1May 2017

SUBMISSION GUIDEPRIVATE LAND CONSERVATION

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CONTENTSPart 1: The new private land conservation framework 5

Unprecedented government investment 5

The Biodiversity Conservation Trust 5

The Biodiversity Conservation Investment Strategy 5

A streamlined framework of agreements 6

Part 2: Proposals for consultation in the Biodiversity Conservation Regulation and supporting products 7

Accountability of the Biodiversity Conservation Trust 7

Registers of private land conservation agreements 7

Upgrading to a new agreement 8

Further details for Biodiversity Stewardship Agreements 8

Administrative matters for Biodiversity Stewardship Agreements 8

Land eligible to be a Biodiversity Stewardship Agreement 8

Streamlining the process to make minor variations to a Biodiversity Stewardship Agreement 9

Splitting of ownership 9

Reimbursement associated with mining 9

Financial incentives available for new private land conservation agreements 9

Biodiversity Stewardship Agreements 10

Conservation Agreements 10

Wildlife Refuge Agreements 10

Proposed transitional arrangements 10

Biobanking Agreements 10

Other private land conservation agreements 10

SUBMISSION GUIDE: Private Land Conservation4

This document provides detailed information stakeholders may wish to consider when making a submission on exhibited products, tools and Regulations.

Part 1 of this submission guide outlines the new framework for private land conservation (PLC) established under the Biodiversity Conservation Act 2016 (BC Act). This Act was passed by Parliament in late 2016.

Part 2 of this submission guide outlines the elements of the new PLC framework that will be delivered by the Biodiversity Conservation Regulation and supporting products.

We are seeking comments on the proposals in Part 2 as part of the current public exhibition.

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PART 1: THE NEW PRIVATE LAND CONSERVATION FRAMEWORK The new framework for PLC established under the BC Act recognises that landholders who protect native plants and animals on their land play a key role in keeping biodiversity across NSW healthy. Many landholders currently carry out important actions that protect wildlife, restore habitats, and enhance the diversity and quality of ecosystems at their own cost.

The BC Act introduces a more streamlined and strategic approach to supporting conservation on private land. It will deliver a full range of initiatives and incentives to support landholders who want to establish a protected area on their land to manage and improve biodiversity on their properties.

Unprecedented government investment The NSW Government has committed an unprecedented $240 million over five years to support conservation on private land and $70 million in each following year, subject to performance reviews.

This investment will help to protect and conserve biodiversity at bioregional and state levels, in strategic locations. More than 70 percent of the state is under private ownership or Crown leasehold. Specific investment across these areas offers significant opportunities for biodiversity management and improvement.

The Biodiversity Conservation TrustThe BC Act establishes a new Biodiversity Conservation Trust (the Trust), which will replace the Nature Conservation Trust. The Trust will administer the new PLC program and play a key role in the new Biodiversity Offsets Scheme (see the Ecologically Sustainable Development (ESD) submission guide). The Trust will be responsible for delivering the government,s new investment in PLC.

The Biodiversity Conservation Investment StrategyA Biodiversity Conservation Investment Strategy (BCIS), established by the BC Act, will guide the Trust in prioritising the government’s investment in private land conservation across the state.

The BCIS will identify priority areas for investment that will be shown on a state-wide map. The BCIS will set out proposed objectives, priority investment areas and investment principles. The strategy will work with the national parks system to build a protected area network across public and private land. It will also complement other major NSW Government priorities and investment, such as the Saving our Species program and the NSW Koala Strategy.

The BCIS is currently in development, and will be publicly exhibited before it is made by the Minister for the Environment.

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A streamlined framework of agreementsThe BC Act rationalises the existing seven different types of conservation arrangements into three types of voluntary PLC agreements. Each has varying management responsibilities and funding opportunities for landholders:

» Biodiversity stewardship agreements (BSAs) will provide permanent protection and management of biodiversity and allow for the creation of biodiversity credits (see also ESD submission guide).

» Conservation agreements are permanent or time-bound agreements that may be eligible for stewardship payments.

» Wildlife refuge agreements are an entry level option for landholders who want to protect the biodiversity on their property but do not wish to enter into a permanent agreement.

This framework removes duplication, increases incentives and reduces barriers for landholders to enter into long-term conservation arrangements on their land. The Trust will be responsible for entering into and administering these agreements1.

1 Under the BC Act the Minister for the Environment is responsible for entering biodiversity stewardship agreements. The Minister intends to delegate these functions to the Trust.

What are the new types of private land conservation agreements? Biodiversity Stewardship Agreements will provide an opportunity for landholders to receive a possible upfront payment, and ongoing payments, by selling credits that they receive in recognition of the management actions required to be undertaken to support permanent protection and management of biodiversity on the site. The biodiversity credits can be used to offset approved development impacts, as part of the Biodiversity Offset scheme, established under the BC Act. These agreements can also be used for direct government (and any philanthropic) investment as part of a comprehensive new PLC program to secure long-term conservation outcomes.

Conservation Agreements are permanent or time-bound agreements. They may be supported by stewardship payments to landholders. These agreements will typically be used for higher conservation value land where management actions are being undertaken to protect existing biodiversity values.

Wildlife Refuge Agreements are entry level agreements that support simple and effective land management. Agreements will be able to be terminated at any time or converted into higher forms of agreements, and may be eligible for grants.

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PART 2: PROPOSALS FOR CONSULTATION IN THE BIODIVERSITY CONSERVATION REGULATION AND SUPPORTING PRODUCTSThis part of the submission guide outlines the elements of the new PLC framework that will be delivered by the Biodiversity Conservation (BC) Regulation and supporting products. You can have your say on these proposals by making a submission during the exhibition period.

Accountability of the Biodiversity Conservation Trust Under the BC Act, the Trust is required to publish a business plan every four years, as well as annual reports on its activities.

The draft BC Regulation sets out what information the Trust must include in its business plan and annual reporting, such as goals, plans for achieving those goals, plans for investing money and managing returns, and data management.

Together, these provisions will help ensure the Trust is accountable to the government and the community for the performance of its functions.

In addition to the standard requirements of public finance legislation, the draft BC Regulation requires that the Trust’s annual reports present:

» progress in the past financial year against goals identified in the Trust’s business plan

» actions undertaken in the past financial year to deliver plans in the Trust’s business plan.

For example, this may include information on how the Trust has met any offset obligations which were transferred from proponents (see the ESD submission guide for more details).

Registers of private land conservation agreements The BC Act requires OEH to keep a public register of PLC agreements (‘PLC register’). The Act requires that the register will be publicly accessible.

The draft BC Regulation requires that additional information will be recorded in the PLC register, similar to the current register of Biobanking sites. The additional information includes details of the owners, the location of the site and any agreements and management plans made for the site. The Chief Executive of OEH may restrict access to information in a register where satisfied it is in the public interest to do so, and in other circumstances provided in the draft BC Regulation, including where required by the terms of the agreement.

This additional information will help the community understand where and how investment in biodiversity conservation is occurring and to demonstrate that the land is being managed to protect biodiversity.

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Upgrading to a new agreementLandholders who have an existing voluntary PLC agreement may be able to ‘upgrade’ to an agreement under the new BC Act, although they are under no obligation to do so.

The draft BC Regulation does not contain provisions that specify arrangements for upgrading existing agreements. Instead, this will be managed administratively. It is intended that the Trust and OEH have flexibility to take account of each landholder’s circumstances.

For example it is intended that:

» a landholder that currently has a wildlife refuge on their site under the National Parks and Wildlife Act 1974 (NPW Act) could seek to ‘upgrade’ all or part of their property to a conservation agreement under the BC Act

» a landholder with a conservation agreement under the NPW Act or a trust agreement under the Nature Conservation Trust Act 2001 (NCT Act) could ‘upgrade’ to a BSA.

For cases of upgrading to a BSA, there are some restrictions on eligibility specified in the draft BC Regulation and there may be requirements that reduce the number of credits generated when the site is upgraded to a BSA. The rules for these credit reductions are set out in the draft Biodiversity Assessment Method which has been released for public consultation.

Further details for Biodiversity Stewardship Agreements The BC Regulation sets out administrative and operational detail to support the role of BSAs in securing land through the Biodiversity Offsets Scheme(see the ESD submission guide).

Generally, the BC Act and draft BC Regulation adopt the framework used for the Biobanking scheme, with some minor changes.

Administrative matters for Biodiversity Stewardship Agreements The draft BC Regulation carries over provisions from the current Biobanking Regulation made under the Threatened Species Conservation Act 1995 (TSC Act) that a person or body corporate must be considered a fit and proper person to enter a BSA.

The draft BC Regulation allows the Minister for the Environment (or the Trust as the Minister’s delegate) to decline a request to enter a BSA in certain circumstances, for example if the application is unclear, missing required information, or the application fee has not been included.

The draft BC Regulation establishes the proposed fees for processing, and applying for termination or variation of a BSA. This fee structure has been streamlined compared to the existing fees for Biobanking.

Land eligible to be a Biodiversity Stewardship AgreementConsistent with the Biobanking scheme, the draft BC Regulation excludes certain land from being designated as a BSA site. This includes if previous, current or planned land uses are inconsistent with conservation, or the land is already a national park.

It is intended that the draft BC Regulation will continue to allow land to become a BSA where it is subject to an existing conservation agreement, provided it is not already being used as an offset. For example, if a landholder has voluntarily entered into a conservation agreement under the NPW Act (e.g. for altruistic reasons), the land can be secured as a BSA. Credits will be generated because the improved management associated with the BSA will result in additional biodiversity gains. However the number of credits the site can generate will be reduced to acknowledge that the site was already under in-perpetuity protection. The draft Biodiversity Assessment Method (which is currently on exhibition), sets out the details for calculating the reduced credit amount.

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A new provision under the draft BC Regulation will allow offset obligations created outside of the new Biodiversity Offsets Scheme (e.g. if a development consent issued before the BC Act commences requires a proponent to secure an area of their land in perpetuity as an offset) to be met by voluntarily entering into a BSA and immediately retiring any biodiversity credits that are generated. Before retiring the credits the proponent must pay into the Stewardship Payments Fund to cover the in-perpetuity management costs for the site. The existing Biobanking Regulation prevents using a Biobanking agreement in this way.

This change recognises the important benefits of using BSAs to secure an offset site. BSAs provide a framework to guarantee a site’s long term management, including a mechanism to secure funding and strong compliance measures. Requiring that the credits are immediately retired ensures that they cannot be used to meet any new offset obligations as well as the original obligation i.e. it prevents “double dipping”.

Streamlining the process to make minor variations to a Biodiversity Stewardship AgreementUnder the BC Act, a variation to a BSA requires a new biodiversity stewardship assessment report. The draft BC Regulation provides that this requirement does not apply if the changes to the BSA are minor or the Minister is satisfied that the variations will not significantly impact on the biodiversity values the agreement seeks to achieve (an example may include a change to the timing of scheduled pest control activities).

The requirements set in the BC Act that relate to seeking consent from and undertaking consultation with other interest holders in the land are not required for certain minor variations. This provides a more streamlined approach to managing BSAs, reducing costs and saving time. The varied agreement will be registered on the title of the land and recorded on the PLC Register.

Splitting of ownership There may be circumstances where the ownership of an existing BSA site becomes split between multiple people with each person owning a different part of the site. For example this may happen through inheritance arrangements. In the past, this has created complications in how management obligations and payments are divided between new owners, and there is a risk of protracted negotiations to revise the BSA.

The draft BC Regulation allows the Minister to vary the agreement and specify the division of payments and management actions between all owners. This can only happen after the Minister has notified the owners of the Minister’s wish to vary the agreement and considered any submissions made by the owners. This new provision will ensure the site can continue to be appropriately managed and the biodiversity outcomes will not be compromised.

Reimbursement associated with mining The BC Act includes consultation requirements prior to entering into a PLC agreement, to avoid potential land use conflict with activities such as mining. However, there may still be situations where mining activities occur on a PLC site and the PLC agreement is varied or terminated as a result (the requirements around this are set out in the BC Act). The BC Act does not prevent mining activities on land that is secured under a PLC agreement. The draft BC Regulation includes new provisions to support the reimbursement of establishment costs and other amounts in certain circumstances where BSAs and conservation agreements are varied or terminated due to mining or petroleum related activity.

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Financial incentives available for new private land conservation agreements Financial concessions and incentives have played an important role in encouraging participation in PLC in the current framework. Concessions and incentives will be continued under the new framework, as outlined below. This will be implemented through legislative changes.

Biodiversity Stewardship AgreementsIt is proposed that BSAs will be exempt from the payment of land tax, as is the case for Biobank sites. However, as BSA holders will receive regular, in-perpetuity payments to carry out management actions (as well as the opportunity to receive an additional one off payment on sale of credits), they will not be eligible for local government rate relief.

Conservation AgreementsIt is proposed that in-perpetuity conservation agreements will be eligible for land tax exemption. This is similar to the current approach to conservation agreements under the NPW Act.

Local council rate relief may be provided for land under an in-perpetuity conservation agreement. This relief would be available if the Minister for the Environment, on the advice of the Trust, determines that it should have a rate exemption.

It is anticipated that landholders who receive regular funding under a PLC agreement would not receive local government rate relief for the period of that funding. However, rate relief would be available for in-perpetuity agreements not receiving any payments.

Conservation agreements that are for a defined period of time, rather than in-perpetuity, are not proposed to be eligible for land tax exemptions or local council rate relief. The financial concessions are intended to apply only to landholders who establish in-perpetuity conservation agreements on their land.

Wildlife Refuge AgreementsTax exemptions/concessions or local government rate relief will not be available for wildlife refuge agreements, given these are entry level agreements that can be terminated at any time.

Proposed transitional arrangementsThe following savings and transitional arrangements will be implemented through legislative changes.

Biobanking AgreementsIt is proposed that existing Biobanking agreements will continue and will be managed in the same way as BSAs under the BC Act when it commences.

Applications that are received by OEH at the time of the legislation commencing can be finalised under the Biobanking legislation, for the first year of implementation. This transitional period recognises the considerable investment required to prepare applications.

Because the provisions in the BC Act for BSAs are based on the Biobanking scheme, there will be minimal impacts associated with this transition. In some cases, provisions in the new BC Regulation will provide more streamlined processes than exist under the Biobanking Regulation. For example, under the draft BC Regulation it will be simpler to make minor variations to BSAs (see above).

Other private land conservation agreementsExisting landholder arrangements used for private land conservation (other than Biobanking agreements) will remain valid and their existing governance arrangements will be saved. This includes conservation agreements and wildlife refuges under the NPW Act and trust agreements under the Nature Conservation Trust Act 2001.

The new offences under the BC Act will apply to these ‘saved’ agreements to ensure there is streamlined framework for compliance and enforcement. This should have limited practical implication for landholders.

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