act 1994.
For example, the Chief Executive and the Director of NSW Fisheries may jointly publish a notice of the preparation of the plan under section 61 of this Act and section 220ZO of the Fisheries Management Act 1994.
The Minister may exercise his or her functions under sections 64 and 65 of this Act in respect of any such plan only with the concurrence of the Minister administering the Fisheries Management Act 1994.
If the Minister administering this Act and the Minister administering the Fisheries Management Act 1994 are unable, following consultation, to resolve any dispute as to the exercise of any function under sections 64 and 65 of this Act in respect of any such plan, the matter is to be referred to the Premier for resolution. The decision of the Premier in relation to the matter is to be given effect to by the Ministers.
Except as otherwise provided by this section, this Part applies in respect of a recovery plan jointly prepared as provided for by this section in the same way as it applies in respect of any other recovery plan.
The Chief Executive must, in preparing a recovery plan and in deciding which measures to include in it, have regard to the following:
(a) the objects of this Act,
(b) the likely social and economic consequences of the making of the plan,
(c) the most efficient and effective use of available resources for the conservation of threatened species, populations and ecological communities,
(d) the minimising of any significant adverse social and economic consequences.
The Chief Executive is to consider, when preparing a recovery plan, any measures by which the public may co-operate in the conservation of a threatened species, population or ecological community.
The Chief Executive is also to consider, when preparing a recovery plan, any special knowledge or interest that indigenous people may have in the species, population or ecological community concerned and in the measures to be contained in the plan (including the likely social, cultural and economic consequences of the making of the plan).
Priorities in the preparation of recovery plans are to be in accordance with the priorities for recovery established by the relevant Priorities Action Statement.
A recovery plan must:
(a) identify the threatened species, population or ecological community to which it applies, and
(b) identify any critical habitat declared in relation to the threatened species, population or ecological community, and
(c) identify any threatening process or processes threatening the threatened species, population or ecological community, and
(d) identify methods by which adverse social and economic consequences of the making of the plan can be minimised, and
(e) state what must be done to ensure the recovery of the threatened species, population or ecological community, and
(f) state what must be done to protect the critical habitat (if any) identified in the plan, and
(f1) state performance indicators that are to be applied to measure whether the actions identified in the plan are being implemented and are successfully promoting the recovery of the species, population or ecological community, and
(g) state, with reference to the objects of this Act:
(i) the way in which those objects are to be implemented or promoted for the benefit of the threatened species, population or ecological community, and
(ii) the method by which progress towards achieving those objects is to be assessed, and
(h) identify the persons or public authorities who are responsible for the implementation of the measures included in the plan, and
(i) state the date by which the recovery plan should be subject to review by the Chief Executive.
The Chief Executive must, if the Chief Executive considers that a public authority should be responsible for the implementation of a measure to be included in a recovery plan, consult with the chief executive officer of the public authority before completing the preparation of the draft recovery plan.
A measure must not be included in a recovery plan for implementation by a public authority unless the chief executive officer of the public authority approves of the inclusion of the measure.
As soon as practicable after preparing a draft recovery plan, the Chief Executive must:
(a) give a copy of the draft recovery plan to the Scientific Committee, and
(b) give notice of the preparation of the draft recovery plan to any public authority that the Chief Executive knows is likely to be affected by the recovery plan, and
(c) publish notice of the preparation of the draft recovery plan in a newspaper circulating generally throughout the State and, if the recovery plan is likely to affect a particular area or areas (other than the State as a whole), in a newspaper circulating generally in that area or areas, and
(d) publish notice of the preparation of the draft recovery plan in the Gazette.
The notice must:
(a) state that the draft recovery plan has been prepared, and
(b) specify the address of the place at which copies of the draft recovery plan may be inspected, and
(c) invite persons to make written submissions to the Chief Executive about the draft recovery plan, and
(d) specify the address of the place to which submissions about the draft recovery plan may be forwarded and the date by which submissions must be made.
The Chief Executive must consider all written submissions received by the Chief Executive on or before the date specified in the notice.
The Chief Executive may amend the draft recovery plan to take account of those submissions or any advice given by the Scientific Committee.
After considering the submissions and making amendments (if any) to the draft recovery plan, the Chief Executive must:
(a) forward the draft recovery plan to the Minister, and
(b) provide the Minister with a summary of any advice given by the Scientific Committee and of all submissions received about the draft recovery plan, and details of any amendments made to the draft recovery plan by the Chief Executive to take account of that advice or those submissions.
If the Minister thinks that a draft recovery plan should be amended in some respect, the Minister may request the Chief Executive to amend the plan.
On receiving such a request, the Chief Executive must:
(a) amend the proposal in the manner requested by the Minister, and
(b) return the plan, as so amended, to the Minister.
In considering whether to approve or to refuse to approve a draft recovery plan, the Minister must have regard to the likely social and economic consequences of the approval of the plan.
The Minister may:
(a) approve a draft recovery plan without amendment or with any amendments that the Minister considers appropriate, or
(b) refuse to approve the plan (on the basis of the likely social or economic consequences of the plan or otherwise), or
(c) refer it back to the Chief Executive for further consideration.
Without limiting subsection (2), the Minister may refuse to approve a plan or refer it back to the Chief Executive for further consideration on the basis that the plan does not comply with the requirements of this Act.
If a recovery plan approved by the Minister is not in the form of the draft recovery plan submitted to the Minister by the Chief Executive, the recovery plan approved must state the reasons for any departures from the draft plan.
The recovery plan approved by the Minister must include a summary of any advice given by the Scientific Committee with respect to the plan, details of any amendments made to the plan to take account of that advice and a statement of the reasons for any departure from that advice.
As soon as practicable after the Minister approves a draft recovery plan, the Chief Executive must:
(a) give a copy of the recovery plan to the Scientific Committee, and
(b) publish notice of the approval of the plan in a newspaper circulating generally throughout the State and, if the recovery plan is likely to affect a particular area or areas (other than the State as a whole), in a newspaper circulating generally in that area or areas, and
(c) notify any public authority likely to be affected by the plan, and
(d) publish notice of the approval of the plan in the Gazette.
The Chief Executive must also make a copy of the recovery plan available for public inspection, without charge, during business hours and copies of or extracts from the recovery plan are to be made available to the public on request, on payment of the fee fixed by the Chief Executive.
The Chief Executive is required to keep each recovery plan under review and, if a date by which a plan is to be reviewed is stated in it, is to review the plan by that date.
The Chief Executive is also to consider any submissions about recovery plans received from public authorities or the public.
If the Chief Executive considers that any change (other than a minor change) should be made to a recovery plan, the Chief Executive is to prepare a new plan in accordance with this Part.
Ministers and public authorities (including the Chief Executive) are to take any appropriate action available to them to implement those measures included in a recovery plan for which they are responsible and must not make decisions that are inconsistent with the provisions of a recovery plan.
If the implementation of a recovery plan affects a statutory discretion of a Minister or public authority, this section does not operate to exclude the discretion, but the Minister or authority must take the recovery plan into account.
This section does not operate to require or authorise any action by a Minister or public authority that is inconsistent with any statutory or other legal obligation of the Minister or public authority.
A public authority (including the Chief Executive but not including a council) identified in a recovery plan as responsible for the implementation of measures included in the plan must report on action taken by it to implement those measures in its annual report to Parliament.
A council identified in a recovery plan as responsible for the implementation of measures included in the plan must report on action taken by it to implement those measures in its annual report as to the state of the environment of its area.
A public authority must not exercise a function in a manner that is inconsistent with the implementation of measures included in a recovery plan unless:
(a) in the case of a public authority other than the Chief Executive—it has given written notice of the proposed exercise of the function to the Chief Executive, or
(b) in the case of the Chief Executive—the Chief Executive has given written notice of the proposed exercise of the function to the Minister.
The Chief Executive must comply with any directions given by the Minister concerning a proposed departure from a recovery plan.
This section does not apply in relation to anything authorised to be done by or under the State Emergency and Rescue Management Act 1989 that is reasonably necessary in order to avoid a threat to life or property.
This section does not apply in relation to any thing authorised to be done by or under the Rural Fires Act 1997 in relation to any emergency fire fighting act within the meaning of that Act.
The Chief Executive must, on receiving notice of a proposed departure from a recovery plan from a public authority, determine whether exercise of the function in the manner proposed is acceptable or whether it is likely to jeopardise the effective implementation of the plan.
If the Chief Executive considers that the departure is acceptable, the Chief Executive must notify the public authority accordingly.
If the Chief Executive considers that the departure is unacceptable because it is likely to jeopardise the effective implementation of the recovery plan, the Chief Executive must consult with the public authority in an endeavour to resolve the matter by modification of the action proposed or by other mutually acceptable means.
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Blue Mountains Swamps in the Sydney Basin Bioregion (as described in the determination of the Scientific Committee under Division 5 of Part 2) |
Castlereagh Scribbly Gum Woodland in the Sydney Basin Bioregion (as described in the final determination of the Scientific Committee to list the ecological community) |
Hunter Valley Footslopes Slaty Gum Woodland in the Sydney Basin Bioregion (as described in the final determination of the Scientific Committee to list the ecological community) |
Lower Hunter Valley Dry Rainforest in the Sydney Basin and NSW North Coast Bioregions (as described in the determination of the Scientific Committee under Division 5 of Part 2) |
(Section 8)
Aggressive exclusion of birds from woodland and forest habitat by abundant Noisy Miners,
Alteration of habitat following subsidence due to longwall mining
Alteration to the natural flow regimes of rivers and streams and their floodplains and wetlands (as described in the final determination of the Scientific Committee to list the threatening process)
Anthropogenic Climate Change
Bushrock removal (as described in the final determination of the Scientific Committee to list the threatening process)
Clearing of native vegetation (as defined and described in the final determination of the Scientific Committee to list the key threatening process)
Competition and grazing by the feral European Rabbit,
Competition and habitat degradation by Feral Goats,
Competition from feral honey bees,
Death or injury to marine species following capture in shark control programs on ocean beaches (as described in the final determination of the Scientific Committee to list the key threatening process)
Entanglement in or ingestion of anthropogenic debris in marine and estuarine environments (as described in the final determination of the Scientific Committee to list the key threatening process)
Forest eucalypt dieback associated with over-abundant psyllids and Bell Miners
Herbivory and environmental degradation caused by feral deer
High frequency fire resulting in the disruption of life cycle processes in plants and animals and loss of vegetation structure and composition
Importation of Red Imported Fire Ants
Infection by Psittacine Circoviral (beak and feather) Disease affecting endangered psittacine species and populations
Infection of frogs by amphibian chytrid causing the disease chytridiomycosis
Infection of native plants by
Introduction and establishment of Exotic Rust Fungi of the order Pucciniales pathogenic on plants of the family Myrtaceae
Introduction of the Large Earth Bumblebee
Invasion and establishment of exotic vines and scramblers
Invasion and establishment of Scotch Broom (
Invasion and establishment of the Cane Toad (
Invasion, establishment and spread of Lantana (
Invasion of native plant communities by African Olive
Invasion of native plant communities by
Invasion of native plant communities by exotic perennial grasses
Invasion of the Yellow Crazy Ant,
Loss and degradation of native plant and animal habitat by invasion of escaped garden plants, including aquatic plants
Loss of hollow-bearing trees
Loss or degradation (or both) of sites used for hill-topping by butterflies
Predation and hybridisation by Feral Dogs,
Predation by
Predation by the European Red Fox
Predation by the Feral Cat
Predation by the Ship Rat
Predation, habitat degradation, competition and disease transmission by Feral Pigs,
Removal of dead wood and dead trees
(Repealed)
(Section 156)
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of:
• this Act
• Threatened Species Conservation Amendment Act 2002
• Threatened Species Legislation Amendment Act 2004, to the extent that it amends this Act
• Threatened Species Conservation Amendment (Biodiversity Banking) Act 2006
• Threatened Species Conservation Amendment (Special Provisions) Act 2008, to the extent that it amends this Act
• National Parks and Wildlife Amendment Act 2010, to the extent that it amends this Act
• Threatened Species Conservation Amendment (Biodiversity Certification) Act 2010
• Environmental Planning and Assessment Amendment Act 2012
Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done before the date of its publication.
The Scientific Committee established under section 92A of the National Parks and Wildlife Act 1974, as inserted by the Endangered Fauna (Interim Protection) Act 1991, is dissolved.
A person who, immediately before the dissolution of the Scientific Committee referred to in this clause, held office as a member of that Scientific Committee:
(a) ceases to hold that office, and
(b) is eligible (if otherwise qualified) to be appointed as a member of the Scientific Committee established under this Act.
A person who so ceases to hold office as a member of the Scientific Committee is not entitled to any remuneration or compensation because of the loss of that office.
This clause applies to a licence to which section 4 of the Endangered Fauna (Interim Protection) Amendment Act 1992 applied immediately before the repeal or expiry of that section.
A licence to which this clause applies continues in force, despite any expiry date specified in the licence, as if no such date had been so specified.
A licence to which this clause applies may be varied under section 133 of the National Parks and Wildlife Act 1974.
A licence to which clause 3 refers is taken to be a licence under Part 6 of this Act and is as efficacious, in relation to the action that it authorises, as a licence granted under that Part.
In particular, a licence to which clause 3 refers is, in relation to the action that it authorises, taken to authorise the harming or picking of threatened species, populations or ecological communities, or the damaging of their habitats (including habitats that are critical habitats).
The amendments made by this Act to the Environmental Planning and Assessment Act 1979 do not affect:
(a) any development consent granted before the commencement of this clause or any development carried out in accordance with such a consent, or
(b) any activity to which Part 5 of that Act applies (or any approval for the carrying out of any such activity) if the provisions of that Part were complied with for that activity before the commencement of this clause.
If an application for development consent has not been finally determined on the commencement of this clause, the amendments made by this Act to the Environmental Planning and Assessment Act 1979 do not apply to the determination of the application or to any development carried out in accordance with a development consent granted on the determination of the application. However, the Minister for Planning may, by notice served on the consent authority, direct that all or any specified amendments apply to the determination of the application.
If, in respect of any activity to which Part 5 of that Act applies (or any approval for carrying out any such activity):
(a) an environmental impact statement was duly obtained before the commencement of this clause, but the provisions of that Part had not been fully complied with before that commencement, or
(b) the Director-General of the Department of Planning had duly notified the person preparing an environmental impact statement before the commencement of this clause of requirements with respect to the form and contents of the statement, but the statement had not been obtained before that commencement,
the statement (so long as it is obtained in accordance with the provisions of that Act as in force immediately before that commencement) is taken to have been obtained in accordance with that Act, as amended by this Act.
Subclause (3) does not apply to an activity that has not been carried out before the commencement of this clause if the Minister for Planning (by notice served on the person obtaining the statement concerned) so directs.
A stop work order made under section 92E of the National Parks and Wildlife Act 1974 is, if it has any force or effect immediately before the repeal of that section, taken to be a stop work order under Part 6A of that Act, as inserted by this Act.
The amendments made to section 4 of this Act by the Fisheries Management Amendment Act 1997 do not affect any order made under that section before the commencement of those amendments with respect to regions under this Act.
Section 91, as substituted by the Threatened Species Conservation Amendment Act 2002, does not apply in respect of a licence issued under Part 6 before that substitution.
The Director-General is to ensure that the arrangements referred to in section 113 (1), as amended by the Threatened Species Conservation Amendment Act 2002, and the survey standards referred to in section 113 (3A), as inserted by that Act, are instituted or approved within 18 months after the date of assent to that Act.
Section 130 (1A), as inserted by the Threatened Species Conservation Amendment Act 2002, does not apply in respect of 2 consecutive periods of office served by a member of the Scientific Committee if any part of the 2 consecutive periods was served by the member before that subsection commenced.
In this Part:
The amendments to section 23, and new section 23A, as enacted by the 2004 amending Act extend to a matter pending under section 23 and not finally determined before the commencement of this clause.
The Director-General may exercise any function of the Director-General under Part 5A prior to the commencement of that Part, for the purpose of facilitating the adoption of a Threatened Species Priorities Action Statement on the commencement of that Part.
The members of the Biological Diversity Advisory Council holding office immediately before the repeal of sections 137–139 cease to hold office as members of the Advisory Council on that repeal (but are eligible, if otherwise qualified, for re-appointment as members of BDAC.
Anything done or omitted to be done under a provision of this Act renumbered by the Threatened Species Conservation Amendment (Biodiversity Banking) Act 2006 is taken to have been done or omitted to be done under the corresponding provision of this Act as so renumbered.
Any person accredited under section 126O to undertake and prepare surveys and assessments as referred to in section 126O (1) (a) or (b), as in force immediately before its repeal by the Threatened Species Conservation Amendment (Biodiversity Banking) Act 2006, is taken to have been accredited to undertake and prepare surveys and assessments as referred to in section 142B (1) (a) or (b) (as the case requires).
Any standards approved by the Director-General under section 126O by order published in the Gazette and in force immediately before the repeal of that section are taken to have been approved under section 142B.
In this Part:
The Minister may by order published in the Gazette amend the relevant biodiversity measures for the purposes of this Part following a review under clause 18 (4) of biodiversity certification conferred by this Part.
The Minister may by order published in the Gazette replace a map referred to in the definition of
Biodiversity certification is conferred, by the enactment of this Part, on the Growth Centres EPIs.
The biodiversity certification conferred by this Part applies:
(a) only to the subject land, and
(b) to all development and activities that may be carried out under the Growth Centres EPIs, and
(c) to all threatened species, populations and ecological communities.
The biodiversity certification conferred by this Part is not subject to any conditions.
The Minister is to undertake periodic reviews of the biodiversity certification conferred by this Part to determine whether it should be maintained or modified.
Section 126I applies to the subject land in the same way it applies to biodiversity certified land referred to in that section.
Subclause (1) extends to things done or omitted to be done before the substitution of this clause by the Environmental Planning and Assessment Amendment Act 2012.
The biodiversity certification conferred by this Part remains in force (subject to this Part) until 30 June 2025.
Prior to the expiration of the biodiversity certification conferred by this Part, the Minister may, by order published in the Gazette, extend by a period of up to 10 years the period for which that certification remains in force, but only if the Minister has reviewed the Growth Centres EPIs to take account of any new listing of a species, population or ecological community or the discovery of a species, population or ecological community not previously known in an area.
The Minister must not extend the period of biodiversity certification of the Growth Centres EPIs unless, prior to granting the extension, the Minister:
(a) by notice published in a newspaper circulating generally throughout the State, invites persons to make written submissions to the Minister on the proposed extension, and
(b) considers any written submissions received before the closing date specified in the notice for the making of submissions (being a date that is not less than 30 days after the date the notice is first published under this subclause).
This clause does not prevent biodiversity certification of any of the subject land under Part 7AA of this Act with effect on or after the biodiversity certification conferred by this Part ceases to be in force.
The Minister may, by order published in the Gazette, suspend or revoke the biodiversity certification conferred by this Part if the Minister is of the opinion that:
(a) any relevant biodiversity measure has not been complied with, or
(b) the Growth Centres EPIs, and any other relevant biodiversity measures, fail or will fail, as a result of any proposed amendment of the Growth Centres EPIs, to make appropriate provision for the conservation of threatened species, populations and ecological communities, or
(c) the consent authority under the Growth Centres EPIs has failed to adequately comply with a direction by the Minister to review the Growth Centres EPIs in response to any new listing of a species, population or ecological community or the discovery of a species, population or ecological community not previously known in an area.
The suspension or revocation of the biodiversity certification conferred by this Part does not affect the validity of any development consent granted under Part 4 of the Environmental Planning and Assessment Act 1979, or any approval of an activity granted in accordance with Part 5 of that Act, before the suspension or revocation.
If the Minister suspends or revokes the biodiversity certification under this clause, the Minister may, in the order, determine the application of the suspension or revocation to anything pending under the Environmental Planning and Assessment Act 1979 at the time of the suspension or revocation.
Notice of the extension, suspension or revocation of the biodiversity certification conferred by this Part is to be given within 21 days:
(a) on the website of the Department, and
(b) to the Director-General of the Department of Planning, and
(c) to each local council that is the council of an area of which the subject land forms part.
The Minister is to keep a register containing copies of the notice of any extension, suspension or revocation of the biodiversity certification conferred by this Part.
The register is to be open for public inspection, without charge, during ordinary business hours, and copies of or extracts from the register are to be made available to the public on request, on payment of the fee fixed by the Minister.
The biodiversity certification conferred by this Part is taken to have had effect on and from 14 December 2007.
Anything done or omitted to be done on or after 14 December 2007, including under the Environmental Planning and Assessment Act 1979, that would have been validly done or omitted had the biodiversity certification conferred by this Part been in force at the time it was done or omitted, is taken to be validly done or omitted.
For the purposes of this clause, biodiversity certification conferred by this Part includes biodiversity certification conferred by this Part as a consequence of any amendment made to this Part after its enactment.
In this Part:
(a) an EPI on which biodiversity certification was conferred by the Minister under the former biodiversity certification arrangements before the repeal of those arrangements, or
(b) an EPI on which biodiversity certification is conferred by the Minister under the former biodiversity certification arrangements, after the repeal of those arrangements, in accordance with this Part.
In this Part, a reference to biodiversity certification conferred under the former biodiversity certification arrangements includes a reference to biodiversity certification conferred after the repeal of those arrangements in accordance with this Part.
Any biodiversity certification conferred on an EPI (including an established EPI) by the Minister under the former biodiversity certification arrangements, before the repeal of those arrangements, continues to have effect, subject to this Part.
Sections 126G, 126H and 126N, as in force under the former biodiversity certifications arrangements, continue to apply in respect of an existing biodiversity certification proposal.
Accordingly, the Minister may confer biodiversity certification on an EPI (including an established EPI) which is the subject of an existing biodiversity certification proposal under the former biodiversity certification arrangements as if those arrangements had not been repealed.
The order conferring biodiversity certification is to specify the relevant measures to be taken and any conditions of the certification.
An
This clause does not prevent the Minister from conferring biodiversity certification on land to which an existing biodiversity certification proposal relates under the new biodiversity certification arrangements.
Any development for which development consent is required under the provisions of a biodiversity certified EPI is, for the purposes of Part 4 of the Environmental Planning and Assessment Act 1979, taken to be development that is not likely to significantly affect any threatened species, population or ecological community, or its habitat.
An activity to which Part 5 of the Environmental Planning and Assessment Act 1979 applies that a biodiversity certified EPI provides can be carried out without the need for development consent is, for the purposes of that Part, taken to be an activity that is not likely to significantly affect any threatened species, population or ecological community, or its habitat.
This clause applies subject to the conditions of the biodiversity certification.
Biodiversity certification of an EPI remains in force for such period as the Minister determines and specifies in the certification. If no period is specified, biodiversity certification remains in force for 10 years.
Prior to the expiration of biodiversity certification of an EPI, the Minister may, by order published in the Gazette, extend by a period of up to 10 years the period for which that certification remains in force, but only if the Minister has reviewed the EPI to take account of any new listing of a species, population or ecological community or the discovery of a species, population or ecological community not previously known in an area.
The Minister must not extend the period of biodiversity certification of an EPI unless, prior to granting the extension, the Minister:
(a) by notice published in a newspaper circulating generally throughout the State, invites persons to make written submissions to the Minister on the proposed extension, and
(b) considers any written submissions received before the closing date specified in the notice for the making of submissions (being a date that is not less than 30 days after the date the notice is first published under this subclause).
This clause does not prevent further biodiversity certification of the land to which an EPI applies under the new biodiversity certification arrangements with effect on or after the biodiversity certification conferred under the former biodiversity certification arrangements ceases to be in force.
Failure to take any relevant measures or to comply with a condition of biodiversity certification of an EPI does not affect the validity of the certification, but is a ground for suspension or revocation of the biodiversity certification.
The Minister may, by order published in the Gazette, suspend or revoke the biodiversity certification of an EPI if the Minister is of the opinion that:
(a) any relevant measures have not been taken or conditions of the biodiversity certification have not been complied with, or
(b) the EPI, and any other relevant measures, fail or will fail, as a result of any proposed amendment of the EPI, to make appropriate provision for the conservation of threatened species, populations and ecological communities, or
(c) the consent authority under the EPI has failed to adequately comply with a direction by the Minister to review the EPI in response to any new listing of a species, population or ecological community or the discovery of a species, population or ecological community not previously known in an area.
The suspension or revocation of biodiversity certification does not affect:
(a) any development consent granted under Part 4 of the Environmental Planning and Assessment Act 1979 before the suspension or revocation, or
(b) any activity for which approval was granted, or which a determining authority started to carry out, in accordance with Part 5 of that Act before the suspension or revocation.
If the Minister suspends or revokes biodiversity certification under this clause, the Minister may, in the order, specify the application of the suspension or revocation to anything pending under the Environmental Planning and Assessment Act 1979 at the time of the suspension or revocation.
Notice of the conferral of biodiversity certification under the former biodiversity certification arrangements or of the extension, suspension or revocation of that certification is to be given within 21 days:
(a) on the website of the Department, and
(b) to the Director-General of the Department of Planning, and
(c) to each local council that is the council of an area of which land to which the EPI applies forms part.
The Minister is to keep a register containing copies of any order conferring biodiversity certification under the former biodiversity certification arrangements or extending, suspending or revoking certification.
The register is to be open for public inspection, without charge, during ordinary business hours, and copies of or extracts from the register are to be made available to the public on request, on payment of the fee fixed by the Minister.
The Minister is to undertake periodic reviews of any biodiversity certification conferred by the Minister under the former biodiversity certification arrangements.
Any arrangements made under section 142B before the repeal of the former biodiversity certification arrangements, in relation to the biodiversity certification of EPIs, continue to have effect to the extent necessary to give effect to this Part.
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