NSW Government position on key strategic issues in relation to the by lindash


NSW Government position on key strategic issues in relation to the ...

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New South Wales is committed to working with the Commonwealth to minimise
duplication between the New South Wales planning regime and the Environmental
Protection and Biodiversity Conservation Act 1999 (EPBC Act), particularly where
such overlap may impede investment and economic development in New South

To this end the New South Wales and Commonwealth governments have signed an
assessments bilateral agreement to minimise duplication in the environmental impact
assessment processes. New South Wales is also the only jurisdiction to have entered
into an approvals bilateral agreement with the Commonwealth.

New South Wales considers that there are improvements that can and should be made
to streamline approvals processes where comparable processes are in place in New
South Wales. New South Wales supports the existing statutory mechanisms for
aligning jurisdictional processes (primarily assessment and approvals bilateral
agreements, and strategic assessments), but notes that implementation of these
mechanisms has been characterised by complexity and delay. To streamline
assessments and approvals, New South Wales will work with the Commonwealth to
improve the efficient and effective implementation of existing agreements, and seeks
the commitment of the Commonwealth to progress further areas where the
development of such mechanism would be appropriate. The review of the relevant
provisions within the EPBC Act will provide opportunities to clarify and simplify the
processes for developing such mechanisms.

New South Wales is also aware of overlap, duplication and inconsistencies in
definitions, criteria and procedures for the identification and listing of threatened
species, ecological communities, heritage values and, to a lesser extent, key
threatening processes. While some deficiencies may appropriately be addressed
through a review of policy and operational arrangements, there may be benefits in
better aligning Commonwealth and State legislative provisions.

Approvals bilaterals
New South Wales will work with the Commonwealth to identify opportunities to
enter into approvals bilateral agreements to minimise duplication and overlap between
the New South Wales planning processes and the EPBC Act. In the absence of
appropriate approval bilaterals, inconsistencies and overlap between the New South
Wales planning regime and the EPBC Act can create duplication and confusion for
development proponents, which in turn may restrict development in New South
Wales. For example, in situations where the Commonwealth assesses and approves an
individual action that is not covered by an approvals bilateral, a proponent is required
to provide two separate sets of documentation to apply for approval under
Commonwealth and New South Wales approval processes. Further, the conditions of
the approval for the action granted under the EPBC Act may be duplicative or even
contrary to conditions of approval under the EP&A Act.

In particular, New South Wales will continue to pursue an approvals bilateral in
relation to threatened species based on the biodiversity certification scheme and the

biodiversity banking and offsets scheme. New South Wales has recently commenced
negotiations with the Commonwealth to pursue such an agreement, and has recently
provided the Commonwealth with a case study to demonstrate how threatened species
populations and ecological communities listed under the EPBC Act are considered in
New South Wales by the BioBanking Assessment Methodology.

New South Wales believes that a scheme-based approvals bilateral would encourage
greater adoption of the biocertification and BioBanking schemes, result in a more
efficient system in the long term and achieve a better environmental outcome overall.
It is estimated that such an approvals bilateral could see an eventual decrease the
number of matters referred under the EPBC Act by up to 50 per cent.

New South Wales will also continue to investigate other possible options for
approvals bilaterals, such as those in relation to specific heritage sites. For example,
approvals bilaterals could be negotiated for:
  classes of action (World Heritage sites generally);
  classes of approvals (eg in relation to threatened and migratory species);
  location based schemes; or
  specific sites (eg, Harbour Bridge, Australian Alps).

New South Wales notes that the complexity of the provisions for developing such
approvals bilaterals (including the requirement to table the document in both houses
of Parliament) does not assist with the task of developing them.

Strategic Assessments
New South Wales will continue to work with the Commonwealth to identify
opportunities for strategic assessments under the EPBC Act.

New South Wales is currently in negotiations with the Commonwealth regarding a
strategic assessment for the Sydney Growth Centres in Western Sydney. The
Commonwealth has offered additional resources to support the strategic work as part
of a long term response to the management of Cumberland Plain Woodland and the
management of threatened communities in general. A key issue for negotiation will be
in relation to the level of impact allowed by the Commonwealth Minister under the
strategic assessment. This is complicated by the fact that the New South Wales
definition of ecological communities is different to the Commonwealth’s definition.

The details regarding how a strategic assessment might work for the Growth Centres
SEPP are unclear at this stage but the Commonwealth has advised that it could switch
off the requirement for an additional approval under the EPBC Act where nationally
threatened species and ecological communities are likely to be significantly affected.
If this was to happen the Minister would first need to conduct an assessment process
that includes a period for public consultation and endorse the policies set out in the
Growth Centres SEPP.

New South Wales will work with the Commonwealth to investigate ways of using
strategic assessment at a land use planning or zoning stage. New South Wales
considers that, if used at the land use or planning zoning stage, strategic assessments
could provide an efficient framework for taking into consideration EPBC matters
prior to the development application stage, which would ensure that disruptions for

proponents are minimised. For example, New South Wales considers that
opportunities exist for strategic assessments for land release areas in the Lower
Hunter and industrial and other growth areas on the Central Coast.

New South Wales would also suggest that a set of clear time frames in completing
strategic assessments could be introduced to minimise uncertainty for proponents.

New South Wales will continue to work with Councils to assist in their efforts to
pursue strategic assessment of Local Environmental Plans, and would encourage the
Commonwealth to assist in these matters.

Conservation Agreements
New South Wales will continue the work it has been undertaking with the
Commonwealth since January 2008 to develop a conservation agreement to facilitate
the sale of an area of land owned by the Department of Defence in Edmondson Park
in the South West Growth Centre of Sydney. This could provide a strategic approach
for the management of lands previously owned by the Commonwealth but being
disposed of to become a future growth area. The Commonwealth is currently
reviewing the latest proposed agreement from New South Wales.

Legislative options
New South Wales will work with the Commonwealth to investigate any possible
amendments to the EPBC Act that would clarify issues of uncertainty, such as types
of development that require referral, and reduce duplication and overlap.

New South Wales notes that the provisions in the EPBC Act for making and operating
bilateral agreements may require review to clarify the intent of bilateral agreements
and reduce duplication. For example, provisions relating to the referral process could
be clarified and simplified. Similarly, the provisions for strategic assessment could be
clarified and streamlined to enable more efficient and effective implementation of the
strategic assessment process.

New South Wales also notes that it is working with the Commonwealth towards better
administrative procedures and guidelines for the administration and implementation
of the existing assessment bilateral.

Trigger for Commonwealth involvement
New South Wales recommends greater coordination between the Commonwealth and
NSW Government in the listing of threatened species and heritage matters, possibly
through a closer alignment of relevant legislation. New South Wales suggests that
issues that trigger Commonwealth engagement under the EPBC Act may require
review and possible amendment, which would in turn address many of the concerns
regarding duplication of assessment and approval requirements.

The most common triggers for Commonwealth involvement in the New South Wales
development control process are threatened species, migratory species and ecological
communities. The listing regimes for these categories under New South Wales and
Commonwealth laws are based on sound scientific principles and reflect international
best practice for classify species at risk of extinction. As a result, the EPBC Act
listing regime significantly overlaps with the listing regime in New South Wales. It is

recognised that such overlap provides benefits such as attracting national funding for
recovery efforts. However, the duplication in development assessment and approval
processes is not consistent with the NSW Government’s commitment to reduce red-
tape and does not necessarily provide greater protection.

Opportunities for amending the listing regime or regulatory triggers following listing
should be further explored. For example, a coherent single methodology for
classification and naming of endangered ecological communities would be of great
value. Also, it may be appropriate for consideration to be given to whether existing
mechanisms are in place to address recovery of, and threats to, certain species and
ecological communities, including processes to ensure impacts are properly
addressed. If such mechanisms are adequate, it may be appropriate to conclude that
there would be no conservation benefit from listing under the EPBC Act.

New South Wales also has concerns regarding difficulties in aligning the State and
Commonwealth assessment and approval processes where a matter is listed as being
of National or World Heritage significance. In some cases the geographic area
covered by the State listing and the National listing is different. Other difficulties
occur when matters are listed under the EPBC Act as being of National heritage
significance, but are not listed under the State Heritage register.

New South Wales suggests that a consistent set of heritage assessment criteria would
assist in the process of identifying nationally significant places/values from within the
states. Further, the Commonwealth could endorse existing State management plans
for World Heritage and National Heritage areas, where these are available and of
suitable quality, to avoid proliferating further layers of management over the sites

Determining what a ‘controlled action’ is
New South Wales has concerns regarding the ‘test of significance’ under the EPBC
Act, and would recommend that this provision in the Act be reviewed, and possibly
amended, to improve its implementation.

New South Wales would suggest that the ‘test of significance’ does not operate well
in practice. There is inconsistency between Commonwealth test of significance and
other legislative tests of significance, such as section 5A of the Environmental
Planning and Assessment Act 1979 (NSW) (EP&A Act). New South Wales is moving
away from a ‘significance test’ to applying a standard that requires clearing and
development proposals to provide offsets that will ‘improve or maintain’
environmental biodiversity values.

Other than the Commonwealth’s administrative guidelines for assessing significance,
there is no documentation of the reasons for the Commonwealth’s decision whether a
proposal is or is not likely to have a significant impact. There are examples of
inconsistency between Commonwealth and State decisions. One such example was
the relocation of the Grey-Headed Flying-Fox colony in the Sydney Botanic Gardens.
The NSW Department of Environment and Climate Change (DECC) has determined
that action will not have a significant impact, however the Commonwealth has
determine that the action is a controlled action (i.e. the action will have a significant

Climate Change
New South Wales recognises that it is of national importance that Australia act to reduce
emissions to avoid dangerous climate change. However, New South Wales suggests that the
EPBC Act may not be the most appropriate instrument to reduce greenhouse gas emissions.

Aboriginal Heritage
New South Wales is currently undertaking an internal review of issues relating to Aboriginal
heritage, which will aim to streamline and clarify the processes currently in place for the
protection of Aboriginal heritage in the State. Once this has been completed New South Wales
will work with the Commonwealth to identify any inconsistencies and reduce duplication and
overlap between the New South Wales legislative framework and the EPBC Act.

Wildlife Trade
New South Wales notes that some issues in relation to wildlife trade may require
review, and that possible legislative amendment to improve the implementation of the
related provisions of the EPBC Act.

The assessment and decision-making processes under the EPBC Act relating to
wildlife trade should retain public consultation requirements and retain the current
prohibition under the EPBC Act of live imports of mammals, birds, reptiles and
The review of the EPBC Act should consider creating an offence to import or export
across State and Territory borders any animal that was illegally obtained in another
State or Territory and prohibit the hybridisation of native animals thereby reducing
the risks of creating unfit animals, of interfering with the genetic integrity of wild
populations and of adversely impacting wild populations through the creation of super

Commercial fisheries assessments and export approvals
New South Wales notes that issues relating to the granting of export approvals for
commercial fisheries under Part 13A may require review.


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