NSW Government Proposed "Biobanking Scheme"
• August 2005
The Threatened Species Amendment (Biodiversity Banking) Bill 2006 ("The Bill") - Recent media attention has been given to proposed State Government laws that will allow property developers to build on environmentally sensitive land.
Referred to as "biobanking", the scheme will enable developers to buy credits created through land conservation elsewhere to offset a housing project on sensitive land.
How does it work?
The best way to explain the scheme is through an example:
Sally lives on 200 hectares of land at Picton that includes 150 hectares of high conservation value Cumberland Plain Woodland. Sally could enter into a Biobanking agreement to improve biodiversity values on the biobank site. Actions to control grazing, weeds and foxes for the protection of habitats and breeding of rare mammals and birds would generate credits that Sally can sell.
Geoff, a developer is proposing a new residential development near Liverpool, but the building of houses will impact on a small area of Cumberland Plain Woodland. Using the biobanking assessment methodology, Geoff works out the number of credits needed to offset the impact of the development and could purchase credits from Sally.
How will the scheme be regulated?
Biobanking agreements will be registered on the title of land and will be generally binding on successors in title to the land who will be obliged to preserve the habitat designated as a biobank site. The NSW Department of Environment and Conservation ("DEC") will hold the relevant registers and regulate the scheme.
The scheme will not be applied retrospectively. Developers will still be required to honour any offset arrangements that have been negotiated to date where construction has already started. Where development has an unavoidable impact on biodiversity, the development will only be able to proceed if offsets can be used to achieve a 'net maintain or improve' outcome for biodiversity.
Developments and activities would first be required to avoid and minimise impacts through appropriate on-site actions before seeking to offset the impacts using biodiversity credits. There may be thresholds where development cannot proceed because offsets cannot improve or maintain biodiversity.
Why has the scheme been controversial?
The Bill has gained widespread criticism from environmental groups. DEC has raised fears that the scheme may allow areas of sensitive bushland to be traded away and destroyed. Similarly, other green groups have highlighted the possibility of developments that would otherwise be rejected because of the environmental damage they would cause to be permitted under this scheme due to the credit system.
CONTACT GRECH PARTNERS
The biobanking scheme will have a large impact on development in environmentally sensitive areas. If you are concerned that the scheme may affect you, please contact us on (02) 9851 2500 for professional advice.
This publication contains general information only. It is not provided as legal advice. Professional advice should be taken before any course of action is pursued, or any information herein relied upon.