Government's New Grab for Development Powers
The Greens will vote against a move by NSW Planning Minister Frank Sartor to further strip control over local developments from Councils. The legislation, which passed the lower house on 8 March, is little more than a naked power grab by the state government. With so many developers donating so much money to the ALP and the Coalition the bill is just a recipe for money politics.

If a developer is unhappy about how a Council is dealing with an application they can ask the Minister to remove the Council as consent authority and appoint a panel selected by the Minister. Environmental and infrastructure levies which are currently set and spent by Councils will be subject to veto by the Minister, yet there is no criteria as to how the Minister makes a decision. The conflicts of interest established by this bill are breathtaking; it is the opposite of transparency and will do little more than encourage further corruption in the development process.

Greens Call for IAAC To Ban Developer Donations
In a submission to the ICAC on corruption risks in NSW development approval processes the Greens called for all political donations from the real estate, property, building and finance industries to be banned to ensure decisions about developments are free of corruption.

The Greens believe that local communities, given adequate resources and information, are best able to determine local planning outcomes. The Greens submission also called for the ICAC to recommend timely and detailed reporting of all donations, public disclosure within fourteen days of all donations received by elected councillors and the restriction of Ministerial power over local council planning decisions to the vetoing of development consent and for the system of private certification to be abandoned.

For more information,
Sylvia Hale MLC
sylvia.hale@parliament.nsw.gov.au
www.sylvia.nsw.greens.org.au
Ph 02 9230 3030 Fax 02 9230 2159

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Implementation of "Biodiversity Certification" of Local Environment Plans (LEPs) in NSW Coastal Regions

The NSW Department of Environment and Conservation (DEC) has produced a working paper for the implementation of Biodiversity Certification. Biodiversity certification is an approval gained from the Environment Minister by local councils for part or all of their Local Environment Plans (LEPs). It remains in place for at least 10 years and allows developers, on land covered by certified LEPs, exemption from having to consider, document and/or ask approval to destroy threatened species or their habitat when seeking development approval.

The introduction of certification for local planning instruments was part of the changes to threatened species protection introduced last year through the Threatened Species Amendment Legislation 2004. Most of the provisions of the legislation have yet to commence, including the implementation of Biodiversity Certification. Details about the legislation and associated acts and information can be found on the DEC website: http://www.environment.nsw.gov.au/business/tsact.htm

The implementation of biodiversity certification is being done in tandem with the Department of Infrastructure Planning and Natural Resources’ (DIPNR) development of regional planning strategies for the NSW coast which are intended to locate what areas are suitable for development and what areas should be protected. The process involves biodiversity assessments of each region undertaken by DEC, which should then be used to inform and guide land use planning in the DIPNR strategies and revised LEPs. However inadequate time and funding for DEC to carry out assessments, and changing parameters resulting in less emphasis on the use of comprehensive biodiversity mapping and information in DIPNR regions has been problematic. This risks the Regional Strategies failing to identify and protect many high conservation value areas from development which is contrary to their purpose.

The Lower Hunter (Cessnock, Maitland, Port Stephens, Newcastle and Lake Macquarie LGAs) and Far North Coast (Tweed, Byron Bay, Ballina, Richmond, Lismore and Kyogle LGAs) regions, in which strategies are underway, have been targeted as pilots for the implementation of biodiversity certification. If they are successfully implemented there – the process is likely to be applied to other regions of the NSW coast.

For a comprehensive summary produced by the Total Environment Centre, click here (84kb MSWord .doc)

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Total Environment Centre Response:
The proposal for implementation of biodiversity certification is fundamentally flawed as a means of protecting biodiversity in regional NSW. The following are the reasons why:

1. It undermines the ongoing expansion of the reserve system as the major initiative for the conservation of biodiversity
2. It misrepresents the requirements for "maintain and improve" biodiversity
3. It under represents the scale of response required for effective biodiversity conservation
4. It misrepresents the extent and adequacy of existing information for biodiversity conservation planning
5. It is based largely on simplistic models, untried and untested or failed methodology
6. It lacks political, statutory, policy and procedural and fiscal support.

Concerns in Working Paper:
There is very little detail within the paper overall to adequately show how the biodiversity certification process will work, and that it will lead to adequate or improved outcomes to current approaches.
Biodiversity assessments
Biodiversity Banking
Land Categories
Social and Economic Values
Regulation

WHAT IS WANTED?
Biodiversity protection:
The land categories (with no permanent conservation zones apart from national parks) and means of funding and dealing with only "management" of biodiversity on private land is seriously flawed. There should be extra land categories that give stronger protection to biodiversity and don’t allow trade offs.

There is a need to adopt a system that ensures continued expansion of the reserve system as the primary mechanism for conservation of biodiversity and threatened species

This should be complemented with off-reserve measures as a supportive role, including protection through regulation, such as continued application of environment protection zonings on private land (without payment) as is currently used.

It is essential that the "maintain and improve" test is given a higher level of emphasis than "social and economic considerations" in order to protect biodiversity. .

Funding sources:
The suggestions for the biodiversity banking system should be rejected and alternative forms of funding found to buy and manage biodiversity values on private land through other means.

The process needs its own guaranteed and independent funding scheme to implement that is not reliant on DIPNR or developers.

There is a need to apply a broadly based environmental levy to cover the cost of biodiversity conservation and repair. For example a levy on all real estate transfers could be one way of raising funds.

The levy will need to raise substantial funds for both capital (acquisition) and recurrent (maintenance) funds and not be limited to private maintenance. The funds should be separated so maintenance for example does not come at the expense of the reserve system.

Offsets:
The only acceptable biodiversity "offsets" would be for landowners, where appropriate, to be given rights to develop cleared and degraded parts of their land and permanent conservation zoning to be applied to the rest or for the rest to be added to the reserve system where appropriate.

Assessments:
Regional Conservation Plans and the LEPs they inform should be based on the most comprehensive and adequate data available and be updated when new species are listed, or new information on biodiversity comes to light.

There needs to be adoption of a scientifically credible position on biodiversity loss ("maintain or improve")

There is a need to invest in and promote the development of modern information and assessment techniques

There is a need for a commitment to identifying data standards (eg standards for ecosystems at landscape stage, species at LEP stage etc) and implementing timely, comprehensive and systematic data collection related to each stage of the planning process.

Finer scale local assessments done by councils should be guided and supervised on a regional level under DEC . Without a regional approach to vegetation stratification, survey, classification and mapping there will be no basis for putting the vegetation of each council into a regional context.

Until more adequate assessment and information is available biodiversity certification should be focussed only on areas that demonstrate no effect on biodiversity at all.

Regulation:
There is a need for provision of a strong legislative policy and procedural framework to underpin biodiversity conservation processes.
DEC should retain its regulatory role on private land and be the primary body responsible for protection of biodiversity and threatened species on private as well as public land.

For the complete summary of Total Environment Centre concerns, click here (92kb MSWord .doc)

Visit the Total Environment Centre website at www.tec.org.au

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Biodiversity Banking - The Pros and Cons:
Shona Bates, Biodiversity Banking, Department of Environment and Conservation (NSW)
The Department of Environment and Conservation (DEC) is working with stakeholders to develop a Biodiversity Banking Scheme (BioBanking). The scheme is intended to provide a systematic and consistent framework for offsetting to secure biodiversity, on a net maintain or improve basis, where it would otherwise be lost to development.

The Working Paper proposes the details of the scheme and will be on public exhibition until 28 February 2006. Your comments are welcome.

In summary, the scheme aims to use market forces to discourage development in certain areas and provide incentives to conserve lands with high biodiversity values.

Developers will still be required to avoid or minimise biodiversity loss in the first instance, before considering the BioBanking option. The Scheme will recognise that some areas are too important to be able to use offsets.

The scheme will create opportunities for persons to voluntarily establish and manage biodiversity bank sites (BioBank sites). These sites are lands managed in perpetuity to protect and enhance their biodiversity values under a conservation agreement.

DEC will authorise the generation of 'credits' from these BioBank sites which could be sold to offset the impact of developments elsewhere. The BioBank sites may have other compatible land uses such as sustainable farming, low density housing or recreation provided that conservation requirements are met.

The building blocks of BioBanking will include legislation, a scheme rulebook, a rule-based assessment tool and credit register. DEC will manage the scheme and encourage stakeholders to help implement the scheme.

The scheme will be available statewide but is likely to operate east of the Great Dividing Range where development pressure is high.

A development complying with the scheme will not be required to undertake the regular threatened species assessment.

How does it fit with biodiversity certification?
BioBanking was initially conceived to support biodiversity certification. However because the development of Local Environmental Plans and their potential certification will take between two and five years, BioBanking will be brought forward so it can run independently of certification. It will still be available to support certification in the long run.

When will the scheme come into operation?
The assessment tool will be tested on demonstration sites using hypothetical scenarios in late 2006, and will be ready for implementation in 2007.

We look forward to your comments and suggestions.

The Other Side of Biodiversity Banking:
The concept of Biodiversity Banking as proposed has some serious shortcomings and is not necessarily a positive initiative for protecting high value conservation areas or ensuring the protection of threatened species.

A basic flaw in the premise of Biodiversity Banking is that money is easily tradeable, but the environment is not! The US experience is that the area of wetlands is increasing but the quality of those wetlands is deteriorating.

Wetlands are more easily reconstructed but this is not the case with terrestrial systems. To start with a bare paddock and produce a healthy ecosystem with a full complement of life forms has never been done. Conservation is barely possible let alone reconstruction.

The most likely outcome is a net loss if the rules aren't right. The system legislation must be firmly in place before the scheme can be implemented. Legislation must cover issues of compliance, legal protections and conservation covenants. The debate should be wide-ranging and open to all stakeholders before the final legislation is determined.

There must be money in the bank before one can spend it!

The New South Wales Environmental Defenders’ Office put a submission into the New South Wales Department of Environment and Conservation’s discussion paper on biodiversity banking.

EDO lawyer, Rachel Walmsley explains.

The EDO does support innovative tools and innovative new ways of looking after threatened species, because previous regimes haven’t worked. However, the lack of detail was one of our main concerns about this proposal. Our basic concerns were first and foremost, offsets, which biodiversity banking is going to implement, should only ever be used as a last resort. Secondly, there really wasn’t much information in what we were given by the government; it was kind of a glossy brochure.

Our concern with offsets is that the mechanisms they use are not directly transferable to biodiversity. For instance, it’s easy to measure how much salt or how much pollutant is in a point of water at a given point, but that doesn’t transfer directly to biodiversity when you try and value or quantify the biodiversity value say of a little rainforest, or a patch of wetland.

The idea of offering landholders and developers incentives to protect biodiversity by trading off one parcel of land for another, has much appeal to the market economy. But biodiversity is a complex thing, and trying to put a dollar value on different types of ecosystems, and the species they contain, is a brand-new challenge for biologists and environmental economists.

For a comprehensive overview of the concerns of the NSW Environment Defenders Office, please see
http://www.edo.org.au/edonsw/site/pdf/BiodiversityBanking050910.pdf

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PLANNING 'REFORMS'
Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Bill 2005

The latest amendments to the EP&A Act constitute a major attack upon the community's rights to participate in the planning process. With regard to 'major development' and 'critical infrastructure', the Minister for Planning decides the terms and scope of an EIS process, potentially bypassing standard consultation process. Where there is a consultation process, the Minister is not required to take public submissions into account when making the final decision. There is no provision for community or environmental representation on 'independent' assessment panels appointed by the Minister to assess large projects.

Although public consultation is required for assessment of 'concept plans' for 'critical infrastructure projects', the developer is not required to provide detailed information about the concept. Once the 'concept' has been approved, no subsequent major changes are permitted, even if new information comes to light. There is no right to challenge approved critical infrastructure projects in the courts. These are only a few of the problems. Others include the overriding of nine Acts such as the Coastal Protection Act, Heritage Act, and Threatened Species Act.

Obviously the Government is preparing the ground so that it can ram through more motorways (the M4 East is already back on the agenda), coalmines (16 in the pipeline for the Hunter), desalination plant (a Sartor favourite), and the Port Botany expansion, safely knowing that it's done its utmost to quell public protest. There has also been given a boost to the coal industry with plans to expand the number and size of coal fired power plants in this state.

The latest piece of planning legislation, the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Bill 2005, makes it much easier for coal mines to start up. "Critical infrastructure" will get the go ahead from the Minister and no court action can be taken to stop the project.

The primary reason for these changes are to ease the planning process for developers - at the expense of the environment and community.

The planning changes basically cut environmental assessment, referral, concurrence and approval powers or ability to intervene from agencies, councils, public involvement etc and concentrate power, decisions etc with regard to State Significant Development in the hands of the Minister and DG of DIPNR only.

Amendments apply to all listed and general State Significant Development - covering everything from mines, to major tourism or housing projects and more. And also to all developments that come under SEPP 71 which in effect turns around the entire purpose of that SEPP which was to increase coastal protection in the face of rampant ad hoc sprawl on the coast.

In short - they cut the need for the developer, proponent or whatever you want to call them, to seek permits, approvals, etc for the many different aspects of their development that effect the environment and residential amenity.

Concurrence/Approvals removed:

Bushfire permits from RFS - in high fire prone land

Concurrence/referral/approval from NPWS - for destruction of Aboriginal objects or places

Approval for a permit from Fisheries to carry out activities such as dredging or land reclamation that could effect fish breeding, passage and habitat areas and for harm to marine vegetation such as seagrasses or mangroves

Approval from DIPNR (former DLWC) for excavation on foreshores etc of rivers, lakes, etc

Approval for Clearing of native Vegetation from DIPNR

Approval for right to use water at a particular location or to carry out works that could affect surface or groundwater - eg drainage etc

Also removed are:

The ability for an Interim Protection Order (IPO) or Stop Work Order to be placed by the DEC Minister on a site to protect Threatened Species or Native Vegetation or Aboriginal artifacts that are under immediate threat by a development or aspects of a development

An Environment Protection Notice under the Protection of the Environment Operations Act from EPA - these are to clean up pollution, prevent pollution, or prohibition from carrying out something polluting, or compliance costs for damage done (they are a major tool for ensuring compliance with the PEOA).

Also Local Government powers to order a developer to refrain from carrying out damaging activity such as preventing or repairing damage from drainage works, or demolishing or building of something that pollutes a water supply

In short, the amendments remove just about every layer of environmental assessment, protection, approval etc applied from all Government Departments allowing State Significant projects to just go through a one stop shop without interference (speeds up time and cuts red tape!).

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