The Australian and NSW governments work together where possible to ensure federal and state laws don’t duplicate planning processes.
To support this, the Australian Government allows us to evaluate the potential environmental effects of proposed actions under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).
This streamlines the development assessment process covering state and national environmental laws, while maintaining strong standards of environmental protection.
The Australian Government still makes the final decision on whether a project is approved under the EPBC Act. In making decisions, it uses the assessment report we prepare.
In March 2020, minor amendments were made to the agreement. All new eligible projects are assessed under the updated provisions.
For information on navigating the changes, visit the Environment and Heritage group’s Transitional arrangements.
For specific questions about biodiversity offsets, contact the Biodiversity Offsets Scheme support team and the Australian Government Department of Climate Change, Energy, the Environment and Water.
Frequently asked questions
The bilateral agreement started on 26 February 2015. In March 2020, small amendments took effect.
Legislative changes in NSW triggered the changes. These included the start of the Biodiversity Conservation Act 2016 and the Environmental Planning and Assessment Amendment Act 2017.
The amended agreement keeps the intent of the 2015 one with as few changes as possible.
As well as amendments to incorporate legislative changes, the amended bilateral agreement includes small changes to improve and simplify its operation. We describe the key differences below.
Projects under Part 5 of the EP&A Act are no longer included
Activities carried out under Part 5 of the EP&A Act will no longer be included in Schedule 1 of the amending agreement. These Part 5 activities are mostly done by or on behalf of public authorities. They require environmental assessment but do not require development consent from the department. For this reason, the bilateral agreement does not reduce assessment processes for this type of development.
This does not affect state-significant infrastructure, which will continue to be assessed under the amended bilateral agreement.
Actions in Commonwealth areas or by Commonwealth agencies may be eligible
The amended bilateral agreement includes assessment of actions on Commonwealth lands or those that Australian Government agencies are doing. This will only apply to actions where both NSW and Australian governments agree that the project is suitable for assessment under the bilateral agreement.
This amendment aims to address issues where major development happens across differing land tenures or where an Australian Government action requires NSW assessment.
The bilateral agreement applies to certain major projects under the NSW Environmental Planning and Assessment Act 1979 (EP&A Act). This includes state-significant infrastructure (SSI) and state-significant development (SSD) projects and modifications that require assessment and approval under the EPBC Act.
The amended bilateral agreement does not include applications made under Part 5 of the EP&A Act when an environmental impact statement is not needed or applications where local government is the consent authority.
Projects that happen on Commonwealth land (for example, a major road or rail project that crosses a segment of Commonwealth land) or that Australian Government agencies are doing may be eligible to be assessed under the amended bilateral agreement. This will only apply to actions where both NSW and Australian governments agree that the project is suitable for assessment under the bilateral agreement.
The Australian Government endorses the NSW Biodiversity Offsets Scheme as a state policy for setting EPBC Act conditions.
The scheme includes the:
- Biodiversity Assessment Method
- biodiversity credit system and the offset rules set out in the Biodiversity Conservation Regulation 2017.
The scheme has specific settings to ensure offsetting is in line with Australian Government requirements and that projects achieve like-for-like offsets for Australian Government-listed threatened species and communities.
Projects that have been approved under the EPBC Act after 24 March 2020 may be able to meet their offset obligations in keeping with the NSW offset rules.
You can discuss specific queries about transitional arrangements for biodiversity offsets with the NSW Department of Planning and Environment’s Biodiversity Offsets Scheme support team and the Australian Government’s Department of Climate Change, Energy, the Environment and Water.
The bilateral agreement allows the NSW Government to conduct environmental assessments on behalf of the Australian Government, removing duplication.
The key benefits for proponents result in:
- cost savings – there are potentially significant cost savings for projects assessed under a bilateral agreement. A single assessment reduces the costs of preparing 2 separate environmental impact statements. Proponents may be exempt from the fees associated with stage 2 and stage 3 of the Australian Government assessment and approval process
- less complexity and reduced time frames – the bilateral agreement ensures a project is assessed against a single set of requirements
- single biodiversity offset method – the bilateral agreement allows proponents to determine offset requirements against both NSW and Australian Government law through a single biodiversity offset method.
To view the bilateral agreement documents, visit the Australian Government Department of Climate Change, Energy, the Environment and Water website.
Visit the NSW Legislation website to view the Biodiversity Conservation (Savings and Transitional) Regulation 2017