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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Threatened Species Conservation
Amendment (Biodiversity Banking)
Bill 2006
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Threatened Species Conservation Act
1995 No 101 2
4 Amendment of other Acts and legislation 2
5 Repeal of Act 2
Schedule 1 Amendment of Threatened Species Conservation
Act 1995 3
Schedule 2 Amendment of other Acts and legislation 62
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2006
New South Wales
Threatened Species Conservation
Amendment (Biodiversity Banking)
Bill 2006
Act No , 2006
An Act to amend the Threatened Species Conservation Act 1995 to establish a
biodiversity banking and offsets scheme; and to amend other Acts consequentially.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Threatened Species Conservation Amendment (Biodiversity Banking)
Clause 1 Bill 2006
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Threatened Species Conservation Amendment
(Biodiversity Banking) Act 2006.
2 Commencement
This Act commences on the date of assent.
3 Amendment of Threatened Species Conservation Act 1995 No 101
The Threatened Species Conservation Act 1995 is amended as set out in
Schedule 1.
4 Amendment of other Acts and legislation
The Acts and other legislation specified in Schedule 2 are amended as
set out in that Schedule.
5 Repeal of Act
(1) This Act is repealed on the day following the day on which all of the
provisions of this Act have commenced.
(2) The repeal of this Act does not, because of the operation of section 30
of the Interpretation Act 1987, affect any amendment made by this Act.
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Amendment of Threatened Species Conservation Act 1995 Schedule 1
Schedule 1 Amendment of Threatened Species
Conservation Act 1995
(Section 3)
[1] Section 4 Definitions
Insert in alphabetical order in section 4 (1):
biodiversity values has the meaning given by section 4A.
[2] Section 4A
Insert after section 4:
4A Biodiversity values--meaning
(1) For the purposes of this Act, biodiversity values includes the
composition, structure and function of ecosystems, and includes
(but is not limited to) threatened species, populations and
ecological communities, and their habitats.
(2) 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.
[3] Section 126H
Omit the section. Insert instead:
126H Certification can be conditional
(1) Biodiversity certification of an EPI can be subject to conditions,
including conditions that:
(a) limit the certification to specified threatened species,
populations and communities or to a specified part of the
land to which the EPI applies, or
(b) limit the certification to specified development or
activities.
(2) Unless limited by the conditions of the certification, biodiversity
certification of an EPI applies:
(a) to the whole of the land to which the EPI applies, and
(b) to all development and activities that may be carried out
under the EPI, and
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Schedule 1 Amendment of Threatened Species Conservation Act 1995
(c) to all threatened species, populations and ecological
communities.
[4] Section 126I Effect of biodiversity certification
Omit section 126I (3). Insert instead:
(3) This section applies subject to the conditions of the biodiversity
certification.
[5] Section 126O Director-General may accredit persons to prepare
threatened species assessments and surveys
Omit the section.
[6] Part 7A
Insert after Part 7:
Part 7A Biodiversity banking
Introductory note. This Part provides for the establishment of a biodiversity banking
and offsets scheme (referred to as the biobanking scheme).
The biobanking scheme has the following key elements:
(a) the establishment of biobank sites on land by means of biobanking agreements
entered into between the Minister and the owners of the lands concerned,
(b) the creation of biodiversity credits in respect of management actions carried out
or proposed to be carried out on or in respect of biobank sites that improve
biodiversity values,
(c) a system that enables those biodiversity credits, once created and registered,
to be traded (including by being purchased by developers) and used as an offset
against the impact of proposed development on biodiversity values,
(d) the establishment of a biobanking assessment methodology, by order of the
Minister published in the Gazette, for the purpose of determining both the
number of biodiversity credits that may be created in respect of management
actions or proposed management actions and the number of biodiversity credits
that must be retired in connection with a development in order to ensure that it
improves or maintains biodiversity values.
This Part provides for a procedure under which a person may apply to the
Director-General for a biobanking statement in respect of a development proposal.
If a biobanking statement is issued, it will not be necessary for the development to be
assessed in accordance with the threatened species protection measures provided for
by Parts 4 and 5 of the Environmental Planning and Assessment Act 1979. However,
the developer may be required to purchase and retire sufficient biodiversity credits to
ensure that the impact of the development on biodiversity values is offset and to take
other onsite measures to minimise any negative impact on biodiversity values.
Biobanking statements may also be issued in respect of projects proposed to be
approved under Part 3A of the Environmental Planning and Assessment Act 1979.
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Amendment of Threatened Species Conservation Act 1995 Schedule 1
Division 1 Preliminary
127 Definitions
(1) In this Part:
biobank site means land that is designated by a biobanking
agreement to be a biobank site for the purposes of this Act.
biobanking agreement means an agreement entered into under
Division 2.
biobanking assessment methodology means the rules established
under section 127B.
biobanking scheme means the biodiversity banking and offsets
scheme established under this Part.
biobanking statement means a biobanking statement issued and
in force under this Part.
Biobanking Trust Fund means the Biobanking Trust Fund
established under this Part.
Biodiversity Banking Account means the Biodiversity Banking
Account established under this Part.
biodiversity credit means a biodiversity credit created under this
Part.
consent authority has the same meaning as in the Environmental
Planning and Assessment Act 1979.
credit retirement condition has the meaning given by section
127ZN.
deferred retirement arrangement has the meaning given by
section 127ZW.
development means development within the meaning of the
Environmental Planning and Assessment Act 1979, and includes
an activity within the meaning of Part 5 of that Act.
development for which biobanking is available has the meaning
given by section 127ZJ.
Fund Manager means the person for the time being appointed
under this Part as Fund Manager in respect of the Biobanking
Trust Fund.
holder of a biodiversity credit means a person for the time being
recorded as the holder of that credit in the register of biodiversity
credits.
management action means an action or proposed action in
respect of which a biodiversity credit may be created.
mining authority means an authority, mineral claim or opal
prospecting licence under the Mining Act 1992.
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Schedule 1 Amendment of Threatened Species Conservation Act 1995
owner, in relation to land, includes:
(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, the Crown Lands Consolidation Act 1913
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, or
(b) a person who leases land under the Crown Lands Act 1989,
the Crown Lands Consolidation Act 1913 or the Western
Lands Act 1901.
petroleum title means a petroleum title under the Petroleum
(Onshore) Act 1991.
register of biobank sites means the register of biobank sites kept
by the Director-General under this Part.
register of biobanking statements means the register of
biobanking statements kept by the Director-General under this
Part.
register of biodiversity credits means the register of biodiversity
credits kept by the Director-General under this Part.
restorative action, in relation to a development or activity, means
any rehabilitation or restoration action taken on the site of a
development or activity after the development or activity has
been substantially completed.
(2) In this Part, a reference to an action, or carrying out an action,
includes a reference to doing any thing or refraining from doing
any thing.
127A Establishment of biobanking scheme
(1) There is established by this Part a biodiversity banking and
offsets scheme (the biobanking scheme).
(2) The biobanking scheme has the following key elements:
(a) the establishment of biobank sites on land by means of
biobanking agreements entered into between the Minister
and the owners of the lands concerned,
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(b) the creation of biodiversity credits in respect of
management actions carried out or proposed to be carried
out on or in respect of biobank sites that improve
biodiversity values,
(c) a system that enables those biodiversity credits, once
created and registered, to be traded (including by being
purchased by developers) and used as an offset against the
impact of proposed development on biodiversity values,
(d) the establishment of a biobanking assessment
methodology, by order of the Minister published in the
Gazette, for the purpose of determining both the number of
biodiversity credits that may be created in respect of
management actions or proposed management actions and
the number of biodiversity credits that must be retired in
connection with a development to offset the impact of the
development and ensure that it improves or maintains
biodiversity values.
(3) The biobanking scheme is not to be implemented until:
(a) a joint committee of the Legislative Assembly and the
Legislative Council has been appointed with functions that
include preparing a report that sets out suggested
guidelines for the operation of the scheme during a trial
period and examines options for applying the scheme to
the clearing of native vegetation (within the meaning of the
Native Vegetation Act 2003), and
(b) the report has been provided to both Houses of Parliament,
and
(c) the Minister has caused to be tabled in each House of
Parliament a report by the Minister setting out what the
Government has done or proposes to do in response to the
report of the joint committee.
(4) Despite subsection (3), the biobanking scheme may be
implemented if the report of the joint committee referred to in
subsection (3) (a) has not been prepared by the joint committee
and provided to both Houses of Parliament by the end of the
period of 6 months after the commencement of this Part.
(5) If a House of Parliament is not sitting when the joint committee
seeks to provide its report to that House, the joint committee may
instead present it to the Clerk of the House of Parliament
concerned.
(6) Section 63C of the Public Finance and Audit Act 1983 applies in
respect of the presentation of the report of the joint committee to
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Schedule 1 Amendment of Threatened Species Conservation Act 1995
a Clerk of a House of Parliament under this section in the same
way as it applies to the presentation of documents in accordance
with that Act.
(7) For the purposes of subsections (3) and (4), each of the following
actions constitutes implementation of the biobanking scheme:
(a) the publication of the biobanking assessment methodology
in the Gazette,
(b) the establishment of any biobank site,
(c) the issue of any biobanking statement.
127B Biobanking assessment methodology
(1) The Minister may, by order published in the Gazette, establish
rules with respect to the following:
(a) the actions or proposed actions in respect of which
biodiversity credits may be created (management
actions), being actions that will improve biodiversity
values,
(b) the creation of biodiversity credits or different classes of
biodiversity credits in respect of management actions that
have been carried out, are being carried out or are proposed
to be carried out on or in respect of biobank sites,
(c) the circumstances in which development is to be regarded
as improving or maintaining biodiversity values, including
where the impact of that development is offset against the
impact of management actions for which biodiversity
credits are created,
(d) any impact on biodiversity values that cannot be offset by
the retirement of biodiversity credits.
(2) In particular, the rules are to establish a methodology for the
following:
(a) assessing the impact or likely impact of management
actions or development on biodiversity values,
(b) determining the number and class of biodiversity credits
that can be created in respect of a management action, and
the times at which they may be created,
(c) determining the number and class of biodiversity credits
that are required to be retired in respect of development, as
an offset against the impact of the development on
biodiversity values, pursuant to the issue of a biobanking
statement.
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(3) The Minister is to have regard to the following principles when
establishing the methodology under this section:
(a) biodiversity values should be conserved across appropriate
local and regional scales,
(b) all types of ecological communities should be adequately
conserved,
(c) any areas conserved under the biobanking scheme must be
viable in the long term.
(4) A methodology provided for by the rules may include provision
for the use of specified computer programs or databases.
(5) The rules must comply with any requirements set out in the
regulations, including as to the types of actions or proposed
actions in respect of which biodiversity credits may be created.
(6) Subject to any requirements of the regulations, refraining from
doing any thing (whether or not that thing was being done
beforehand) may be treated by the rules as an action that
improves biodiversity values, if refraining from doing that thing
improves biodiversity values or the long term security of
biodiversity values. This does not limit the generality of
subsection (1) (a).
(7) The biobanking assessment methodology must include
provisions that ensure that if an environmental contribution is
required in respect of a development, the number of biodiversity
credits required to be retired in respect of the development is
reduced (or is nil) to take account of that environmental
contribution.
(8) The biobanking assessment methodology may provide for any
other matters required or authorised by this Part.
Note. See also Division 7, which allows the methodology to include
provision for deferred retirement arrangements where restorative
actions are taken in respect of a development.
(9) A biobanking agreement cannot be entered into, and a
biobanking statement cannot be issued, until the biobanking
assessment methodology is published under this section.
(10) In this section, environmental contribution means any of the
following contributions, or a part of such a contribution, if the
contribution or part is required, or is to be used or applied, for the
conservation or enhancement of the natural environment:
(a) a contribution (including a dedication of land or other
material benefit) required by a planning agreement under
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Subdivision 2 of Division 6 of Part 4 of the Environmental
Planning and Assessment Act 1979,
(b) a contribution (including a dedication of land or levy)
required under Subdivision 3 or 4 of Division 6 of Part 4
of that Act.
127C Publication, amendment and review of biobanking assessment
methodology
(1) The Director-General is to ensure that a copy of the biobanking
assessment methodology is available for public inspection:
(a) at the head office of the Department, and
(b) on the website of the Department.
(2) Copies of the biobanking assessment methodology, or of any part
of the methodology, are to be made available to the public on
request, on payment of a fee (if any) fixed by the
Director-General.
(3) Subject to any requirements of the regulations, the biobanking
assessment methodology may be amended, repealed or replaced
by further order of the Minister published in the Gazette.
(4) The regulations may:
(a) prescribe the circumstances in which the Minister is
authorised to make an order that amends, repeals or
replaces the biobanking assessment methodology,
including by requiring consultation to be carried out before
such an order is made, and
(b) require the Minister to undertake a periodic review of the
biobanking assessment methodology and provide for
consultation in respect of that review.
Division 2 Biobanking agreements
127D Biobanking agreements
(1) The Minister may enter into an agreement relating to land with
the owner of the land for the purpose of establishing a biobank
site (a biobanking agreement).
(2) Any such agreement may designate any land to which the
agreement relates to be a biobank site for the purposes of this
Part.
(3) The regulations may set out criteria for land to be designated as a
biobank site by a biobanking agreement.
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(4) Without limiting subsection (3), the regulations may exclude any
land, or land of a particular class, from being designated as a
biobank site by a biobanking agreement.
(5) Land may be designated as a single biobank site even if the land
consists of separate parcels of land and whether or not the parcels
are adjacent (but only if the land is owned by the same person or
persons).
(6) The regulations may prescribe a procedure for applying to the
Minister to enter into a biobanking agreement, including by
requiring a fee to be paid in respect of an application.
(7) The Minister must consult with the Minister administering the
Environmental Planning and Assessment Act 1979, the Minister
administering Part 2 of the Mining Act 1992 and the Minister
administering the Petroleum (Onshore) Act 1991 before entering
into any biobanking agreement.
(8) The regulations may:
(a) require the Minister, before entering into a biobanking
agreement with a person, to consider whether the person
(whether or not an individual) is a fit and proper person to
enter into, and fulfil the obligations imposed by, the
agreement, and
(b) specify the matters that may be considered by the Minister
in determining whether the person is such a fit and proper
person.
127E Content of biobanking agreements
(1) A biobanking agreement may contain any of the following terms,
binding on the owner from time to time of the land:
(a) requiring or authorising the owner to carry out specified
management actions on the land,
(b) providing for the number and class of biodiversity credits
that can be created in respect of any of those management
actions in accordance with the biobanking assessment
methodology,
(c) providing for the timing of the creation of biodiversity
credits and their release for sale,
(d) requiring the owner of the land to carry out or continue to
carry out any management action in perpetuity, unless
otherwise specified (even if a biodiversity credit has
already been created in respect of the action or has been
transferred or retired),
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(e) restricting the use of the biobank site,
(f) requiring the owner to permit access to the biobank site by
specified persons or persons of a specified class and to
allow those persons to take any specified action on the
land,
(g) providing for monitoring, reporting and audit
requirements,
(h) providing for the entitlement of the owner to payments
from the Biobanking Trust Fund,
(i) specifying the manner in which any money provided to the
owner under the agreement is to be applied by the owner,
(j) requiring the owner to repay money paid to the owner
under the agreement if a specified breach of the agreement
occurs,
(k) specifying the remedial measures that must be taken in the
event that any contingency that has a negative impact on
the biodiversity values protected by the agreement or that
prevents or disrupts the continuation of a management
action in respect of which biodiversity credits are in force
or have been retired,
(l) providing for any other matter relating to a biobank site.
(2) A biobanking agreement may contain any of the following terms,
binding on the Minister:
(a) requiring the Minister to direct that payments be made
from the Biobanking Trust Fund to the owner of the land,
(b) requiring the Minister to provide technical advice,
(c) requiring the Minister to provide other assistance,
(d) requiring the Minister to carry out specified activities or do
specified things,
(e) providing for any other matter relating to a biobank site.
(3) If the biobanking assessment methodology is amended or
replaced after a biobanking agreement is entered into, the
biobanking agreement prevails to the extent of any inconsistency
between the agreement and the provisions of the biobanking
assessment methodology as amended or replaced.
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127F General provisions relating to biobanking agreements
(1) The Minister must not enter into a biobanking agreement relating
to land unless:
(a) all the owners of the land are parties to the agreement or
have consented in writing to the agreement, and
(b) where the land (not being land referred to in subsection
(5)) is subject to a residential tenancy agreement or other
lease, the tenant or the lessee has consented in writing to
the biobanking agreement, and
(c) where the land is subject to a mortgage or charge, the
mortgagee or chargee has consented in writing to the
agreement, and
(d) where the land is subject to a covenant, the Minister has
consulted with the person entitled to the benefit of the
covenant about the terms of the agreement, and
(e) where the land is the subject of a mining lease or mineral
claim under the Mining Act 1992 or a production lease
under the Petroleum (Onshore) Act 1991, the holder of the
lease or claim has consented in writing to the agreement,
and
(f) where the land is the subject of any mining authority or
petroleum title not referred to in paragraph (e), the
Minister has consulted with the holder of the mining
authority or petroleum title about the terms of the
agreement.
Note. Subsection (1) (e) applies in respect of any mining lease under the
Mining Act 1992 that is granted over the land. This may include a mining
lease granted over the subsoil of the land or over parts of the subsoil of
the land.
(2) The Minister may enter into a biobanking agreement relating to
land that is Crown lands or lands of the Crown:
(a) with a public authority (not being a Department of the
Public Service) that owns or has the control and
management of the land, or
(b) if the land is under the control and management of a
Department of the Public Service, with the responsible
Minister.
(3) If a biobanking agreement is entered into under subsection (2) by
a public authority that, or responsible Minister who, is not the
owner of the land concerned:
(a) the agreement is taken to have been entered into on behalf
of the owner of the land, and
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(b) a reference in this Part to the owner of the land (however
expressed) includes, while a public authority has the
control and management of the land, a reference to the
public authority that has that control and management and,
if the public authority is a Department of the Public
Service, the responsible Minister.
(4) The Minister must not enter into a biobanking agreement relating
to Crown-timber lands within the meaning of the Forestry Act
1916 except with the consent of the Minister administering that
Act.
(5) The Minister must not enter into a biobanking agreement for
Crown land (within the meaning of the Crown Lands Act 1989),
except with the consent of the Minister administering that Act.
(6) In this section, a reference to a person entitled to the benefit of a
covenant includes, in the case of a covenant imposed under
section 88D or 88E of the Conveyancing Act 1919, a reference to
a prescribed authority (within the meaning of those sections) or a
person entitled to exercise, on behalf of the Crown, the functions
of a prescribed authority under those sections.
127G Duration of agreements
(1) A biobanking agreement has effect from a day, or on the
happening of an event, specified in the agreement.
(2) A biobanking agreement has effect in perpetuity, unless:
(a) it is terminated by consent of the Minister and all the
owners (for the time being) of the biobank site concerned,
or
(b) it is terminated by the Minister (without the consent of the
owners), and that termination is authorised by this Part.
(3) The Minister must not consent to the termination of a biobanking
agreement unless such measures as may be required by the
Minister are taken by the owner of the biobank site to offset any
negative impact of the termination on the biodiversity values
protected by the agreement. This subsection does not apply if
voluntary termination of the agreement is permitted under this
section.
(4) For the purposes of subsection (3), the required measures may
include one or more of the following:
(a) the cancellation of credits created in relation to the biobank
site,
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(b) the retirement of credits created in relation to another
biobank site,
(c) entering into a biobanking agreement for the purpose of
establishing another biobank site.
(5) The Minister must consent to the termination of a biobanking
agreement on the request of the owner of the biobank site if
voluntary termination of the agreement is permitted under this
section.
(6) For the purposes of this section, voluntary termination of a
biobanking agreement is permitted only if the owner of the
biobank site requests the termination of the agreement within 3
months after it is entered into, or after the expiry of 5 years after
the agreement has been entered into, and at the time of
termination:
(a) no biodiversity credits have been created in respect of the
biobank site, or
(b) in a case where biodiversity credits have been created, the
owner of the biobank site is the holder of all credits that
have been created since registration of the biobank site,
none of the credits created have been retired and all the
credits are cancelled by the Director-General with the
consent of the owner.
(7) The regulations may prescribe a procedure for applying for the
consent of the Minister to the termination of an agreement,
including by requiring a fee to be paid in respect of an
application.
127H Variation of agreements
(1) A biobanking agreement may be varied:
(a) by a subsequent agreement between the Minister and the
owners (for the time being) of the biobank site concerned,
or
(b) by the Minister, without the consent of the owners, where
that variation is authorised by this Part.
(2) The Minister must not agree to any variation of a biobanking
agreement with the owners of the biobank site unless:
(a) if the land is subject to a mortgage or charge, the
mortgagee or chargee has consented in writing to the
variation, and
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(b) if the land is subject to a covenant, the Minister has
consulted with the person entitled to the benefit of the
covenant about the variation, and
(c) if the land is the subject of a mining lease or mineral claim
under the Mining Act 1992 or a production lease under the
Petroleum (Onshore) Act 1991, the holder of the lease or
claim has consented in writing to the variation, and
(d) if the land is the subject of any mining authority or
petroleum title not referred to in paragraph (c), the
Minister has consulted with the holder of the mining
authority or petroleum title about the variation.
Note. Subsection (2) (c) applies in respect of any mining lease under the
Mining Act 1992 that is granted over the land. This may include a mining
lease granted over the subsoil of the land or over parts of the subsoil of
the land.
(3) The Minister must not agree to any variation of a biobanking
agreement unless satisfied that the variation does not have a
negative impact on the biodiversity values protected by the
agreement or that other measures required by the Minister have
been taken by the owner of the biobank site to offset any such
negative impact.
(4) For the purposes of subsection (3), the required measures may
include one or more of the following:
(a) the cancellation of credits created in relation to the biobank
site,
(b) the retirement of credits created in relation to another
biobank site.
(5) If a biobank site consists of more than one parcel of land, the
Minister may consent to the variation of a biobanking agreement
so as to terminate its application in respect of any single parcel of
land, and the provisions of this section apply in respect of any
such variation.
(6) The regulations may prescribe a procedure for applying for the
consent of the Minister to a variation of an agreement, including
by requiring a fee to be paid in respect of an application.
(7) In this section, a reference to a person entitled to the benefit of a
covenant includes, in the case of a covenant imposed under
section 88D or 88E of the Conveyancing Act 1919, a reference to
a prescribed authority (within the meaning of those sections) or a
person entitled to exercise, on behalf of the Crown, the functions
of a prescribed authority under those sections.
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127I Registration of agreements
(1) On being notified by the Minister that a biobanking agreement
has been entered into, or that any such agreement has been varied
or terminated, the Registrar-General must:
(a) in the case of a biobanking agreement relating to land
under the Real Property Act 1900--register the agreement,
variation or termination by making an entry concerning the
agreement, variation or termination in any folio of the
Register kept under that Act that relates to that land, or
(b) in the case of a biobanking agreement relating to land not
under the Real Property Act 1900:
(i) register the agreement, variation or termination in
the General Register of Deeds kept under Division 1
of Part 23 of the Conveyancing Act 1919, and
(ii) if appropriate, make an entry concerning the
agreement, variation or termination in any official
record relating to Crown land that relates to that
land.
(2) A biobanking agreement relating to land under the Real Property
Act 1900 about which an entry is made in a folio and that is in
force is an interest recorded in the folio for the purposes of
section 42 of that Act.
127J Agreements to run with land
(1) A biobanking agreement that has been registered by the
Registrar-General and that is in force is binding on, and
enforceable by and against, the successors in title to the owner
who entered into the agreement and those successors in title are
taken to have notice of the agreement.
(2) In this section:
successors in title includes a mortgagee, chargee, covenant
chargee or other person, in possession of a biobank site pursuant
to a mortgage, charge, positive covenant or other encumbrance
entered into before or after the registration of the biobanking
agreement.
127K Management actions under biobanking agreement exempt from
Environmental Planning and Assessment Act 1979
(1) Management actions under a biobanking agreement for which
biodiversity credits may be created under this Part are taken to be
exempt development for the purposes of the Environmental
Planning and Assessment Act 1979.
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(2) For the purposes of section 76 (3) of that Act, a reference to the
environmental planning instrument in respect of such exempt
development is taken to be a reference to the biobanking
agreement.
(3) The regulations may exclude any management actions from the
operation of this section.
127L Enforcement of agreements
(1) Any person may bring proceedings in the Land and Environment
Court for an order to remedy or restrain a breach of a biobanking
agreement, whether or not any right of the person has been or
may be infringed by or as a consequence of the breach.
(2) If the Court is satisfied that a breach of the biobanking agreement
has been committed or will, unless restrained by order of the
Court, be committed, it may make such order as it thinks fit to
remedy or restrain the breach.
(3) Without limiting subsection (2), the Court may:
(a) in the case of proceedings brought in the Court by the
Minister, award damages against the owner of a biobank
site for a breach of the biobanking agreement that arose
from an intentional, reckless or negligent act or omission
by or on behalf of the owner or a previous owner of the
land (being an act or omission of which the owner had
notice) including a failure by the owner or previous owner
to prevent another person from causing a breach of the
biobanking agreement, and
(b) in any case, direct the owner of the biobank site to retire
biodiversity credits of a specified number and class (if
applicable) within a period specified in the order and, if the
owner does not hold sufficient biodiversity credits to
comply with the direction, to acquire the necessary
biodiversity credits for the purpose of retiring them.
(4) In assessing damages for breach of a biobanking agreement by an
owner or previous owner, the Court may have regard to:
(a) any detriment to the public interest arising from the breach,
and
(b) any financial or other benefit that the owner or previous
owner gained or sought to gain by committing the breach,
and
(c) any other matter that it considers relevant.
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(5) Proceedings under this section may be brought by a person on his
or her own behalf or on behalf of himself or herself and on behalf
of other persons (with their consent), or a body corporate or
unincorporated body (with the consent of its committee or other
controlling or governing body), having like or common interests
in those proceedings.
(6) Any person on whose behalf proceedings are brought is entitled
to contribute to or provide for the payment of the legal costs and
expenses incurred by the person bringing the proceedings.
(7) Section 89 of the Conveyancing Act 1919 does not authorise any
court to modify or wholly or partially extinguish any restriction
or obligation created by a biobanking agreement except with the
consent of the Minister.
127M Powers of authorised officers
Without limiting section 156B of the National Parks and Wildlife
Act 1974, the functions conferred on an authorised officer by that
section may also be exercised for the purpose of determining
whether there has been compliance with or a contravention of a
biobanking agreement.
127N Minister may order owner to rectify breach of biobanking
agreement
(1) The Minister may, by order under this section, direct a person
who is the owner of a biobank site to carry out at the person's
cost, within a period specified in the order, such work or other
actions as the Minister considers necessary to rectify any breach
of a biobanking agreement.
(2) If the requirements of the order are not complied with within the
period specified in it, the Minister:
(a) may enter the land and cause the work or actions specified
in the order to be carried out, and
(b) may, by proceedings brought in any court of competent
jurisdiction, recover as a debt from the person to whom the
order was given the reasonable cost of complying with
those requirements.
(3) This section does not prevent the Minister from seeking an award
of damages against the owner of a biobank site for a breach of a
biobanking agreement.
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127O Transfer of land to Minister
(1) Where a person has contravened, whether by act or omission, a
biobanking agreement, the Minister may apply to the Land and
Environment Court for an order that the land be conveyed or
transferred to the Minister, or to another person or body
nominated by the Minister.
(2) Notice of the application is to be served on the owner of the land
by the Minister, and otherwise the application is to be made, in
accordance with any rules of the Court.
(3) An order may be made under this section only where the Court is
satisfied, on the balance of probabilities:
(a) that there is a serious risk to the biodiversity values
protected by the biobanking agreement because of the
contravention by the person, or
(b) that there is no reasonable likelihood of the person
complying with the obligations imposed by the biobanking
agreement, or
(c) that the person has previously committed frequent
contraventions of the biobanking agreement, or
(d) that the person has persistently and unreasonably delayed
complying with the obligations imposed by the biobanking
agreement.
(4) If the Court makes the order requested, the Court may impose
such conditions on the conveyance or transfer of the land as the
Court thinks fit.
(5) Where land is conveyed or transferred to the Minister, or to a
person or body nominated by the Minister, in accordance with an
order made under this section, the consideration payable by the
Minister, person or body, is to be determined in the same way as
the compensation payable under the Land Acquisition (Just
Terms Compensation) Act 1991 in respect of an acquisition of
land, but is to be reduced by the amount that, in the opinion of the
Court, is equivalent to any outstanding liability of the person to
the Minister arising out of contravention of the biobanking
agreement.
(6) In calculating the consideration payable as referred to in
subsection (5), the value of the land is to be determined having
regard to the fact that it is subject to a biobanking agreement, and
any increase in the value of the land attributable to anything done
or omitted to be done in contravention of the biobanking
agreement is to be disregarded.
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127P Application of Environmental Planning and Assessment Act 1979
(1) For the purposes of section 28 of the Environmental Planning
and Assessment Act 1979:
(a) a biobanking agreement is taken to be a regulatory
instrument, and
(b) the Minister is responsible for the administration of such a
regulatory instrument.
Note. Section 28 of the Environmental Planning and Assessment Act
1979 allows an environmental planning instrument to suspend the
operation of a regulatory instrument for the purpose of enabling
development to be carried out. Such a suspension cannot be given effect
to without the concurrence in writing of the Minister responsible for the
administration of the regulatory instrument.
(2) The Minister is not to concur, under section 28 of the
Environmental Planning and Assessment Act 1979, to the
suspension of a biobanking agreement unless satisfied that:
(a) the suspension, or any development the suspension of the
biobanking agreement would enable to be carried out, does
not have a negative impact on the biodiversity values
protected by the agreement, or
(b) other measures are to be taken that will satisfactorily offset
the negative impact of the suspension or development on
the biodiversity values protected by the agreement (which
may include the cancellation or retirement of biodiversity
credits).
(3) In relation to any particular biobanking agreement, a provision of
an environmental planning instrument made under section 28 of
the Environmental Planning and Assessment Act 1979 and in
force:
(a) immediately before the commencement of this section, or
(b) immediately before the biobanking agreement takes effect,
does not affect the operation of the biobanking agreement unless
the provision is subsequently amended to expressly affect the
operation of the biobanking agreement.
127Q Proposals by public authorities affecting biobank sites
(1) A public authority must not carry out development on a biobank
site unless:
(a) it has given written notice of the proposed development to
the Minister and the owner of the biobank site, and
(b) it has received written notice from the Minister consenting
to the development.
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(2) The Minister may consent to the development only if:
(a) the Minister is of the opinion that the proposed
development will neither adversely affect any
management actions that may be carried out on the land
under the biobanking agreement nor adversely affect the
biodiversity values protected by the agreement, or
(b) the Minister is satisfied that any adverse effect of the
development on biodiversity values (including any future
improvement to biodiversity values that would otherwise
be achieved by the management actions on the biobank
site) will be offset by the retirement of biodiversity credits
by the public authority, or
(c) the development is required for an essential public purpose
or for a purpose of special significance to the State.
(3) The Minister may, as a condition of granting consent under this
section, direct the public authority to retire biodiversity credits of
a number and class (if any) specified by the Minister and, if the
person does not hold a sufficient number of biodiversity credits
to comply with the direction, direct the public authority to acquire
the necessary biodiversity credits for the purpose of retiring
them.
(4) The Minister may approve an arrangement under which:
(a) the retirement of some or all of the biodiversity credits is
deferred pending the completion of restorative actions that
will restore or improve the biodiversity values affected by
the development, and
(b) the biodiversity credits the retirement of which is deferred
pending the completion of those actions are required to be
transferred to the Minister.
(5) Division 7 applies in respect of any such arrangement as if it were
a deferred retirement arrangement approved by the
Director-General under that Division.
(6) The Minister may, by order published in the Gazette, vary or
terminate the biobanking agreement relating to a biobank site
without the consent of the owner of the biobank site if consent to
development is granted under this section and the variation or
termination is necessary to enable the public authority to carry
out the development.
(7) The owner of a biobank site is not entitled to any compensation
as a result of the variation or termination of an agreement under
this section.
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(8) Subsection (7) does not affect any right to compensation the
owner may have under the Land Acquisition (Just Terms
Compensation) Act 1991 or any other Act in respect of the
development.
(9) This section does not apply:
(a) to any part of a biobank site that is a wilderness area within
the meaning of the Wilderness Act 1987 or that is critical
habitat, or
(b) in respect of development proposed to be carried out by a
public authority on a biobank site if the public authority is
the owner of the biobank site and the proposed
development is not inconsistent with the terms of the
biobanking agreement.
(10) The consent of the Minister under this section is not an approval
for the purposes of Part 5 of the Environmental Planning and
Assessment Act 1979.
127R Resolution of certain disputes
(1) If a dispute arises as to the failure of the Minister to consent to a
development proposal of a public authority under section 127Q,
or as to the conditions of any consent granted or proposed to be
granted under that section by the Minister, a party to the dispute
may submit that dispute to the Premier for settlement.
(2) On the submission of a dispute to the Premier, the Premier may:
(a) appoint a Commissioner of Inquiry to hold an inquiry and
make a report to the Premier, or
(b) hold an inquiry into the dispute.
(3) After the completion of the inquiry, and after considering any
report, the Premier may make such order with respect to the
dispute, having regard to the public interest and to the
circumstances of the case, as the Premier thinks fit.
(4) An order made by the Premier may direct the payment of any
costs or expenses of or incidental to the holding of the inquiry.
(5) A Minister or public authority is to comply with an order given
under this section and is, despite the provisions of any Act, taken
to be empowered to comply with any such order.
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127S Prospecting and mining on biobank sites
(1) The Minister may, by order published in the Gazette, vary or
terminate a biobanking agreement without the consent of the
owner of the biobank site if a mining authority or petroleum title
is granted in respect of the biobank site and the Minister is of the
opinion that the activity authorised by the mining authority or
petroleum title:
(a) will adversely affect any management actions that may be
carried out on the land under the biobanking agreement, or
(b) will adversely affect the biodiversity values protected by
the biobanking agreement.
(2) If the Minister varies or terminates the biobanking agreement
under this section, the Minister may, by order in writing to the
holder of the mining authority or petroleum title, direct the holder
to retire biodiversity credits of a number and class (if any)
specified by the Minister within a time specified in the order.
(3) A direction may be given to a person under subsection (2) only if
biodiversity credits have already been created in respect of
management actions that were carried out or proposed to be
carried out on the biobank site and have been transferred to any
person.
(4) The maximum number of biodiversity credits that the holder of
the mining authority or petroleum title may be required to retire
under the direction is the number of biodiversity credits that have
been created in respect of the biobank site.
(5) A person must not, without reasonable excuse, fail to comply
with a direction under subsection (2).
Maximum penalty: 10,000 penalty units.
(6) It is not an excuse for a failure to comply with a direction under
this section that the person who is the subject of the direction
does not, at the time the direction is given, hold a sufficient
number of biodiversity credits to comply with the direction.
Note. If the person who is the subject of the direction does not hold a
sufficient number of credits to comply with the direction, the person may
obtain the required number by purchasing them.
(7) A court that convicts a person of an offence under subsection (5)
may, in addition to or in substitution for any pecuniary penalty
for the offence, by order direct the person to retire, in accordance
with this Part, biodiversity credits of a specified number and class
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(if applicable) within a time specified in the order and, if the
person does not hold sufficient biodiversity credits to comply
with the direction, to acquire the necessary biodiversity credits
for the purpose of retiring them.
(8) The owner of a biobank site is not entitled to any compensation
as a result of the variation or termination of an agreement under
this section.
(9) Subsection (8) does not affect any right to compensation the
owner may have under the Mining Act 1992, the Petroleum
(Onshore) Act 1991 or any other legislation in respect of the grant
of the mining authority or petroleum title.
(10) In this section:
conviction includes the making of an order under section 10 of
the Crimes (Sentencing Procedure) Act 1999.
127T General provisions relating to variation or termination of
agreements without consent of owner
(1) This section applies if the Minister proposes to vary or terminate
a biobanking agreement without the consent of the owner of the
biobank site by order under section 127Q or 127S.
(2) The Minister is not to make such an order unless:
(a) written notice of the Minister's intention to vary or
terminate the agreement has been given to the owner of the
biobank site stating that the owner may make submissions
to the Minister within the period specified in the notice
(being a period of not less than 28 days), and
(b) the Minister has considered any submissions made by the
owner of the biobank site, being submissions made within
that specified period.
(3) If the order is made, a copy of the order is to be laid before each
House of Parliament within 30 sitting days of that House, or such
other period as may be prescribed by the regulations, after
publication of the order.
(4) If the order varies the agreement, the owner of the biobank site
may, by written notice given to the Minister, terminate the
agreement, but only if:
(a) no biodiversity credits have been created in respect of the
biobank site, or
(b) in a case where biodiversity credits have been created, the
owner of the biobank site is the holder of all credits that
have been created since registration of the biobank site
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(that is, none of the credits created have been retired) and
all the credits are cancelled by the Director-General with
the consent of the owner.
127U Activities authorised by mining authorities and petroleum titles
not affected by biobanking agreement
Nothing in this Division:
(a) prevents the grant of a mining authority or petroleum title
in respect of a biobank site in accordance with the Mining
Act 1992 or the Petroleum (Onshore) Act 1991, or
(b) prevents the carrying out, on or in respect of a biobank site,
of any activity authorised by a mining authority or
petroleum title in accordance with the Mining Act 1992 or
the Petroleum (Onshore) Act 1991.
Division 3 Creation of biodiversity credits
127V Creation of biodiversity credits
(1) Biodiversity credits may be created by the Director-General in
accordance with this Part.
(2) A biodiversity credit is to be created in a form approved by the
Director-General.
127W Application for creation of biodiversity credit
(1) An owner of land that is a biobank site may apply to the
Director-General for the creation of biodiversity credits.
(2) An application for the creation of a biodiversity credit:
(a) is to be made in a form approved by the Director-General,
and
(b) is to contain, or be accompanied by, such information as
the Director-General requires in order to determine the
application, and
(c) is to be accompanied by a fee (if any) approved by the
Director-General.
(3) If an application is duly made, the Director-General may
determine the application by creating biodiversity credits or
refusing the application.
(4) The Director-General may create biodiversity credits in respect
of a biobank site without requiring an application to be lodged
under this section if it is required or permitted by the relevant
biobanking agreement.
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(5) The Director-General may create a biodiversity credit only if
satisfied that the management action or actions in respect of
which the credit is to be created has been carried out, is being
carried out or will be carried out in accordance with the
biobanking agreement.
(6) The Director-General is to determine the number and class of
credits to be created in accordance with the biobanking
assessment methodology and any relevant provisions of the
biobanking agreement.
(7) If the Director-General creates a biodiversity credit, the
Director-General must:
(a) register the creation of the credit by making an entry in
relation to the credit in the register of biodiversity credits,
and
(b) record the owner of the land as the holder of the credit.
(8) A biodiversity credit has no force or effect until it is so registered.
(9) The Director-General may refuse an application for the creation
of a biodiversity credit:
(a) if the Director-General is not satisfied that the relevant
management actions have been carried out, are being
carried out or will be carried out, in accordance with the
biobanking agreement, or
(b) if the creation of the credit would not comply with the
biobanking agreement or the biobanking assessment
methodology, or
(c) if any provision of the biobanking agreement has not been
complied with (whether or not the relevant management
actions have been carried out or are being carried out), or
(d) for any other reason specified in the regulations.
(10) The Director-General must refuse an application for the creation
of a biodiversity credit if the biobank site concerned is not a
registered biobank site.
(11) The regulations may prescribe a period after making an
application for the creation of a biodiversity credit at the end of
which, if the Director-General fails to either create or refuse to
create the credit, the Director-General is taken to have refused to
create the credit.
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127X Registration of biobank sites
(1) The Director-General must register land as a biobank site if the
Minister enters into a biobanking agreement under which the land
is designated as a biobank site for the purposes of this Act.
(2) The Director-General registers land as a biobank site by creating
an entry in relation to the land in the register of biobank sites and
recording in the register a description of the land and a copy of
the biobanking agreement relating to that land.
(3) Registration of land as a biobank site remains in force unless it is
suspended or cancelled by the Director-General, by notice in
writing to the owner of the land.
(4) The Director-General must cancel the registration of land as a
biobank site if there ceases to be any biobanking agreement in
force that designates the land as a biobank site for the purposes of
this Act.
(5) The Director-General may suspend or cancel the registration of
land as a biobank site if the owner of the land breaches any
conditions of the biobanking agreement or contravenes a
provision of this Part or the regulations under this Part.
(6) The cancellation or suspension of registration of a biobank site
does not affect any obligations of the owner of a biobank site
under a biobanking agreement. In particular, it does not affect
any requirement that the owner carry out, or continue to carry out,
management actions in respect of the land, even though the
owner ceases to be entitled (as a result of the cancellation or
suspension) to create biodiversity credits.
127Y Duration of biodiversity credit
A biodiversity credit, when registered in the register of
biodiversity credits, remains in force unless it is cancelled or
retired under this Part.
Note. A biodiversity credit cannot be transferred after it has been
cancelled or retired, or during any suspension period.
Division 4 Trading in biodiversity credits
127Z Transfers of biodiversity credits
(1) The holder of a biodiversity credit that is in force may transfer the
credit to any person, subject to this section and the regulations.
(2) A biodiversity credit cannot be transferred if it has been
suspended by the Director-General and the suspension is in force.
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(3) The regulations may make further provision with respect to the
transfer of biodiversity credits (including by prohibiting certain
transfers of biodiversity credits).
(4) The transfer of a biodiversity credit does not affect any
requirement imposed on the owner of a biobank site under a
biobanking agreement. In particular, it does not affect any
requirement that the owner carry out, or continue to carry out,
management actions in respect of the land in relation to which the
credit was created.
127ZA Payment of amount into Biobanking Trust Fund on first transfer of
credit
(1) The regulations may require a specified amount to be paid into
the Biobanking Trust Fund before a first transfer of a biodiversity
credit is registered under this Division.
(2) The amount to be paid into the Biobanking Trust Fund, or the
manner of its calculation, is to be as specified in the regulations.
(3) The regulations may specify exemptions from the requirement to
pay an amount into the Biobanking Trust Fund on the first
transfer of the credit. If, because of such an exemption, no
amount is payable to the Biobanking Trust Fund in respect of a
first transfer of a credit, the regulations may require the amount
to be paid into the Biobanking Trust Fund in respect of any
subsequent transfer of the credit before the transfer is registered.
(4) If a biodiversity credit is retired or proposed to be retired without
having been transferred by the owner of a biobank site, the
regulations may require any amount that would have been
payable if the biodiversity credit had been transferred to be paid
into the Biobanking Trust Fund before the credit is retired.
127ZB Registration of transfer of biodiversity credit
(1) The transfer of a biodiversity credit does not have effect until the
transfer is registered by the Director-General under this Part.
(2) An application for registration of a transfer of a biodiversity
credit may be made to the Director-General by the parties to the
transfer.
(3) The application:
(a) is to be made in a form approved by the Director-General,
and
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(b) is to be accompanied by:
(i) the fee (if any) for registration of the transfer
approved by the Director-General, and
(ii) such other information as the Director-General
requires in relation to the transfer.
(4) The Director-General registers a transfer by making a recording
in the register of biodiversity credits in relation to the credit to
indicate that the person to whom the credit has been transferred
is the holder of the biodiversity credit.
(5) If an application for the transfer of a biodiversity credit is duly
made, the Director-General must register the transfer unless
authorised or required to refuse to register the transfer by this Act
or the regulations.
(6) The Director-General must refuse to register a transfer of a
biodiversity credit in respect of which an amount is required to be
paid to the Biobanking Trust Fund unless satisfied that the
amount required to be paid to that Fund has been so paid.
(7) If the Director-General refuses to register a transfer of a
biodiversity credit in respect of which an amount has been paid
to the Biobanking Trust Fund, the Director-General may direct
the Fund Manager to repay that amount to the person who paid it,
and the Fund Manager is authorised to comply with that
direction.
127ZC Other transactions involving biodiversity credits
A biodiversity credit cannot be mortgaged, assigned, leased,
charged or otherwise encumbered, except as authorised by the
regulations.
Division 5 Cancellation, suspension and retirement of
biodiversity credits
127ZD Grounds for cancellation of biodiversity credit
(1) The Director-General may cancel a biodiversity credit that is in
force, or that has been suspended under this Part:
(a) if the Director-General is of the opinion that any
management action in respect of which the biodiversity
credit was created has not been carried out or completed,
or is not being carried out, in accordance with the
biobanking agreement, or
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(b) if the person who applied for the creation of the credit
provided any information to the Director-General in, or in
connection with, the application that was false or
misleading in a material particular, or
(c) if the credit was created in error, or
(d) if the holder of the credit has requested or agreed to the
cancellation, or
(e) if authorised to do so by any other provision of this Act or
the regulations.
(2) Without limiting subsection (1), if the Minister varies or
terminates a biobanking agreement because of activities
authorised by a mining authority or petroleum title granted in
respect of a biobank site, the Director-General may cancel any
biodiversity credits created in respect of the biobank site that
have not been transferred by the biobank site owner.
(3) The Director-General must not cancel a biodiversity credit unless
before doing so the Director-General:
(a) gives notice to the holder of the credit that he or she intends
to do so, and
(b) specifies in that notice the reasons for his or her intention
to do so, and
(c) gives the holder of the credit a reasonable opportunity to
make submissions in relation to the proposed cancellation,
and
(d) takes into consideration any such submissions by the
holder of the credit.
(4) The Director-General is not to cancel a credit if the
Director-General is satisfied that the holder of the credit is a bona
fide purchaser of the credit without notice of the circumstances
that are grounds for the cancellation of the credit.
Note. However, the Director-General may require a wrongdoer to retire
a specified number or class of credits under section 127ZI.
(5) Subsections (3) and (4) do not apply if the holder of a biodiversity
credit has requested or agreed to the cancellation of the credit.
127ZE General provisions relating to cancellation of biodiversity credits
(1) The Director-General cancels a biodiversity credit by making a
recording in the register of biodiversity credits, in relation to the
biodiversity credit concerned, that indicates that the credit is
cancelled.
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(2) The Director-General must give the holder of the credit notice in
writing of the cancellation.
(3) No compensation is payable for the cancellation of a biodiversity
credit.
(4) However, if a biodiversity credit is cancelled because of activities
authorised by a mining authority or petroleum title granted in
respect of a biobank site, the reasonable costs incurred by the
biobank site owner in carrying out, before the cancellation, the
management actions in respect of which the biodiversity credits
were created are taken, for purposes of the Mining Act 1992 or the
Petroleum (Onshore) Act 1991, to be a loss caused by deprivation
of the possession or of the use of the surface of the land
concerned as a result of the exercise of the rights conferred by the
mining authority or petroleum title.
(5) If a biodiversity credit is cancelled, the Minister may vary or
terminate the relevant biobanking agreement (with or without the
consent of the owner of the biobank site) to make it clear that any
obligation to carry out, or to continue to carry out, a management
action that arises only because of the creation of that credit ceases
to have effect.
(6) If the variation or termination is made without the consent of the
owner:
(a) the variation or termination is to be made by the Minister
by order published in the Gazette, and
(b) a copy of the order is to be laid before each House of
Parliament within 30 sitting days of that House, or such
other period as may be prescribed by the regulations, after
publication of the order.
(7) The Minister is not to make an order referred to in subsection (6)
unless:
(a) written notice of the Minister's intention to vary or
terminate the agreement has been given to the owner of the
biobank site stating that the owner may make submissions
to the Minister within the period specified in the notice
(being a period of not less than 28 days), and
(b) the Minister has considered any submissions made by the
owner of the biobank site, being submissions made within
that specified period.
(8) The cancellation of a biodiversity credit does not prevent the
Minister from seeking an award of damages against the owner of
a biobank site for a breach of a biobanking agreement.
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127ZF Suspension of biodiversity credit
(1) If the Director-General considers that there may be reasons for
cancelling a biodiversity credit, the Director-General may
suspend the biodiversity credit for a period of up to 2 months
pending an investigation into the matter.
(2) The Director-General suspends a biodiversity credit by making a
recording in the register of biodiversity credits, in relation to the
biodiversity credit concerned, that indicates that the credit is
suspended.
(3) The Director-General must give the holder of the credit notice in
writing of the suspension.
(4) No compensation is payable for the suspension of a biodiversity
credit.
127ZG Application for retirement of biodiversity credits
(1) The holder of a biodiversity credit that is in force may, by
application in writing to the Director-General, retire the credit.
Note. Once the creation of a biodiversity credit is registered, it remains
in force unless it is cancelled or retired--see section 127Y.
(2) Any application to retire a biodiversity credit may be made by the
holder of the credit:
(a) for the purpose of complying with a credit retirement
condition specified in a biobanking statement, or
(b) for the purpose of complying with a direction made by the
Minister or a court under this Part or under the National
Parks and Wildlife Act 1974, or
(c) for the purpose of complying with a condition of an
approval granted by the Minister under Part 3A of the
Environmental Planning and Assessment Act 1979 in
respect of a project to which that Part applies, or
(d) on a voluntary basis.
(3) If the Director-General accepts the application, the
Director-General is to retire the biodiversity credit.
Note. Biodiversity credits may also be retired under Division 7.
127ZH General provisions relating to retirement of biodiversity credits
(1) The Director-General retires a biodiversity credit by making a
recording in the entry relating to the credit in the register of
biodiversity credits to indicate that the credit has been retired.
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(2) The retirement of a biodiversity credit does not affect any
requirement imposed on the owner of a biobank site under a
biobanking agreement. In particular, it does not affect any
requirement that the owner carry out, or continue to carry out,
management actions in respect of the land in relation to which the
credit was created.
(3) A biodiversity credit that has been suspended by the
Director-General may not be retired during any period in which
the suspension has effect.
(4) The regulations may make further provision for the retirement of
biodiversity credits, including the procedure for retiring a credit
and the circumstances in which the Director-General may refuse
an application to retire a credit.
127ZI Order requiring biobank site owner to retire biodiversity credits
(1) The Minister may, by order in writing to a person, direct the
person to retire biodiversity credits of a specified number and
class (if applicable) within a time specified in the order.
(2) A direction may be given to a person under this section only if:
(a) the person is the owner of a biobank site (or a former
owner), and
(b) the Minister is satisfied that, because of any act or
omission by the person, one or more biodiversity credits
were created in respect of a management action that was
not carried out or completed, or that is not being carried
out, in accordance with the relevant biobanking
agreement, and
(c) the biodiversity credit or credits created have been
transferred to another person or retired.
(3) The number of biodiversity credits, and class (if applicable), that
are required to be retired is to be equivalent to the number and
class of biodiversity credits that, in the opinion of the Minister,
were created in respect of management actions not carried out or
completed, or not being carried out, in accordance with the
biobanking agreement and which have been transferred or
retired.
(4) A direction may be given to a person under this section only if
before doing so the Minister:
(a) gives notice to the person that he or she intends to make the
direction, and
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(b) specifies in that notice the reasons for his or her intention
to do so, and
(c) gives the person a reasonable opportunity to make
submissions in relation to the proposed direction, and
(d) takes into consideration any such submissions by the
person.
(5) A person must not, without reasonable excuse, fail to comply
with an order under this section.
Maximum penalty: 5,000 penalty units.
Note. If the owner of a biobank site fails to comply with the order, that
failure is also grounds for the cancellation or suspension of registration
of a biobank site.
(6) It is not an excuse for a failure to comply with an order under this
section that the person who is the subject of the order does not, at
the time the order is made, hold a sufficient number of
biodiversity credits to comply with the order.
Note. If the person who is the subject of the order does not hold a
sufficient number of credits to comply with the order, the person may
obtain the required number by purchasing them or carrying out the
necessary management actions to create them.
(7) A court that convicts a person of an offence under subsection (5)
may, in addition to or in substitution for any pecuniary penalty
for the offence, by order direct the person to retire, in accordance
with this Part, biodiversity credits of a specified number and class
(if applicable) within a time specified in the order and, if the
person does not hold sufficient biodiversity credits to comply
with the direction, to acquire the necessary biodiversity credits
for the purpose of retiring them.
(8) Any action taken under this section does not prevent the Minister
from seeking an award of damages against the owner or former
owner of a biobank site for a breach of a biobanking agreement.
(9) In this section:
conviction includes the making of an order under section 10 of
the Crimes (Sentencing Procedure) Act 1999.
Division 6 Biobanking statements
127ZJ Development for which biobanking is available
For the purposes of this Part, development for which biobanking
is available means any development (whether or not
development that is a project to which Part 3A of the
Environmental Planning and Assessment Act 1979 applies,
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development that requires development consent under Part 4 of
that Act or development that is an activity to which Part 5 of that
Act applies) other than the following:
(a) any clearing of native vegetation that must not be carried
out except in accordance with a development consent
granted in accordance with the Native Vegetation Act 2003
or a property vegetation plan under that Act,
(b) development declared by the regulations to be
development in respect of which biobanking is not
available.
Note. A biobanking statement may be issued in respect of any
development that is development for which biobanking is available.
However, participation in the scheme is voluntary (that is, it is not
necessary to obtain a biobanking statement in respect of the
development). If a statement is obtained, the proponent of the
development obtains the benefit of the statement (as set out in sections
127ZO and 127ZP). The conditions of the statement will be incorporated
into the conditions of the development consent or approval for the
activity given under the Environmental Planning and Assessment Act
1979.
127ZK Application for biobanking statement in respect of development
(1) A person who proposes to carry out any development for which
biobanking is available may apply to the Director-General for a
biobanking statement in respect of the development.
(2) The application must be made in an approved form and be
accompanied by such fee, if any, as may be approved by the
Director-General.
(3) An application for a biobanking statement must be accompanied
by:
(a) a description of the development to which the application
relates, and
(b) a statement of any onsite measures that are proposed to be
taken in connection with the development to minimise the
impact of the development on biodiversity values, and
(c) an assessment of the impact or likely impact of the
development on biodiversity values, prepared in
accordance with the biobanking assessment methodology,
and
(d) a statement of the number and class (if applicable) of
biodiversity credits proposed to be retired to offset the
impact or likely impact of the development on biodiversity
values, prepared in accordance with the biobanking
assessment methodology.
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(4) The regulations may prescribe other things that are required to be
submitted with the application.
127ZL Circumstances in which biobanking statement may be issued
(1) The Director-General may, on application made in accordance
with this Part, issue a biobanking statement in respect of a
proposed development if the development will improve or
maintain biodiversity values.
(2) For the purposes of this Division, a development will improve or
maintain biodiversity values only if a determination is made by
the Director-General, on the basis of an assessment of the
development in accordance with the biobanking assessment
methodology (including the number and class of biodiversity
credits to be retired as an offset against the negative impact of the
development on biodiversity values), that the development will
improve or maintain biodiversity values.
(3) The Director-General must refuse to issue a biobanking
statement in respect of a development that does not improve or
maintain biodiversity values.
(4) In addition, the Director-General may refuse an application for
the issue of a biobanking statement:
(a) if the application does not comply with this Part or the
regulations, or
(b) if, in the opinion of the Director-General, insufficient
information is provided to enable a biobanking statement
to be issued, or
(c) if, in the opinion of the Director-General, the application
does not sufficiently address the biobanking assessment
methodology, or
(d) if, in the opinion of the Director-General, the applicant has
not demonstrated that all cost effective onsite measures to
minimise any negative impact of the development on
biodiversity values are being or will be carried out, or
(e) for any other reason specified in the regulations.
(5) The Director-General must refuse an application for the issue of
a biobanking statement if:
(a) the application relates to development that is not
development for which biobanking is available, or
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(b) the application relates to development that requires
planning concurrence under section 127ZM and the
Director-General of the Department of Planning does not
concur with the issue of the statement.
(6) A biobanking statement may apply generally to the proposed
development or may be limited by reference to one or more of the
following:
(a) the impact or potential impact of the proposed
development on specified biodiversity values,
(b) a specified aspect of the proposed development,
(c) a specified part of the land on which the development is to
be carried out.
(7) The regulations may prescribe a period after making an
application for a biobanking statement at the end of which, if the
Director-General fails to either issue or refuse to issue a
biobanking statement, the Director-General is taken to have
refused to issue the biobanking statement.
(8) A refusal by the Director-General to issue a biobanking statement
in respect of development does not prevent the development
being evaluated or assessed in accordance with the provisions of
the Environmental Planning and Assessment Act 1979 that would
apply in respect of the development, but for this Part.
Note. Participation in the biobanking scheme is voluntary. If a
biobanking statement is not obtained in respect of a development
(including because it is refused by the Director-General) the
development may still be evaluated or assessed in accordance with the
relevant provisions of the Environmental Planning and Assessment Act
1979. These provisions may require (among other things) the
preparation of a species impact statement and the concurrence of, or
consultation with, the Minister for the Environment and the
Director-General.
(9) A consent authority or determining authority cannot refuse to
consent to or approve a development or activity under Part 4 or 5
of the Environmental Planning and Assessment Act 1979 on the
ground that an application for a biobanking statement in respect
of the development or activity was refused.
(10) A biobanking statement is not an approval for the purposes of
Part 5 of the Environmental Planning and Assessment Act 1979.
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127ZM Concurrence of Director-General of Department of Planning
required in certain cases
(1) If the Director-General is of the opinion that a proposed
development requires planning concurrence, the
Director-General must not issue a biobanking statement in
relation to the development unless:
(a) the Director-General has given the Director-General of the
Department of Planning notice of the proposal to issue the
biobanking statement, and
(b) the Director-General of the Department of Planning
concurs with the issue of the biobanking statement.
(2) For the purposes of this section, development requires planning
concurrence if the development is of a kind declared by a State
environmental planning policy made under the Environmental
Planning and Assessment Act 1979 to be development requiring
planning concurrence.
(3) The Director-General of the Department of Planning may concur,
or refuse to concur, with the issue of a biobanking statement by
the Director-General of the Department of Environment and
Conservation.
(4) The Director-General of the Department of Planning may refuse
to concur with the issue of a biobanking statement on any
grounds specified in a State environmental planning policy made
under the Environmental Planning and Assessment Act 1979.
(5) If the Director-General of the Department of Planning fails to
notify the Director-General of the Department of Environment
and Conservation whether the Director-General concurs, or
refuses to concur, with the issue of a biobanking statement by the
end of the relevant consultation period, the Director-General of
the Department of Planning is taken to have concurred with the
issue of the biobanking statement.
(6) For the purposes of this section, the relevant consultation period
means the period of 21 days after the Director-General of the
Department of Environment and Conservation gives the
Director-General of the Department of Planning notice of the
proposal to issue a biobanking statement or such other period as
may be agreed (either generally or in a particular case) by the
Director-General of the Department of Environment and
Conservation and the Director-General of the Department of
Planning.
(7) For the purposes of the Environmental Planning and Assessment
Act 1979, the kinds of development for which planning
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concurrence is required under this section, and the grounds on
which the Director-General of the Department of Planning may
refuse to concur to the issue of a biobanking statement, are taken
to be matters of State environmental planning significance.
127ZN Form and conditions of biobanking statement
(1) A biobanking statement must:
(a) describe the development to which the statement relates,
and
(b) specify any conditions applicable to the statement, being
conditions of the following kind:
(i) a condition or conditions relating to the onsite
measures that must be taken in connection with the
development to minimise any negative impact on
biodiversity values,
(ii) a credit retirement condition, being a condition that
specifies the number and class of biodiversity
credits (if any) that are to be retired to ensure that the
development improves or maintains biodiversity
values, and the timing of that retirement.
(2) If the biobanking statement specifies a credit retirement
condition, it must also describe any deferred retirement
arrangement that applies in respect of the credit retirement
condition.
(3) A biobanking statement is to be issued in a form approved by the
Director-General.
(4) The Director-General may, before issuing a biobanking
statement, provide a draft of the statement proposed to be issued
to the applicant.
(5) The Director-General may provide a copy of a biobanking
statement, or a draft of a statement proposed to be issued by the
Director-General, to the Minister administering the
Environmental Planning and Assessment Act 1979, a consent
authority, a determining authority (within the meaning of Part 5
of that Act), or to any other person prescribed by the regulations.
127ZO Effect of issue of biobanking statement--development requiring
development consent
(1) If development described in a biobanking statement supplied to a
consent authority is development for which consent is required
under Part 4 of the Environmental Planning and Assessment Act
1979, the development is taken, for the purposes of that Part, to
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be development that is not likely to significantly affect any
threatened species, population or ecological community under
this Act, or its habitat.
(2) If a consent authority grants consent, under Part 4 of the
Environmental Planning and Assessment Act 1979, to the
carrying out of development in respect of which a biobanking
statement has been issued and supplied to the consent authority,
being a statement that specifies conditions, the consent authority
must impose (and is taken to be authorised under that Act to
impose) a condition on the grant of that consent that requires
those conditions to be complied with.
Note. The carrying out of development in contravention of the conditions
of a development consent is an offence under section 126 of the
Environmental Planning and Assessment Act 1979.
(3) A person cannot appeal to the Land and Environment Court
under the Environmental Planning and Assessment Act 1979 in
respect of a condition imposed by a consent authority under
subsection (2).
(4) Subsection (2) does not affect the right of a consent authority to
impose conditions under section 80A of the Environmental
Planning and Assessment Act 1979 not inconsistent with the
conditions of a biobanking statement or to refuse consent.
(5) Despite section 79C of the Environmental Planning and
Assessment Act 1979, if a biobanking statement has been issued
in respect of a development, a consent authority is not required to
take into consideration the likely impact of the development on
biodiversity values.
(6) An applicant for development consent under Part 4 of the
Environmental Planning and Assessment Act 1979 may request
the consent authority to review its determination to impose any
conditions on the consent (not being an environmental
contribution condition) that are additional to the conditions of a
biobanking statement on the ground that the condition is
inconsistent with the conditions of the biobanking statement. In
particular, a review may be requested because the additional
condition relates to impacts that were assessed by the
Director-General, in accordance with the biobanking assessment
methodology, prior to the issue of the biobanking statement.
(7) Section 82A of the Environmental Planning and Assessment Act
1979 applies in respect of any such review, with any necessary
modifications, whether or not the consent authority is a council,
and whether or not the determination is a determination to which
that section would otherwise apply.
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(8) This section applies subject to any terms of the biobanking
statement that limit the statement to:
(a) a particular aspect of the development, or
(b) a particular part of the land on which the development is to
be carried out, or
(c) the impact of the development on particular biodiversity
values.
(9) Nothing in this section affects the operation of Part 4 of the
Environmental Planning and Assessment Act 1979 in respect of
any development that is likely to significantly affect any
threatened species, population or ecological community within
the meaning of Part 7A of the Fisheries Management Act 1994.
(10) In this section:
environmental contribution condition means a condition that
requires an environmental contribution (within the meaning of
section 127B).
127ZP Effect of issue of biobanking statement--activities under Part 5 of
Environmental Planning and Assessment Act 1979
(1) If development described in a biobanking statement supplied to a
determining authority is an activity to which Part 5 of the
Environmental Planning and Assessment Act 1979 applies, the
activity is taken, for the purposes of that Part, to be an activity
that is not likely to significantly affect any threatened species,
population or ecological community under this Act, or its habitat.
(2) If a determining authority approves an activity under Part 5 of the
Environmental Planning and Assessment Act 1979 in respect of
which a biobanking statement has been issued and supplied to the
determining authority, being a statement that specifies
conditions, the determining authority must impose (and is taken
to be authorised to impose) a condition on the approval of the
activity that requires those conditions to be complied with.
(3) Subsection (2) does not affect the right of a determining authority
to impose conditions on the approval of the activity under section
112 of the Environmental Planning and Assessment Act 1979 not
inconsistent with the conditions of a biobanking statement or to
refuse to approve the activity.
(4) If there is a right of appeal under any Act in respect of conditions
imposed on the approval, that right does not apply in respect of a
condition imposed by the determining authority under subsection
(2).
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(5) If a determining authority is the proponent of an activity under
Part 5 of the Environmental Planning and Assessment Act 1979
in respect of which a biobanking statement has been issued, being
a statement that specifies conditions, the determining authority
must carry out the activity in accordance with the conditions of
the biobanking statement.
(6) Subsection (5) does not affect the right of a determining authority
to refrain from carrying out the activity or to modify its activity
in a manner not inconsistent with the conditions of the
biobanking statement.
(7) Despite section 111 of the Environmental Planning and
Assessment Act 1979, if a biobanking statement has been issued
in respect of an activity, a determining authority is not required
to consider the effect of the activity on biodiversity values.
(8) A determining authority is to make arrangements that enable a
proponent of an activity to seek a review by the determining
authority of any conditions imposed on an approval that are
additional to the conditions of a biobanking statement, for the
purpose of ensuring that the additional conditions are consistent
with the conditions of the biobanking statement. In particular, the
arrangements should enable a review to be obtained in relation to
any additional condition that relates to impacts that were assessed
by the Director-General, in accordance with the biobanking
assessment methodology, prior to the issue of the biobanking
statement.
(9) This section applies subject to any terms of the biobanking
statement that limit the statement to:
(a) a particular aspect of the activity, or
(b) a particular part of the land on which the activity is to be
carried out, or
(c) the effect of the activity on particular biodiversity values.
(10) For the purposes of this or any other Act, if a determining
authority fails to comply with this section in relation to an activity
the determining authority is taken not to have complied with
Part 5 of the Environmental Planning and Assessment Act 1979.
(11) Nothing in this section affects the operation of Part 5 of the
Environmental Planning and Assessment Act 1979 in respect of
any activity that is likely to significantly affect any threatened
species, population or ecological community within the meaning
of Part 7A of the Fisheries Management Act 1994.
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127ZQ Modification, revocation and lapsing of biobanking statement
(1) A person may apply to the Director-General for the modification
or revocation of a biobanking statement.
(2) An application may be made by:
(a) the person who applied for the biobanking statement, or
(b) any other person entitled to act on a development consent
or approval under the Environmental Planning and
Assessment Act 1979 given in relation to the development
described in the biobanking statement.
(3) Subject to the regulations, this Division applies to an application
to modify or revoke a biobanking statement in the same way as it
applies to the original application.
(4) A biobanking statement (unless revoked sooner) ceases to have
any effect under this Part:
(a) at the end of the period of 2 years after it is issued by the
Director-General, or
(b) if it is extended by the Director-General before the end of
that 2-year period, at the end of the extended period.
(5) A biobanking statement does not cease to have effect at the end
of the 2-year period referred to in subsection (4) if the statement
is acted on before the end of that period.
(6) If a biobanking statement is revoked before the statement is acted
on, and a new biobanking statement is not issued in respect of the
development, the Environmental Planning and Assessment Act
1979 applies in respect of the assessment and evaluation of the
development to which the biobanking statement applied, and any
consent or approval granted in respect of the development, as if
the statement had not been issued.
Note. Participation in the biobanking scheme is voluntary. Accordingly,
a developer who has obtained a biobanking statement may apply for the
revocation of that statement and have the development evaluated,
consented to or approved in accordance with the relevant provisions of
the Environmental Planning and Assessment Act 1979. These
provisions may require (among other things) the preparation of a species
impact statement and the concurrence of, or consultation with, the
Minister for the Environment and the Director-General.
(7) For the purposes of this section, a biobanking statement is acted
on if:
(a) in the case of a statement that relates to a project to which
Part 3A of the Environmental Planning and Assessment
Act 1979 applies, the Minister administering that Act
approves that project, or
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(b) in the case of a statement that relates to development for
which consent is required under Part 4 of the
Environmental Planning and Assessment Act 1979--
development consent is granted in respect of the
development, or
(c) in the case of a statement that relates to an activity under
Part 5 of the Environmental Planning and Assessment Act
1979--a determining authority approves the activity or
commences carrying out the activity.
127ZR Minister may require retirement of credits
(1) The Minister may, by order in writing to a person, direct the
person to retire biodiversity credits of a specified number and
class (if applicable) within a time specified in the order.
(2) A direction may be given to a person under this section if:
(a) the person carries out development in respect of which a
biobanking statement has been issued, and
(b) the person fails to retire biodiversity credits in accordance
with a credit retirement condition specified in the
biobanking statement that has effect.
(3) For the purposes of this section, a credit retirement condition has
effect if:
(a) in the case of a statement that relates to a project to which
Part 3A of the Environmental Planning and Assessment
Act 1979 applies, the Minister administering that Act
imposes the credit retirement condition as a condition of
approval under that Part, or
(b) in the case of a statement that relates to development for
which consent is required under Part 4 of the
Environmental Planning and Assessment Act 1979--the
development consent requires compliance with the credit
retirement condition, or
(c) in the case of a statement that relates to an activity under
Part 5 of the Environmental Planning and Assessment Act
1979--an approval of a determining authority requires
compliance with the credit retirement condition or, if the
activity is to be carried out by the determining authority,
the determining authority commences carrying out that
activity.
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(4) A person must not, without reasonable excuse, fail to comply
with a direction under this section.
Maximum penalty: 10,000 penalty units.
(5) It is not an excuse for a failure to comply with a direction under
this section that the person who is the subject of the direction
does not, at the time the direction is given, hold a sufficient
number of biodiversity credits to comply with the direction.
Note. If the person who is the subject of the direction does not hold a
sufficient number of credits to comply with the direction, the person may
obtain the required number by purchasing them.
(6) A court that convicts a person of an offence under subsection (4)
may, in addition to or in substitution for any pecuniary penalty
for the offence, by order direct the person to retire, in accordance
with this Part, biodiversity credits of a specified number and class
(if applicable) within a time specified in the order and, if the
person does not hold sufficient biodiversity credits to comply
with the direction, to acquire the necessary biodiversity credits
for the purpose of retiring them.
(7) In this section:
conviction includes the making of an order under section 10 of
the Crimes (Sentencing Procedure) Act 1999.
127ZS Director-General may verify retirement of biodiversity credits
(1) The Director-General may issue a statement confirming that a
number and class (if applicable) of biodiversity credits specified
in the statement have been retired by a person for the purpose of
complying with a credit retirement condition.
(2) The Director-General may issue such a statement at the request
of the Minister administering the Environmental Planning and
Assessment Act 1979, a consent authority, a determining
authority (within the meaning of Part 5 of that Act), the person
who applied for the biobanking statement concerned or in any
other circumstances prescribed by the regulations.
Division 7 Arrangements for deferral of retirement of
biodiversity credits
127ZT Deferred retirement arrangements
(1) If the Director-General proposes to issue a biobanking statement
subject to a credit retirement condition and is satisfied that
restorative actions will be taken in relation to the development
that will restore or improve the biodiversity values affected by
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the development, the Director-General may approve an
arrangement (a deferred retirement arrangement) under which:
(a) the retirement of some or all of the biodiversity credits
under the credit retirement condition is deferred pending
the completion of those actions, and
(b) the biodiversity credits the retirement of which is deferred
pending the completion of those actions are required to be
transferred to the Minister.
(2) A credit retirement condition specified in a biobanking statement
has effect subject to any such deferred retirement arrangement.
(3) Subject to the powers of the Director-General under this
Division, the Minister is to hold biodiversity credits transferred
to the Minister under a deferred retirement arrangement pending
completion of the relevant restorative actions and is not permitted
to transfer, retire, or otherwise deal with, the biodiversity credits.
(4) The biobanking assessment methodology may make provision
with respect to deferred retirement arrangements, including:
(a) the types of restorative actions in respect of which deferred
retirement arrangements are available, and
(b) the number and class of biodiversity credits that may be
transferred back to a former holder of biodiversity credits
(or to any person who acquires the rights of a former
holder to apply for such a transfer) on completion of those
actions.
(5) An application for registration of the transfer of biodiversity
credits to the Minister under a deferred retirement arrangement is
to be made in the manner required by Division 4. However, it is
not necessary for the Minister to be a party to a transfer or
application for registration of transfer.
(6) The provisions of Division 5 relating to the cancellation and
suspension of biodiversity credits, and section 127ZZ (which
relates to cost recovery), apply in respect of a biodiversity credit
transferred to the Minister under a deferred retirement
arrangement as if a reference to the holder of the biodiversity
credit were a reference to the person who was the holder of the
credit immediately before it was transferred to the Minister.
127ZU Transfer or retirement of biodiversity credits held subject to
deferred retirement arrangement
(1) A former holder of a biodiversity credit may, on the completion
of any restorative actions the subject of a deferred retirement
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arrangement, apply to the Director-General for the transfer to the
former holder of any biodiversity credits held by the Minister
under that deferred retirement arrangement.
(2) An application under this section:
(a) is to be in a form approved by the Director-General, and
(b) is to be accompanied by the fee (if any) approved by the
Director-General for applications under this section and
such information as the Director-General requires.
(3) The Director-General is to determine the application in
accordance with any relevant requirements of the biobanking
assessment methodology.
(4) If, as a result of the application, the Director-General determines
that any of the biodiversity credits held by the Minister under the
deferred retirement arrangement may be transferred back to the
former holder:
(a) the Director-General is to register a transfer, from the
Minister to the former holder of biodiversity credits, of
those biodiversity credits (without requiring an application
for registration of transfer), and
(b) the Director-General may retire any remaining
biodiversity credits held by the Minister under the deferred
retirement arrangement.
(5) If, as a result of the application, the Director-General determines
that no biodiversity credits held by the Minister under the
deferred retirement arrangement should be transferred to the
former holder, the Director-General may retire all biodiversity
credits held by the Minister under the arrangement.
(6) The Director-General must, before retiring biodiversity credits
under this section, give notice of the retirement to the former
holder of the biodiversity credits.
(7) The notice is to specify the date on which the biodiversity credits
will be retired, being a date that is not less than 28 days after the
notice is given to the former holder.
(8) The Director-General may reject an application under this section
for the transfer of biodiversity credits to a former holder of the
credits if an application has already been made and determined in
respect of the development concerned, or for any other reason
specified in the regulations.
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(9) In this section, a former holder of a biodiversity credit means:
(a) the person who held the biodiversity credit immediately
before the biodiversity credit was transferred to the
Minister under a deferred retirement arrangement, or
(b) a person who acquires the rights of the person referred to
in paragraph (a) to apply for a transfer under this section in
respect of the biodiversity credit.
127ZV Deadline for completion of restorative actions
(1) A deferred retirement arrangement may provide for a period at
the end of which the deferred retirement arrangement ceases to
have effect.
(2) At the end of that period, the Director-General may retire any
biodiversity credits transferred to the Minister under the deferred
retirement arrangement that continue to be held by the Minister.
(3) The Director-General must, before retiring biodiversity credits
under this section, give notice of the retirement to the person who
held those credits immediately before they were transferred to the
Minister.
(4) The notice is to specify the date on which the biodiversity credits
will be retired, being a date that is not less than 28 days after the
notice is given to the former holder.
Division 8 Financial matters
127ZW Biobanking Trust Fund
(1) There is to be established by this Act a fund called the
"Biobanking Trust Fund".
Note. The regulations may require a specified amount to be paid into the
Fund when a biodiversity credit is first transferred to another person. It is
intended that amounts so paid will be the principal source of revenue for
the Fund.
(2) The following amounts are to be paid into the Fund, subject to
any requirements specified in the regulations:
(a) amounts required to be paid to the Fund under the
regulations in respect of the transfer or retirement of a
biodiversity credit,
(b) any amount paid out of the Fund to the owner of a biobank
site that is repaid by or recovered from the owner,
(c) the proceeds of investment of money in the Fund,
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(d) any other money appropriated by Parliament for the
purposes of the Fund or required by law to be paid into the
Fund,
(e) such other amounts as are payable to the Fund under this
Act or the regulations.
(3) The following may be paid out of the Fund, subject to any
requirements specified in the regulations:
(a) such amounts as the Minister directs to be paid from the
Fund to an owner of a biobank site in respect of
management actions carried out, being carried out or to be
carried out in accordance with a biobanking agreement,
(b) such amounts as the Minister directs to be paid from the
Fund to the Fund Manager, in payment of the remuneration
of the Fund Manager,
(c) any amounts payable by the Fund Manager in discharging
the liabilities incurred by the Fund Manager in the exercise
of its functions,
(d) such other amounts as are authorised to be paid out of the
Fund by this Act or the regulations.
127ZX Management and control of Fund
(1) The Fund Manager is to manage and control the Biobanking
Trust Fund in accordance with this Act and the regulations.
(2) The Fund Manager:
(a) is to act as trustee of money vested in the Biobanking Trust
Fund, and
(b) is to invest the money vested in the Biobanking Trust Fund
not immediately required for the purposes for which it is to
be applied in the same way as trustees may invest trust
funds under the Trustee Act 1925, subject to any
requirements specified in the regulations, and
(c) is to make payments from the Biobanking Trust Fund as
authorised by this Act and the regulations.
(3) The Fund Manager has such other functions as may be conferred
on the Fund Manager by the regulations.
(4) The Fund Manager may do all things necessary or convenient to
be done in connection with the exercise of the Fund Manager's
functions.
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(5) The regulations may make further provision with respect to the
Biobanking Trust Fund, including by providing for the
following:
(a) the investment of the money vested in the Fund,
(b) the establishment of committees to advise the Fund
Manager on the exercise of the Fund Manager's functions
under this Division or to oversee the exercise of those
functions,
(c) the obligation of the Fund Manager to report to the
Minister on the exercise of the Fund Manager's functions
under this Division,
(d) the winding up of the Fund,
(e) the review of any complaints made against the Fund
Manager.
127ZY Fund Manager
(1) The Minister is to appoint a person as Fund Manager in respect
of the Biobanking Trust Fund.
(2) It is not necessary for the person appointed as Fund Manager to
be a public authority.
(3) However, if the person appointed as Fund Manager is not a public
authority, the Fund Manager is not, and does not represent, the
Crown. Accordingly, any such Fund Manager:
(a) is not an instrumentality or agency of the State, and
(b) is not entitled to any immunity or privilege of the State,
and
(c) cannot render the State liable for any debts, liabilities or
obligations of the Fund, and
(d) is not a public authority for any purpose and is taken not to
have been constituted or established for a public purpose
or for a purpose of the State.
(4) The regulations may make further provision for the appointment
of the Fund Manager, and make provision for the termination of
the appointment of the Fund Manager and remuneration of the
Fund Manager.
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127ZZ Cost recovery
(1) The regulations may require any participant in the biobanking
scheme to pay to the Minister a contribution towards the
following:
(a) the costs of management and administration of the scheme
(including payment for services provided by any person or
body exercising functions under the scheme),
(b) the costs of ensuring compliance with the scheme,
(c) any other costs relating to the scheme.
(2) The amount of the contribution (or the manner in which it is to be
calculated) and other matters concerning its payment are to be set
out in the regulations.
(3) The contribution is recoverable by the Minister as a debt in a
court of competent jurisdiction.
(4) The regulations may authorise the payment of the contribution by
instalments. If an instalment is not paid by the due date, the
balance then becomes due and payable (together with any interest
or penalty (or both) that the regulations require to be paid in
respect of a late payment).
(5) The regulations may:
(a) exempt any person or class of persons from payment of a
contribution referred to in this section, and
(b) authorise the Minister to waive payment, or extend the
time for payment, of a contribution, or part of a
contribution, or any interest or penalty payable under this
section.
(6) In this section:
participant in the biobanking scheme means any of the following
persons:
(a) the owner of a biobank site,
(b) the holder of a biodiversity credit,
(c) a person who applies for a biobanking statement, a person
who owns the land on which development described in a
biobanking statement may be carried out or a person
entitled to act on a development consent or approval under
the Environmental Planning and Assessment Act 1979
given in relation to a development described in a
biobanking statement,
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(d) a person accredited as a conservation broker under the
regulations.
(7) For the purposes of this section, the Minister or Director-General
is not considered to be a participant in the biobanking scheme in
respect of any thing done on behalf of the Crown.
127ZZA Biodiversity Banking Account
(1) There is to be established in the Special Deposits Account an
account called the "Biodiversity Banking Account".
(2) Money in the account is under the control of the Minister and can
be expended by the Minister only for the purposes authorised by
this section.
(3) There is to be paid into the account:
(a) all contributions paid by participants in the biobanking
scheme under a regulation referred to in section 127ZZ,
and
(b) all fees and charges paid in connection with this Part, other
than any amount that is payable under this Part to the
Biobanking Trust Fund, and
(c) all costs or damages recovered in connection with
enforcement action taken against an owner of a biobank
site in respect of a failure to comply with a biobanking
agreement, this Part or the regulations under this Part,
other than amounts payable to the Biobanking Trust Fund,
and
(d) all money received in respect of penalties recovered
pursuant to this Part or the regulations under this Part, and
(e) the proceeds of investment of money in the account, and
(f) any money acquired by the Minister under section 148 of
the National Parks and Wildlife Act 1974 for the purposes
of this Part, and
(g) any money received by the Minister pursuant to section
149 of the National Parks and Wildlife Act 1974 in respect
of land or other property, or an interest in land or property,
acquired by the Minister for the purposes of this Part, or by
purchase with money from the Biodiversity Banking
Account, and
(h) any other money provided by Parliament for the purposes
of the account or required by law to be paid into the
account.
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(4) There may be paid out of the account:
(a) the costs of management and administration of the
biobanking scheme, and
(b) the costs of ensuring compliance with the biobanking
scheme, and
(c) such costs as the Minister directs are to be paid from the
account to an owner of a biobank site, and
(d) such costs as the Minister directs to be paid from the
account in payment of the remuneration of the Fund
Manager, and
(e) such other costs relating to the biobanking scheme as the
Minister directs to be paid out of the account.
(5) There may be paid out of the account to the Consolidated Fund
any amount in the account that, in the opinion of the Minister, is
in excess of the amounts required to meet the costs referred to in
subsection (4).
Division 9 Registers
127ZZB Register of biobank sites
(1) The Director-General is to keep a register of biobank sites.
(2) The register of biobank sites is to contain the following
information:
(a) the location of each biobank site,
(b) a copy of the biobanking agreement relating to each
biobank site.
(3) The register of biobank sites may also contain other information
of a kind prescribed by the regulations (including in relation to a
biobank site the registration of which has been suspended or
cancelled).
(4) Information on the register is to be made available for public
inspection at the head office of the Department and on the
website of the Department.
(5) The regulations may prescribe a fee for the provision of copies of
information on the register.
(6) The regulations may specify information on the register that is
not to be made available to the public under this section.
(7) The register may be kept wholly or partly by electronic means.
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127ZZC Register of biodiversity credits
(1) The Director-General is to keep a register of biodiversity credits.
(2) The register of biodiversity credits is to contain the following
information in relation to each biodiversity credit created under
this Part:
(a) particulars of the biobank site and management actions in
respect of which the biodiversity credit was created,
(b) the class of the biodiversity credit (if applicable),
(c) the name of the current holder, and any previous holders,
of the biodiversity credit,
(d) any suspension, cancellation or retirement of the
biodiversity credit.
(3) The register of biodiversity credits may also contain other
information of a kind prescribed by the regulations.
(4) Subject to the regulations, information on the register is to be
made available for public inspection at the head office of the
Department and on the website of the Department.
(5) The regulations may prescribe a fee for the provision of copies of
information on the register.
(6) The regulations may specify information on the register that is
not to be made available to the public under this section.
(7) The register may be kept wholly or partly by electronic means.
127ZZD Register of biobanking statements
(1) The Director-General is to keep a register of biobanking
statements.
(2) The register of biobanking statements is to contain the following
information in relation to each biobanking statement issued under
this Part:
(a) a copy of the biobanking statement,
(b) the name of the person who applied for the biobanking
statement.
(3) The register of biobanking statements may also contain other
information of a kind prescribed by the regulations.
(4) Information on the register is to be made available for public
inspection at the head office of the Department and on the
website of the Department.
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(5) The regulations may prescribe a fee for the provision of copies of
information on the register.
(6) The regulations may specify information on the register that is
not to be made available to the public under this section.
(7) The register may be kept wholly or partly by electronic means.
127ZZE Evidentiary provisions
(1) A register kept under this Division is evidence of any particulars
registered in it.
(2) If a register is wholly or partly kept by electronic means, a
document issued by the Director-General producing in writing
particulars included in the register, or the part kept by electronic
means, is admissible in legal proceedings as evidence of those
particulars.
127ZZF Correction of register
The Director-General may correct any error in or omission from
a register kept under this Part, or update a register in accordance
with the requirements (if any) specified in the regulations.
Division 10 Miscellaneous
127ZZG Appeals
(1) A person who owns land that is a biobank site and who is
dissatisfied with the decision of the Director-General to suspend
or cancel the registration of the biobank site may appeal to the
Land and Environment Court against the decision.
(2) The holder of a biodiversity credit who is dissatisfied with a
decision of the Director-General to cancel a biodiversity credit
may appeal to the Land and Environment Court against the
decision.
(3) A person who applies for the registration of a transfer of a
biodiversity credit and who is dissatisfied with a decision of the
Director-General to refuse to register the transfer may appeal to
the Land and Environment Court against the decision, but only in
the circumstances (if any) authorised by the regulations.
(4) A person who applies for the transfer to the person of a
biodiversity credit held by the Minister pursuant to a deferred
retirement arrangement and who is dissatisfied with a decision of
the Director-General in respect of the application may appeal to
the Land and Environment Court against the decision.
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(5) A person cannot appeal under subsection (4) against the
provisions of the biobanking assessment methodology or the
reasonableness of any determination of the Director-General
made in accordance with that methodology.
(6) A person who held biodiversity credits immediately before they
were transferred to the Minister pursuant to a deferred retirement
arrangement and who is dissatisfied with a decision of the
Director-General to retire those credits (other than a decision
made as a result of an application referred to in subsection (4))
may appeal to the Land and Environment Court against the
decision.
(7) An appeal may be made by a person under this section no later
than 3 months after being notified by the Director-General of the
decision.
127ZZH Special arrangements for creation of national parks and other
reservations
(1) The fact that land is a biobank site does not prevent the land from
being reserved under Part 4 or Part 4A of the National Parks and
Wildlife Act 1974.
(2) On the reservation of a biobank site as a national park, historic
site, state conservation area, regional park, karst conservation
reserve, nature reserve or Aboriginal area under the National
Parks and Wildlife Act 1974, the land concerned ceases to be a
biobank site and the biobanking agreement applicable to the land
is terminated.
127ZZI Conservation brokers
(1) The regulations may make provision for or with respect to
conservation brokers.
(2) For the purposes of this section, a conservation broker is a
person who provides, or offers to provide, any of the following
services (whether or not for fee or reward):
(a) the identification of potential biobank sites or management
actions,
(b) the negotiation of a biobanking agreement on behalf of a
land owner,
(c) assistance with an application for registration of a
biodiversity credit or an application for a biobanking
statement,
(d) assistance with buying or selling biodiversity credits,
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(e) any other service in connection with the biobanking
scheme that is prescribed by the regulations for the
purposes of this definition.
(3) Without limiting subsection (1), the regulations may:
(a) provide for the accreditation of persons as conservation
brokers, including by specifying matters that may be taken
into consideration in determining whether a person
(whether or not an individual) is a fit and proper person to
be accredited as a conservation broker, and
(b) exempt any person or class of persons from those
requirements, and
(c) prohibit any person from holding himself or herself out to
be a conservation broker, or advertising a service of a kind
referred to in subsection (2), unless accredited.
127ZZJ Participation of Minister
The Minister may participate in the biobanking scheme,
including by purchasing, holding and transferring biodiversity
credits.
127ZZK Exemption from liability
(1) The Minister, the Director-General and any other persons
employed in the administration of this Part are not liable in any
civil proceedings for anything done or omitted to be done in good
faith in the exercise or purported exercise of any function under
this Part.
(2) This section does not extend to the Fund Manager.
127ZZL Regulations
(1) The regulations may make further provision for or with respect to
the biobanking scheme.
(2) In particular, the regulations may:
(a) require the Director-General to periodically review the
operation of the scheme and report on its operation to the
Minister, and
(b) make provision for the arrangements that may be entered
into between participants in the biobanking scheme
(within the meaning of section 127ZZ), or between those
participants and other persons, in connection with the
scheme, and
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(c) make provision for the resolution of disputes arising in
connection with the operation of the scheme.
127ZZM Regulations not subject to staged repeal
A regulation that contains only the following provisions is not
repealed by the operation of Part 3 of the Subordinate Legislation
Act 1989:
(a) provisions that relate to the biobanking scheme established
by this Part (including any provisions required or
authorised by this Part, and any ancillary, consequential,
savings or transitional provisions),
(b) provisions that deal with the citation and commencement
of the regulation, or other provisions of a machinery
nature.
127ZZN Review of operation of biobanking scheme
(1) The Minister is to cause a review of the operation of the
biobanking scheme to be carried out as soon as possible after the
period of 2 years after the biobanking assessment methodology is
first published in the Gazette.
(2) The Minister may:
(a) determine the terms of reference of the review, and
(b) appoint a person or persons to carry out the review.
(3) The Minister is to ensure that the public are given an opportunity
to make submissions on the review.
(4) A report on the outcome of the review is to be tabled in each
House of Parliament within 12 months after the end of the period
of 2 years.
[7] Part 8 Scientific Committee
Renumber sections 127 and 128 as sections 128 and 128A respectively.
[8] Section 142B
Insert after section 142A:
142B Director-General may accredit persons to prepare assessments
and surveys
(1) The Director-General may institute arrangements for the
accreditation of suitably qualified and experienced persons to
undertake and prepare surveys and assessments for use in
connection with:
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(a) biodiversity certification of EPIs under Division 5 of Part
7, or
(b) any assessment of the matters referred to in section 5A
(Significant effect on threatened species, populations or
ecological communities, or their habitats) of the
Environmental Planning and Assessment Act 1979, or
(c) the biobanking scheme established under Part 7A.
(2) An applicant for accreditation must furnish the Director-General
with such information as the Director-General requires to
effectively determine the application and the application must be
accompanied by the fee fixed by the Director-General for the
consideration of the application.
(3) An accreditation is to be for the period (not exceeding 3 years)
specified by the Director-General in the instrument of
accreditation, and the accreditation (or any renewal of it) may be
given subject to the conditions and restrictions (if any) specified
in the instrument of accreditation.
(4) Without limiting subsection (3), an accreditation is to include
conditions that require surveys and assessments to be undertaken
and prepared in accordance with standards approved from time to
time by the Director-General by order published in the Gazette.
(5) The Director-General may vary conditions or restrictions (if any)
attaching to an accreditation and may suspend or cancel an
accreditation.
[9] Section 151
Omit the section. Insert instead:
151 Proceedings for offences
(1) Proceedings for an offence under this Act or the regulations may
be dealt with:
(a) summarily before a Local Court, or
(b) summarily before the Land and Environment Court.
(2) The maximum pecuniary penalty that a Local Court may impose
in respect of an offence against this Act or the regulations is 200
penalty units or the maximum penalty provided by this Act or the
regulations in respect of the offence, whichever is the lesser.
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[10] Schedule 7 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Threatened Species Conservation Amendment (Biodiversity
Banking) Act 2006
[11] Schedule 7, Part 6
Insert after Part 5:
Part 6 Provisions consequent on enactment of
Threatened Species Conservation
Amendment (Biodiversity Banking) Act
2006
15 Renumbering of provisions
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.
16 Accreditation
(1) 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).
(2) 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.
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Schedule 2 Amendment of other Acts and legislation
Schedule 2 Amendment of other Acts and legislation
(Section 4)
2.1 Environmental Planning and Assessment Act 1979 No 203
[1] Section 75JA
Insert after section 75J:
75JA Biobanking--special provisions
(1) Without limiting section 75J, the Minister may approve a project
subject to a condition that requires the proponent to acquire and
retire (in accordance with Part 7A of the Threatened Species
Conservation Act 1995) biodiversity credits of a number and
class (if any) specified by the Minister in the approval. This
subsection applies whether or not a biobanking statement under
Part 7A of that Act was obtained in respect of the project.
(2) The Minister may approve an arrangement under which:
(a) the retirement of some or all of the biodiversity credits is
deferred pending the completion of any rehabilitation or
restoration action proposed to be taken on the site of the
project, after the project has been substantially completed,
that will restore or improve the biodiversity values affected
by the project, and
(b) the biodiversity credits the retirement of which is deferred
pending the completion of those actions are required to be
transferred to the Minister administering the Threatened
Species Conservation Act 1995.
(3) Division 7 of Part 7A of the Threatened Species Conservation
Act 1995 applies in respect of any such arrangement as if it were
a deferred retirement arrangement approved by the
Director-General of the Department of Environment and
Conservation under that Division.
(4) If a biobanking statement was obtained in respect of the project,
the Minister may approve the project subject to a condition that
requires the proponent to comply with any conditions of the
biobanking statement.
Note. The conditions of a biobanking statement may require the
proponent to retire biodiversity credits in respect of the project in order
to ensure that it maintains or improves biodiversity values, or to carry out
other onsite measures to minimise any negative impact of the project on
biodiversity values.
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(5) A person cannot appeal to the Court in respect of a condition
imposed by the Minister under subsection (4).
[2] Section 78A Application
Insert after section 78A (8):
Note. Part 7A of the Threatened Species Conservation Act 1995
provides for certain circumstances in which development is taken not to
significantly affect threatened species, populations or ecological
communities, or their habitats.
[3] Section 79B Consultation and concurrence
Insert after section 79B (3):
Note. If a biobanking statement has been issued in respect of the
development under Part 7A of the Threatened Species Conservation Act
1995, the development is taken not to significantly affect threatened
species, populations or ecological communities, or their habitats.
[4] Section 79C Evaluation
Insert at the end of the note to section 79C (1):
Note. If a biobanking statement has been issued in respect of a
development under Part 7A of the Threatened Species Conservation Act
1995, the consent authority is not required to take into consideration the
likely impact of the development on biodiversity values.
[5] Section 96 Modification of consents--generally
Omit section 96 (5). Insert instead:
(5) Threatened species
Development consent of the kind referred to in section 79B (3),
or in respect of which a biobanking statement has been issued
under Part 7A of the Threatened Species Conservation Act 1995,
is not to be modified unless:
(a) in the case of development referred to in section 79B (3)--
the requirements of section 79B (3)(7) have been
complied with in relation to the proposed modification as
if the application for the proposed modification were an
application for development consent, or
(b) in the case of development in respect of which a
biobanking statement has been issued under Part 7A of the
Threatened Species Conservation Act 1995--the applicant
has made an application for modification of the biobanking
statement in relation to the proposal and a new biobanking
statement has been issued or the consent authority is
satisfied that the modification will have no impact on
biodiversity values (within the meaning of that Act).
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[6] Section 96AA Modification by consent authorities of consents granted
by the Court
Omit section 96AA (1B). Insert instead:
(1B) Development consent of the kind referred to in section 79B (3),
or in respect of which a biobanking statement has been issued
under Part 7A of the Threatened Species Conservation Act 1995,
is not to be modified unless:
(a) in the case of development referred to in section 79B (3)--
the requirements of section 79B (3)(7) have been
complied with in relation to the proposed modification as
if the application for the proposed modification were an
application for development consent, or
(b) in the case of development in respect of which a
biobanking statement has been issued under Part 7A of the
Threatened Species Conservation Act 1995--the applicant
has made an application for modification of the biobanking
statement in relation to the proposal and a new biobanking
statement has been issued or the consent authority is
satisfied that the modification will have no impact on
biodiversity values (within the meaning of that Act).
[7] Section 111 Duty to consider environmental impact
Insert at the end of section 111 (2) (c):
, and
(d) any biobanking agreement entered into under Part 7A of
the Threatened Species Conservation Act 1995 that applies
to the whole or part of the land to which the activity relates.
[8] Section 111, note
Insert after the section:
Note. If a biobanking statement has been issued in respect of a
development under Part 7A of the Threatened Species Conservation Act
1995, the determining authority is not required to consider the impact of
the activity on biodiversity values.
[9] Section 112 Decision of determining authority in relation to certain
activities
Insert after section 112 (1C):
Note. If a biobanking statement has been issued in respect of the activity
under Part 7A of the Threatened Species Conservation Act 1995, the
activity is taken not to significantly affect threatened species, populations
or ecological communities, or their habitats.
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Amendment of other Acts and legislation Schedule 2
2.2 Environmental Planning and Assessment Regulation 2000
[1] Schedule 1 Forms
Insert "(unless the development is taken to be development that is not likely to
have such an effect, because of the issue of a biobanking statement under Part
7A of the Threatened Species Conservation Act 1995, in which case it is
sufficient to indicate that the statement has been issued)" after "or their
habitats" in clause 1 (e).
[2] Schedule 1, clause 2 (5A)
Insert after clause 2 (5):
(5A) The species impact statement referred to in subclause (1) (f) is not
required in relation to the effect of the development on any
threatened species, populations or ecological communities, or
their habitats, if, because of the issue of a biobanking statement
under Part 7A of the Threatened Species Conservation Act 1995,
the development is taken to be development that is not likely to
significantly affect those threatened species, populations,
ecological communities, or their habitats.
2.3 Land and Environment Court Act 1979 No 204
[1] Section 17 Class 1--environmental planning and protection appeals
Insert after section 17 (ea):
(eb) appeals under section 127ZZG of the Threatened Species
Conservation Act 1995, and
[2] Section 20 Class 4--environmental planning and protection and
development contract civil enforcement
Insert after section 20 (1) (cg):
(cga) proceedings under sections 127L and 127O of the
Threatened Species Conservation Act 1995,
[3] Section 21 Class 5--environmental planning and protection summary
enforcement
Insert after section 21 (ha):
(hb) proceedings under sections 127S, 127ZI and 127ZR of the
Threatened Species Conservation Act 1995, and
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Schedule 2 Amendment of other Acts and legislation
2.4 Land Tax Management Act 1956 No 26
[1] Section 10 Land exempted from tax
Insert after section 10 (1) (o):
(p) land that is the subject of a biobanking agreement under
Part 7A of the Threatened Species Conservation Act 1995,
[2] Section 10 (2C)
Insert "or part of any land is the subject of a biobanking agreement under Part
7A of the Threatened Species Conservation Act 1995," after "subsection (1)
(p1)),".
2.5 Mining Act 1992 No 29
Section 381A
Insert after section 381:
381A Biobank sites
The Minister is to notify the Minister administering the
Threatened Species Conservation Act 1995 of the grant of any
authority, mineral claim or opal prospecting licence in relation to
land that is a biobank site (within the meaning of Part 7A of that
Act).
2.6 National Parks and Wildlife Act 1974 No 80
[1] Section 118E Court may order offender to restore habitat and take other
actions
Omit section 118E (1). Insert instead:
(1) If a court convicts a person of an offence under this Part involving
damage to any critical habitat or habitat of a threatened species,
an endangered population or an endangered ecological
community, the court may, in addition to or in substitution for
any pecuniary penalty for the offence, make either or both of the
following orders:
(a) an order directing the person to take any action to mitigate
the damage or to restore that critical habitat or habitat,
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Amendment of other Acts and legislation Schedule 2
(b) an order directing the person to retire, in accordance with
Part 7A of the Threatened Species Conservation Act 1995,
biodiversity credits of a specified number and class (if
applicable) within a period specified in the order and, if the
person does not hold sufficient biodiversity credits to
comply with the direction, to acquire the necessary
biodiversity credits for the purpose of retiring them.
[2] Section 118E (5)
Insert after section 118E (4):
(5) In this section:
biodiversity credit has the same meaning as it has in Part 7A of
the Threatened Species Conservation Act 1995.
[3] Section 138 Payments into Fund
Insert "(except any money provided by Parliament for the purposes of the
Biodiversity Banking Account or Biobanking Trust Fund under Part 7A of the
Threatened Species Conservation Act 1995)" after "Act 1995" in section
138 (1) (a).
[4] Section 138 (1) (b) (iii)
Insert ", except those that are required to be paid into the Biodiversity Banking
Account or Biobanking Trust Fund under Part 7A of the Threatened Species
Conservation Act 1995" after "those Acts".
[5] Section 138 (1) (b) (vii)
Insert ", except penalties recovered pursuant to Part 7A of the Threatened
Species Conservation Act 1995 or the regulations under that Part" after "is
trustee".
[6] Section 138 (1) (c)
Insert ", except money required to be paid into the Biodiversity Banking
Account under Part 7A of the Threatened Species Conservation Act 1995"
after "section 148".
[7] Section 138 (1) (d)
Insert ", except money required to be paid into the Biodiversity Banking
Account under Part 7A of the Threatened Species Conservation Act 1995"
after "section 149".
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Schedule 2 Amendment of other Acts and legislation
[8] Section 138 (1) (g)
Insert "or money payable into the Biodiversity Banking Account or
Biobanking Trust Fund under Part 7A of the Threatened Species Conservation
Act 1995" after "(if any)".
[9] Section 139 Payments out of Fund
Insert ", except those incurred under Part 7A of the Threatened Species
Conservation Act 1995" after "Act 1995" in section 139 (2) (a).
[10] Section 139 (2) (l)
Insert "(except in relation to a dealing in land or other property, or an interest
in property, the proceeds of which are payable into the Biodiversity Banking
Account under Part 7A of the Threatened Species Conservation Act 1995)"
after "149".
2.7 Petroleum (Onshore) Act 1991 No 84
Section 9 Grant of petroleum titles
Insert after section 9 (5):
(6) The Minister is to notify the Minister administering the
Threatened Species Conservation Act 1995 of the grant of any
petroleum title in relation to land that is a biobank site (within the
meaning of Part 7A of that Act).
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