Biodiversity Development Assessment Report waiver

Biodiversity Development Assessment Report waivers

The Biodiversity Offsets Scheme applies to all state significant development and state significant infrastructure applications unless the Planning Agency Head and the Environment Agency Head (or their delegates) determine they are not likely to have any significant impact on biodiversity values.

If a proponent believes that their state significant project is unlikely to have a significant impact on biodiversity values, they can apply for a Biodiversity Development Assessment Report waiver. Biodiversity Development Assessment Report waivers do not apply to other types of development.

Biodiversity Development Assessment Report waivers are not relevant to applications to modify a development consent or approval. Section 7.17 of the Biodiversity Conservation Act 2016 (NSW) requires a Biodiversity Development Assessment Report to be submitted with the application for a modification, unless the authority determining the application for modification (or determining the environmental assessment requirements for the application) is satisfied that the modification will not increase the impact on biodiversity values.

When a waiver can be issued

A waiver can be issued when the Planning Agency Head and the Environment Agency Head (or their delegates) determine a development is not likely to have any significant impact on biodiversity values. It is up to the proponent to show that the proposed development will not significantly impact biodiversity – for example, a development proposing internal works to an existing building on a brownfield site with no threatened species habitat.

A proposed development could be considered as unlikely to have any significant impact on biodiversity values if it:

will not clear or remove native vegetation, other than a few single-standing trees with no native understorey in an urban area
will not clear or remove native vegetation, other than planted native vegetation that is not consistent with a plant community type known to occur in the same Interim Biogeographic Regionalisation of Australia (IBRA) subregion, such as street trees, trees in a car park, or landscaping
will have negligible adverse impact on threatened species and ecological communities, considering habitat suitability, abundance, habitat connectivity, movement of species, water sustainability, and non-natural features such as non-native vegetation and human-built structures
will have negligible adverse impact on protected animals because of impacts on flight path integrity.

Where there is reasonable doubt about potential impacts or where information is not made available to the department, a Biodiversity Development Assessment Report will be required.

If a Biodiversity Development Assessment Report waiver is not granted, there is no appeal mechanism: a Biodiversity Development Assessment Report must be submitted with the environmental impact assessment for the state significant development or state significant infrastructure.

Even with a waiver, the Secretary’s environmental assessment requirements might specify additional environmental matters that must be addressed in the environmental impact assessment, such as:

values not assessed under the Biodiversity Assessment Method
assessments under Part 7A of the Fisheries Management Act 1994 (NSW) of aquatic threatened species habitat in rivers, wetlands, lakes, estuaries and marine environments.

State significant development and state significant infrastructure projects proposed on ‘biodiversity certified land’ as described in Part 8 of the Biodiversity Conservation Act do not require a Biodiversity Development Assessment Report or waiver.

Learn about Biodiversity certification.

How to apply for a waiver

A waiver request should be lodged before the application for project approval is made.

State significant development proponents are encouraged to request a waiver when submitting a request for the Secretary’s Environmental Assessment Requirements (SEARs). This ensures early awareness of biodiversity assessment requirements.

State significant infrastructure proponents should apply for a waiver before seeking approval from the Minister for the project. The waiver request should be submitted and determined before SEARs are issued so that SEARs reflect the biodiversity assessment requirements for the project.

Proponents can submit a waiver request to the department through the Major Projects website or by email to [email protected].

Typically, a waiver request will be determined within 28 days.

A Biodiversity Development Assessment Report waiver request can be prepared by a person with tertiary qualifications in natural sciences, including relevant subjects in terrestrial biodiversity and landforms, plus a minimum of 3 years of environmental assessment experience, including field identification of plant and animal species and habitats. The person’s qualifications should be attached to the request for a Biodiversity Development Assessment Report waiver.

Waiver validity

If a proposed development changes so that it is no longer consistent with the description of the proposed development in the waiver determination, proponents must either prepare a Biodiversity Development Assessment Report or apply for a new waiver.

If a development application is not lodged within 2 years of the Biodiversity Development Assessment Report waiver determination, a new waiver request is needed.

Information required for a waiver application

Proponents must address all the impacts on biodiversity values under the scheme. Relevant biodiversity values are defined in the Biodiversity Conservation Act 2016 (NSW) (section 1.5) and the Biodiversity Conservation Regulation 2017 (clause 1.4).

The waiver request must explain whether each value is relevant to the site and/or the proposed development and provide supporting information to explain the likelihood and extent of any potential impacts, including additional biodiversity impacts prescribed under clause 6.1 of the Biodiversity Conservation Regulation 2017. All requests for a waiver must include the information requirements set out in Tables 1 and 2 below.

Table 1 – Biodiversity Development Assessment Report waiver request information requirements

Administration	Proponent name and contact details. Project ID (information to identify which state significant development or state significant infrastructure project the request relates to and where the project is up to in the assessment process). Name and ecological qualifications of person completing Table 2.
Site details	Street address, lot and DP, local government area. Description of existing development site – that is, the area of land that is subject to the proposed development application. If any part of the land is considered category 1 – exempt land, information must be provided to demonstrate how the land meets the criteria that apply to category 1 – exempt land. Location map showing the development site in the context of surrounding areas and landscape features. Satellite image of site in context of adjoining sites. Site map (to scale, ideally as a spatial shapefile).
Proposed development	Project description providing enough information to enable an understanding of the nature and scale of the proposed development and any associated activities, including construction. Proposed site plan.
Impacts on biodiversity values	Complete Table 2 below on biodiversity values. For each biodiversity value, the proponent must either: explain why the value is not relevant to the proposed development where a biodiversity value may be relevant, provide an explanation of how impacts have been avoided and identify the likelihood and extent of any remaining impacts of the proposed development, including impacts prescribed under clause 6.1 of the Biodiversity Conservation Regulation. A biodiversity value is not relevant to a proposed development if the value is not present on the development site and there is no potential for direct or indirect impacts on the biodiversity value if it occurs off-site. Where one or more biodiversity values may be relevant to the proposed development, Table 2 is to be completed by a suitably qualified person with tertiary qualifications in natural sciences, including subjects that relate to the observation and description of terrestrial biodiversity and landforms, and at least 3 years of work experience in environmental assessment, including field identification of plant and animal species and habitats. The person does not need to be an accredited person under the Biodiversity Conservation Act; however, relevant qualifications should be attached to the report. Attach additional information where biodiversity values are relevant to the site – for example, a vegetation map (indicating plant community types), ecology reports, water quality data, BioNet Atlas, Directory of Important Wetlands, migratory bird flyway information or microbat surveys of built structures.

Table 2 – Impacts of the proposed development on biodiversity values

Attach additional supporting documentation where appropriate.

Biodiversity value	Meaning	Explain and document potential impacts, including additional impacts prescribed under the Biodiversity Conservation Regulation
Vegetation abundance – 1.4(b) Biodiversity Conservation Regulation	Occurrence and extent or coverage of vegetation at a particular site	Where vegetation is present on the development site, provide a map on digital aerial photography or the best available imagery of the development site showing: native vegetation (including grasslands and other non-woody vegetation types) and non-native vegetation the area of land that is directly impacted by the proposed development, including related infrastructure such as roads, pipelines, access tracks, temporary material stockpiles, asset protection zones and powerlines, if applicable. Describe how the proposed development avoids impacts on native vegetation and identify the likelihood and extent of any remaining impacts, including removal of isolated or cultivated native plants.
Vegetation integrity 1.5(2)(a) Biodiversity Conservation Act	Degree to which the habitat needs of threatened species are present at a particular site	Identify any threatened species or ecological communities or their habitat on the development site. Describe how the proposed development avoids impacts on habitat suitability and identify the likelihood and extent of any remaining impacts, including the impacts of development on the following habitat of threatened species or ecological communities: karst, caves, crevices, cliffs and other geological features of significance rocks human-made structures non-native vegetation (prescribed under clause 6.1(1)(a) of the Biodiversity Conservation Regulation). Impacts may include the removal or modification (for example, noise, light and so on) of the habitat of threatened species or ecological communities.
Threatened species abundance 1.4(a) Biodiversity Conservation Regulation	Occurrence and abundance of threatened species or threatened ecological communities, or their habitat, at a particular site	Describe how the proposed development avoids impacts on threatened species abundance and identify the likelihood and extent of any remaining impacts, including: impacts of vehicle strikes on threatened species of animals or on animals that are part of a threatened ecological community (prescribed under clause 6.1(1)(f) of the Regulation). impacts on threatened species – for example, microbats – associated with the demolition of human-made structures (prescribed by 6.1(1)(a)(iii) of the Regulation). impacts on threatened species habitat associated with non-natural water bodies (prescribed by 6.1(1)(a)(iii) of the Regulation) – for example, threatened frogs such as the green and golden bell frog in landfill areas, drains and brick pits.
Habitat connectivity 1.4(c) Biodiversity Conservation Regulation	Degree to which a particular site connects different areas of habitat of threatened species to facilitate the movement of those species across their range	Identify whether the development site contributes to habitat connectivity. Describe how the proposed development avoids impacts on habitat connectivity and identify the likelihood and extent of any remaining impacts of development on the connectivity of different areas of habitat of threatened species that facilitates the movement of those species across their range (prescribed under clause 6.1(1)(b) of the Biodiversity Conservation Regulation).
Threatened species movement 1.4(d) Biodiversity Conservation Regulation	Degree to which a particular site contributes to the movement of threatened species to maintain their lifecycle	Describe how the proposed development avoids impacts on threatened species movement and identify the likelihood and extent of any remaining impacts of development on movement of threatened species that maintains their lifecycle (prescribed under clause 6.1(1)(c) Biodiversity Conservation Regulation).
Flight path integrity 1.4(e) Biodiversity Conservation Regulation	Degree to which the flight paths of protected animals over a particular site are free from interference	Identify whether flight paths of protected animals occur over the development site. Protected animals are animals of a species listed or referred to in Schedule 5 of the Biodiversity Conservation Act. They include any species of birds, mammals, amphibians or reptiles that are native to Australia or that periodically or occasionally migrate to Australia. Describe how the proposed development avoids impacts on flight path integrity and identify the likelihood and extent of any remaining impacts. Note: The impacts of wind turbine strikes on protected animals are prescribed under clause 6.1(1)(e) of the Biodiversity Conservation Regulation. It is, therefore, unlikely that a Biodiversity Development Assessment Report waiver would be issued for a proposed wind farm.
Water sustainability 1.4(f) Biodiversity Conservation Regulation	Degree to which water quality, water bodies and hydrological processes sustain threatened species and threatened ecological communities at a particular site	Describe how the proposed development avoids impacts on water sustainability and identify the likelihood and extent of any remaining impacts of development on water quality, water bodies (natural or derived) and hydrological processes that sustain threatened species and threatened ecological communities (including from subsidence or upsidence resulting from underground mining or other development) (prescribed under clause 6.1(1)(d) of the Biodiversity Conservation Regulation).

Impacts to threatened species habitat for non-native vegetation and human-made structures

If the proposed development includes demolition of buildings and/or impacts to other human-made structures, such as non-natural water bodies or other derived habitat features, there may be impacts on threatened species. Where relevant, the Biodiversity Development Assessment Report waiver request should include the details of potential habitat in non-native vegetation and human-made structures and demonstrate how surveys have been conducted for the presence of threatened species.

For example, to survey for threatened microbats in buildings proposed to be demolished, daytime roost searches should be carried out. A search is to be undertaken by looking for bats or signs of bats in suitable roost habitat during the daytime. All roost searches should use a torch to shine in holes, cracks and crevices, and carry a handheld bat detector to locate bats that may call. If bats are detected, observers must confirm the identity of the species and determine if the roost is a maternity roost. A description of the searches undertaken should be provided in the report.

Information required for a waiver application on category 1 – exempt land

A Biodiversity Development Assessment Report does not need to assess the impacts of native vegetation clearing and habitat loss on category 1 – exempt land, except ‘prescribed impacts’ in clause 6.1 of the Biodiversity Conservation Regulation 2017.

For any part of the proposed development that is on category 1 – exempt land, the Biodiversity Development Assessment Report waiver request need only address these ‘prescribed impacts’.

To establish land as category 1 – exempt land, proponents must provide evidence that the land meets any of the following criteria:

land cleared of native vegetation as of 1 January 1990, or lawfully cleared after that date
low conservation grasslands
land with only low conservation groundcover (excluding grasslands)
native vegetation identified as regrowth in a Property Vegetation Plan under the repealed Native Vegetation Act 2003 (NSW)
land that is biodiversity certified under the Biodiversity Conservation Act 2016 (NSW).

For more details on land categories and the Biodiversity Offsets Scheme, go to:

Applications for concept development applications and staged infrastructure proposals

Concept development applications for state significant development and certain staged infrastructure proposals (see note below) for state significant infrastructure require a Biodiversity Development Assessment Report, unless the requirement is waived.

To apply for a waiver for a concept development application or staged infrastructure proposal, the concept proposals must be sufficiently defined to enable impacts on biodiversity values to be identified. The proponent will need to address the likely impact of the concept proposals on biodiversity values, including any clearing of native vegetation that is required or likely to be required for the concept proposals. As a minimum, the proponent must identify a development footprint and address the information requirements in Tables 1 and 2.

Whether a separate waiver determination is required for subsequent applications associated with a concept development consent or staged infrastructure approval will depend on whether the subsequent application is consistent with the description of ‘proposed development’ in the initial waiver determination.

Note: A Biodiversity Development Assessment Report or waiver determination may not be required for a staged infrastructure application that is for concept approval only, where the approval does not also include an approval to carry out the first stage of the project. In such cases, please contact the department to discuss the biodiversity assessment requirements of the proposal.

Updated February 09, 2024

Biodiversity Development Assessment Report waiver