THREATENED SPECIES CONSERVATION AMENDMENT (BIODIVERSITY CERTIFICATION) BILL 2010
Agreement in Principle
Debate resumed from 20 May 2010.
Ms PRU GOWARD
(Goulburn) [5.39 p.m.]: I lead for the Opposition in debate on the Threatened Species Conservation Amendment (Biodiversity Certification) Bill 2010. The Opposition will not oppose the bill; indeed, the Opposition has always supported the principles of biodiversity certification since the original legislation was introduced in 2004, in particular planning certainty associated with the process of certification. The Opposition notes that this amending bill makes a number of improvements to the way in which certification is achieved. For example, once an area receives a biodiversity certification the threatened species conservation and native vegetation Acts are switched off for planning purposes as those Acts relate to individual blocks of land. Moreover, certification will attach to land title instead of planning instruments.
This legislation will establish a biodiversity certification assessment methodology that is to be exhibited for 28 days prior to gazettal. I will deal with that point in greater detail shortly. The bill clarifies a Minister's powers to issue orders and ensure compliance. The process of certification has been adapted so that it will meet both State and Commonwealth requirements and 272 different reporting requirements have been condensed into a single assessment process. The bill will also ensure that the legislation will extend to cover part 3A projects.
The expected impact of the bill is that greenfield development sites in urban fringe areas and along the coast of New South Wales will be assessed and prepared for development in a much more straightforward and transparent manner. The Opposition believes that biodiversity certification is a huge improvement on existing processes that currently are beset by red tape and protracted block-by-block assessments. The Opposition also notes that the Urban Taskforce, the Total Environment Centre and the Ecological Consultants Association accept the purposes of the bill and do not oppose it.
Although the legislation is intended to reduce red tape, for small businesses, in particular, certification assessment methodology could be a confronting process. The final shape of the assessment methodology will not be available until it is gazetted, and therein lies another concern. The nature and detail of biodiversity methodology will be very important to enabling various parties to assess the risks associated with development of particular sites. The Opposition believes that small businesses particularly will find that to be a very difficult and expensive process whereas larger landowners and certain developers will benefit from an overall reduction in red tape.
The legislation will require good communication with land purchasers about the status of the individual blocks if it is to be effective. For example, it will not be clear to someone who purchased a block so as to admire the view of a stand of trees on the opposite block why bulldozing of the vegetation has been allowed, nor will the landowner opposite have appreciated the reason for the purchase. The purchaser will not feel good that the process of biodiversity certification allowed the vegetation to be destroyed; in fact, in those circumstances some distress is bound to be caused.
In anticipation of such difficulties, the Opposition urges the Government to adopt excellent communication strategies and assist land purchasers to comprehend the import of the certification process, particularly what it may mean for individual purchasers who are involved in a large-scale development that is being assessed. The methodology is a matter of concern in a number of respects. The Government should retain transparency and rigour in its methodology so that all parties may be confident about the effect of this legislation.
The bill confers enormous scope for the exercise of ministerial discretion. Ministerial discretion can be a very flexible instrument. My comments are in no way intended to be a reflection upon the current Minister or any other Minister, but ministerial discretion inherently attracts enormous pressures being exerted by development interest groups and environmental lobby groups. That should be borne in mind during debate on this legislation. I draw to the attention of the House a few examples to illustrate the point. The bill will enable the Minister to make rules with respect to the circumstances in which certification is to be assessed. The Minister may, in an order conferring biodiversity certification, specify any approved measures under biodiversity certification. I ask the Minister to note the term "may" that applies to the conferral, extension and review of certification.
The Minister may require a party to the biodiversity certification to comply with approved measures; but, by inference, the Minister also may not require a party to comply. The Minister may require a party to biodiversity certification to rectify any failure to comply with approved measures under biodiversity certification; equally, the Minister may not require rectification. The bill enables the Minister to enter into agreement with another person in connection with biodiversity certification and may require a person to make monetary contributions to the Minister—an unfortunate turn of phrase—to dedicate land or carry out certain works on land that are owned by that person. There is enormous discretion conferred upon the Minister by the legislation, and it is discretion of considerable long-term import. In the immediate term, it represents considerable financial significance to particular parties—for example, developers.
The Minister may, by order published in the Government Gazette
, suspend or revoke any biodiversity certification. The bill certainly provides for the grounds on which this action can be taken, but I again draw attention to the term "may", which implies that the Minister also may not. I could provide further examples, but I think the point has been clearly made. Inevitably there will be concerns about a process that relies as extensively as does this one on ministerial discretion. The Opposition states for the record that it is conscious of the dangers of ministerial discretion, particularly in matters of such great sensitivity in New South Wales. The Opposition urges the development of transparent processes and methodologies that attach to the Minister of the day for the purpose of ensuring that confidence in public administration, particularly relating to biodiversity certification decisions, is retained.
Overall, the legislation is a welcome clarification of the existing biodiversity certification legislation. As I have said, biodiversity certification has always been supported by the Opposition on the grounds that it is a more transparent and efficient process. It is a pity we did not have it in 1788. The Opposition welcomes the legislation under the terms I have outlined.
Mr DAVID HARRIS
(Wyong—Parliamentary Secretary) [5.48 p.m.]: It is with great pleasure that I support the Threatened Species Conservation Amendment (Biodiversity Certification) Bill 2010. The legislation will have huge significance in my electorate because it will enable some very important projects to move forward. That will create thousands of jobs and millions of dollars worth of investment. I congratulate the Minister for Climate Change and the Environment on the introduction of this bill. Reforms to the Threatened Species Conservation Act in 2004 and 2006 introduced innovative measures to protect and conserve threatened species and their habitats.
The Threatened Species Conservation Amendment (Biodiversity Conservation) Bill 2010 is aimed at improving the operation of the biodiversity certification provisions of the Threatened Species Conservation Act that were introduced in 2004. The amendments are necessary in the light of recent experience in administering the Act. The bill retains the highest environmental standard of improving or maintaining biodiversity values. However, some applications may not meet that standard. In such cases, the orthodox site-by-site development assessment and approval processes will continue to apply. Under this bill, the Minister's decision to confer certification must conform to codified rules contained within the assessment methodology.
To meet the improved or maintained standard, the assessment methodology requires that red flag areas—areas of particularly high biodiversity conservation value—must not be not directly impacted; and all acceptable impacts on biodiversity values, including indirect impacts, are offset in full through improving biodiversity values on land in other locations. Variation of the red flag rules will be possible only if all reasonable options to avoid impacts on red flag areas have been considered; no practical conservation management arrangements can be established to protect the red flag area, given its current ownership and the likely future costs; the red flag area is not significant from a regional perspective; the viability of biodiversity values on the red flag area is low; and all offset requirements are met.
The list of conservation measures that will contribute to improving or maintaining biodiversity values is broad and includes reservation of land under the National Parks and Wildlife Act, planning agreements, conservation agreements, trust agreements, biobanking agreements, biodiversity certification agreements, plans of management, the acquisition or retirement of biodiversity credits, and development controls. The assessment methodology requires a strong information base. It makes full use of geographic information system remote sensing and other State and local government databases. Where key information gaps are identified, survey work in the field will fill the gaps. Tapping into the knowledge and experience held within the wider community when preparing a biodiversity certification strategy is important. This is why applications for certification will be exhibited and comments invited.
Using offset measures is a final option. The assessment methodology establishes credible metrics to quantify losses and calculate the conservation gains for preferred offsets. It is important that all stakeholders have confidence in the assessment methodology. The methodology has been subject to preliminary review by representatives of conservation groups, the development industry and local government. It has also been trialled on the Central Coast and found to be practical in its application and effective in protecting the environment. The draft methodology is now available for wider review and comment. The Department of Environment, Climate Change and Water trialled the methodology on the Wyong Employment Zone and Warnervale Town Centre developments in March this year. These trials showed that biodiversity certification can protect biodiversity in strategic locations in a cost effective way.
Biodiversity certification proposals had been prepared for these sites in 2007-08, but they were not progressed because of the uncertainty created by the legal challenge to the Sydney Growth Centres certification. Wyong Shire Council is now keen to pursue biodiversity certification for both proposals, and I believe it will do so as soon as the bill is enacted and the methodology is gazetted. That is fantastic news for the people in my area. Biodiversity certification is all about achieving a balanced outcome, protecting the best remaining areas of vegetation and securing long-term, well-managed conservation offsets for the unavoidable impacts of urban and industrial growth. In a place as beautiful as the Central Coast, which is a growth area, we must get the balance right between protecting our wonderful environment and providing jobs and investment for the area. I am pleased that this bill is before the House.
I take this opportunity to thank the Minister for Climate Change and the Environment. In his current role, and when he was Minister for Planning, he has worked hard to get both the Warnervale Town Centre and Wyong Employment Zone developments to where they are now. I acknowledge the work of the former Premier, who announced the rezoning and visited the Central Coast. This bill is the next step in ensuring that these two fantastic areas can be developed in a sensible way not only for my community but also for the Central Coast and New South Wales. This year is the International Year of Biodiversity and we celebrate the value of biodiversity to our lives. It is timely for governments, planners, developers and the general community to better shape the places where we live and work to protect biodiversity for present and future generations. Biodiversity certification is a key tool in the future protection of biodiversity. I am pleased to commend the bill to the House.
Mr GEOFF PROVEST
(Tweed) [5.54 p.m.]: The object of the Threatened Species Conservation Amendment (Biodiversity Certifications) Bill 2010 is to amend the Threatened Species Conservation Act 1995 to establish new arrangements for the biodiversity certification for land. The amendments seek to improve the way certification is achieved and approved by the Minister for Climate Change and the Environment. There are a number of issues. Firstly, once an area has received biodiversity certification, the threatened species and native vegetation Acts are switched off for planning purposes on individual blocks of land. Secondly, certification will attach to land titles instead of planning instruments.
Thirdly, the bill establishes a biodiversity certification assessment methodology, which is to be exhibited for 28 days prior to gazettal. Fourthly, the bill clarifies the Minister's powers to issue orders and ensure compliance. Fifthly, the process has been adopted so that it meets both State and Commonwealth requirements—272 different reporting requirements have been condensed into a single assessment process. Finally, the bill extends the coverage to part 3A developments. Currently only part 4 developments are covered.
This bill is of major concern to the people of the Tweed, which is officially the fastest growing regional area outside Sydney, Newcastle and Wollongong. The current Minister has remarked to me that there must be something in the Tweed's water as planning decisions always become contentious issues. I think the people of the Tweed are regular visitors to the Land and Environment Court in terms of planning decisions.
Mr Frank Sartor: That's your influence.
Mr GEOFF PROVEST: It is not my influence at all. There is a perception that many planning decisions, and even this bill, have been forced on the Tweed with little or no consultation with the local people. One issue relates to compensative habitat. Five kilometres of the Tugun bypass project are located in New South Wales. The wallum sedge frog had been clearly identified, and the Queensland Government paid for compensative habitat in New South Wales. However, that decision has been overridden by the Minister and the land has now been placed in other hands. It is a great loss for our local town. People in the local town are afraid that the Minister's new powers will mean that their views and the beautiful nature of the Tweed will not be protected in the future.
I have gone to bat for the local people; I have visited the Minister on numerous occasions. Currently we have a number of part 3A developments and other planning issues waiting final approval and further consultation with the local people. That said, the bill will simplify the process, provided the Minister's powers and the methodology are clear and transparent. I heard the member for Wyong outline the process, but I would like to see further details of the process and what is finally gazetted to ensure that the rights of the local people are protected. The locals feel that the Government makes all the deals and then rides roughshod over them, whether it is new residential developments, shopping centres and so on. In many respects, the Tweed is another Gold Coast suburb; it is taking the population boom south, which raises many issues.
The Minister for Climate Change and the Environment will gazette the biodiversity certification methodology, which we have spoken about. I need more explanation. I hope the Minister in his reply will clearly outline what form that methodology will finally take because the people of the Tweed, whom I fully support, need openness and transparency from the Government. Recently the Premier encouraged Ministers, including the Minister for Climate Change and the Environment, to be clear and transparent so that the good people of New South Wales can see the process of government but, more importantly, be satisfied that the process is looking after their concerns and needs.
The bill will impact on greenfield development sites on urban fringes and along the coast. There are many greenfield sites in the Tweed. In the past the consent authority has been ripped away from council. Part 3A is supposed to relate to sites of State significance. A block of six units on top of Flagstaff Hill hardly qualifies for State significance but it has been included in a part 3A application.
Mr GEOFF PROVEST:
Mr Brad Hazzard: Is that under the current Minister?
Mr GEOFF PROVEST: Under the previous Minister.
Mr Brad Hazzard: Under the current Minister for Climate Change and the Environment?
I believe so. Larger States have larger job generation. While I support the cutting of red tape, strengthening the protection of and consultation with key stakeholders, my chief concern is that in the past there has not been a great deal of transparency. I guess that reflects on the current Premier, who has indicated she requires all Ministers to be more transparent to local people.
Mr Brad Hazzard:
She is saying it but she is not doing it.
Mr GEOFF PROVEST:
Yes, we are yet to see any substance.
Mr Brad Hazzard:
No substance at all. Absolutely empty rhetoric.
Mr Frank Sartor:
You are showing so much disrespect for the member for Tweed.
Mr GEOFF PROVEST:
No, that is not right.
ACTING-SPEAKER (Ms Diane Beamer):
Order! I agree with the Minister: disrespect has been shown to the member for Tweed. All members will come to order.
Mr GEOFF PROVEST:
I take on board the comments of the member for Wakehurst, who has shown a deep interest in the stakeholders in the Tweed. He understands their concerns and looks to the future for sustainable development, not just the local people being ridden over roughshod. I am very appreciative of his support for the people of the Tweed.
Mr Brad Hazzard:
That is why we are getting rid of part 3A.
Mr GEOFF PROVEST:
The Opposition is getting rid of part 3A because that is one of the chief concerns of local people in the Tweed when they have gone to the Land and Environment Court over these matters. In 2007 the current Minister for the Environment, who was the Minister for Planning, and the Government lost a Land and Environment Court case over a proposed bug farm. I was at a Cabinet community meeting and heard the Minister for Planning say he would go back to Sydney, change the law and overcome it. Hey-presto, that is exactly what happened. Under new laws the bug farm is going ahead. The community fears the Government is not listening to them because when they put up legitimate arguments in relation to threatened species and part 3A their concerns are tossed in the rubbish bin. That is not right, and that is why I am very impressed by the shadow Minister for Planning because finally commonsense will be brought to the table. I do not oppose this bill.
Mr Frank Sartor:
You have obviously got nothing substantial to say.
Mr GEOFF PROVEST:
I believe the rights of the local people are substantial, something that the Minister for Climate Change and the Environment has forgotten over 14 years. I will not sit idly by and watch this inept Government ride roughshod over the good people of the Tweed.
Mr JOHN AQUILINA
(Riverstone—Parliamentary Secretary) [6.03 p.m.]: I congratulate the Minister for Climate Change and the Environment on the introduction of the Threatened Species Conservation Amendment (Biodiversity Certifications) Bill 2010 which has been designed to deliver a better and more efficient framework for biodiversity certification. It seeks to provide legal certainty to an innovative mechanism for conserving biodiversity within a landscape context. In introducing the bill, the Government acknowledges the need for legislative amendment that has arisen following a challenge to the biodiversity certification of State Environmental Planning Policy (Sydney Region Growth Centres) 2006.
I add my personal support to this legislation following my experiences as a former Minister and in representing the electorate of Riverstone. Recently the Minister for Planning, the Hon. Tony Kelly, MLC, released approximately 1,300 hectares in my electorate for residential development. We needed to address the fact that significant parts of that area were Cumberland Plain woodland which was worthy of, and required, conservation. When the Minister for Climate Change and the Environment was Minister for Planning he visited my electorate and looked at issues affecting the Cumberland Plain woodlands and devised a solution to enable this area to be released. That consideration of the Cumberland Plain woodlands delayed the process for many years.
When I was Minister for Education and Training I held up, and in some cases totally aborted, a number of applications for the construction of schools because of considerations in relation to the safeguarding of threatened species. The construction of one school was stopped because a snail species was discovered. The extension of a school was restricted because of a species of bat. In the beautiful Hawkesbury valley, part of which is in my electorate, time and time again many issues arise in relation to development along the Hawkesbury River. A balance needs to be found for orderly development and the preservation of various species. This legislation will make that process so much easier.
By introducing this bill the Government acknowledges the need for this legislative amendment. All too often we find ourselves in a divisive debate about species conservation and economic development, and about whether legislation is detrimental to the taxpayer or landowner. A famous example is the green and golden bell frog, a State and federally listed threatened species that became a symbol of Sydney Olympic Park and gained international and local support. However, there is antipathy in the development industry to threatened species, as sometimes they cause substantial hardship to developers and are often perceived as an impediment to development and economic investment. It is a similar story with threatened species and ecological communities across New South Wales.
In simple terms, biodiversity certification is the process of identifying and protecting areas of high biodiversity value, accepting some impacts on biodiversity where this is considered essential to deliver social and economic benefits like homes and jobs, then offsetting the unavoidable impacts through secure and credible mechanisms such as the reservation and improvement of land under the National Parks and Wildlife Act or BioBanking. It is a way to provide a more orderly and secure process which can give some degree of confidence to developers while at the same time ensuring that the biodiversity of our environment as well as threatened species within that environment are not endangered.
The benefits of certification are that these decisions will be made early, transparently, and on a scale where genuine benefits can be realised. This will give greater certainty to those who are going to invest large sums of money and put in a lot of planning effort and will enable them to make an early assessment of biodiversity and threatened species. The benefits include the streamlining of development application and approval processes, replacing the need to undertake further threatened species impact assessment once strategic planning has been completed. I am sure this will be welcomed—well and truly—by the community at large.
The new operating framework will assist local councils and other planning authorities to develop strategic approaches to conserve biodiversity. The bill provides legal certainty to the process of deciding whether an application for biodiversity certification will improve or maintain biodiversity values by requiring decisions to conform to an assessment methodology. What we see here is a process which is far more transparent than it was previously and which provides secure guarantees at a much earlier time in the planning process than was the case in the past. As indicated in the agreement in principle speech, State infrastructure contributions may be used to fund biodiversity offsets. Monies collected and expended under the levying scheme will be directed to securing the required environmental outcomes.
The bill contains appropriate cost recovery provisions, including an ability for planning authorities to recover costs associated with preparing an application. This is a reasonable approach through which overall costs for landowners, developers and ratepayers will be reduced. I know that this will be generally approved and applauded. These provisions ensure that, where appropriate, developers and landowners who enjoy the benefits of biodiversity certification contribute fairly. The bill will provide stronger safeguards to rectify a breach of certification and any associated agreement. Further, the bill will create a new form of agreement—a biodiversity certification agreement. The purpose of this agreement is to formalise arrangements between the Minister and any person, including a planning authority, responsible for delivering a conservation measure.
To ensure transparency, the bill and associated regulation will include public input at various stages, including development of the assessment methodology and exhibition of an application for biodiversity certification. There will also be a requirement to publish orders conferring biodiversity certification in the Government Gazette, to make sure it is made public, and to keep a public register of all orders, including the details of any modifications, suspensions and revocations. Under this framework, the decisions of Government will be more transparent and robust; they will come in a more timely fashion and in a more appropriate way than has been the case in the past. There will be more guidance on the use of conservation offset measures, stronger enforcement and clearer processes for community engagement. I congratulate the Minister on the introduction of this legislation and I commend the bill to the House.
Mr ROB STOKES
(Pittwater) [6.13 p.m.]: I note that one of the comments made by the member for Riverstone related to the enduring conflict between proponents of development and protectors of the environment, and I think one of the real issues in relation to leadership by any Government in this place needs to be finding an avenue to resolve this perennial conflict. I do not think the Government to date has proven itself capable of or up to this task. I believe that this bill is what resolving the conflict is all about, but with regard to much of the legislation introduced by this Government—more than 100 separate amendments to the Environmental Planning and Assessment Act in 16 years of the Labor Government being one example—what we have seen is defenders of the environment being muzzled and their rights of appeal muzzled in favour of development. In the interests of cutting red tape we have ironically seen more and more red tape being added to make the process even more complex than it was before the best objectives of reducing red tape were raised.
Rather than looking at environmental matters as matters of conflict between those who seek to develop at all costs and those who seek to conserve at all costs, we need to change what we are talking about. One camp was pitted against the other in old-fashioned traditional models, but since 1992 we have had an understanding that we must move towards a model of development that is ecologically sustainable, and I note with some dismay that none of the Government members so far have referred to the principles of ecologically sustainable development, which presumably are and should be behind this bill.
Mr Frank Sartor:
It is in the Act.
Mr ROB STOKES:
As the Minister says, it is in the Act. As a result, it is important that we make reference to the fact that this is what the bill and the amendment should be about achieving. Ecologically sustainable development refers to a type of development that meets the needs of the present generation without compromising the needs of future generations to have an equal, if not higher, standard of living. That is what we are seeking to achieve and that is what biodiversity certification should be about. Let us think about what we are talking about. We are talking about biodiversity values of an ancient landscape of probably one of the most diverse continents in terms of biodiversity in the world, a precious and beautiful environment that has been cared for by generations of indigenous inhabitants, which we are lucky enough to have inherited in amazing condition. It is important to realise that that is what we are talking about certifying. The biodiversity value of this continent is incalculable and deserves protection for that reason alone.
To put a personal spin on this, the reason I am passionate about it is that I grew up being able to go on surfing trips along the New South Wales coast and to camp along the absolute perfection of the New South Wales coast, and I want my little boy to be able to benefit from the same experience.
Mr Frank Sartor:
And my little boy.
Mr ROB STOKES:
I want the Minister's little boy to benefit from the same experience as well.
Mr Frank Sartor:
And my little girl.
Mr ROB STOKES:
And I should not exclude my daughters, one of whom turned two today. Those are really defining experiences of being Australian. We are so lucky in this day and age to have those opportunities, and we need to be careful to look after the store of remaining natural bushland along our coastline, whether it be in public hands or in private hands. That puts some context to what this debate should be about.
Moving to the provisions of the bill, biodiversity certification was introduced in 2004 by this Government, the objective being to allow a holistic approach to environmental planning rather than focusing on each block so that biodiversity certification could be master-planned by precinct. I note that Government members have said there have been problems with the system. That is true. But they introduced the system, so basically they are agreeing that there are problems in the bills that they introduced.
Mr Frank Sartor:
It is innovative policy and it is important to refine innovative policy.
Mr ROB STOKES:
The Minister says that it is important to refine innovative policy, and I will accept that. This is innovative—I will give him that—and that brings with it danger. From experience, this Government's actions on development matters in terms of riding roughshod over the interests of local communities and endangering environmental values means that "innovative" is a word we need to be very careful of, and we need to keep a very watchful eye on this Government in relation to these types of matters.
Looking at the substance of and the basis for the bill, as the Minister outlined in his agreement in principle speech, once an area receives a biodiversity certification the threatened species and native vegetation Acts are deactivated in relation to planning assessment for individual blocks of land within the area that has received certification. The certification will attach to the land title, the Torrens title, rather than the environmental planning instrument in relation to the land. The bill also talks about establishing biodiversity certification assessment methodology and the process for gazetting the methodology.
The bill also outlines and clarifies the Minister's powers to issue orders and ensure compliance. In that respect it also substantially extends ministerial powers over these matters, and that is an issue of some note. I also note that the process has been adapted in order to fit in with both Commonwealth and State requirements. That will ensure all the different reporting requirements are condensed into a single assessment process. As other members have already indicated, it extends coverage to part 3A projects. Currently it only covers part 4 projects. This again exposes how complex and unwieldy the planning system has become in this State. Before this Government came to power we had part 3, part 4 and part 5, and now we have part 3, part 3A, part 4, part 4A, part 4B, part 5, part 5A and part 5B. It has become a mess.
Mr ROB STOKES:
Mr Frank Sartor: There are a lot more than that. There are 15 or 20 parts of the Act.
I am talking about the operative parts of the Act, the main parts of the Act, as the Minister knows. Who can apply for certification? The bill provides that the applicant for certification will be the relevant department, which is obviously the Department of Planning, or the relevant local council. The role of the Minister will be to gazette the biodiversity certification assessment methodology, which I will come back to in a moment, approve certification and enforce measures in the certification, such as the contentious BioBanking agreements, preservation of land as open space or in national parks or other forms of reserved land, and the State infrastructure contributions to be paid into the environmental trust.
I want to raise a couple of specific issues. I have already referred to the extension of ministerial powers, which got the Minister a bit agitated. I refer to proposed section 126ZR (d), which says that biodiversity certification may be modified on the Minister's own initiative. A number of the paragraphs are non-contentious but paragraph (d) is contentious. It says biodiversity certification may be modified if the Minister is of the opinion that certification no longer improves or maintains biodiversity values. There is no independent assessment, it is just the Minister's opinion. With due deference to the Minister in the chair, the Minister's opinion is not necessarily worth a great deal by itself, particularly given that Ministers may change. Frankly, the Minister's opinion is not good enough when it comes to unilaterally modifying biodiversity certification.
One of the main arguments put forward against this bill is that the assessment methodology, which is really the main issue in relation to biodiversity certification, has not yet been finalised. We are being asked to pass legislation relating to an assessment methodology when we do not know for sure what that will be. Under this bill there will be a reduction in the level of biodiversity certification, in as much as not as many approvals will be needed. That is a sensible idea. The idea of certifying each lot individually is a colossal waste of time and money and is unnecessary. But concomitant with a decrease in the number of approvals we should intensify the standard of biodiversity certification. If we are not going to do it lot by lot but in a holistic manner it is very important that the level of certification be even more rigorous and higher, and in one sense exponentially more rigorous because its impacts are exponentially more important and far-reaching. Once we have altered a natural environment we cannot restore it; we cannot put it back the way it was.
We have been so fortunate to be handed down an amazing inheritance from the indigenous people and our own forebears. It is very important in making decisions about the future development of lands, in particular lands that have not previously been subdivided—I am not talking so much about former farming land or industrial land or land that has been used for another process; I am talking about land in its natural state—that development on these sites be subject to rigorous certification. I make that point because the level and methodology of certification that the bill will allow is not known to us now and will be determined by the Minister and subsequently gazetted.
The question for the Minister, and it is a difficult question, is how you translate biodiversity values into tradeable units. How do you put a value on the environment? It is a difficult question and I know the Minister appreciates that. I urge the Minister to take that seriously into account because once decisions are made, particularly about subdivision of pristine locations that have not been subject to development in the past, we cannot go back. It is important we get it right in the first place.
Mr MATT BROWN
(Kiama) [6.25 p.m.]: I am pleased to support the Threatened Species Conservation Amendment (Biodiversity Certification) Bill 2010. I congratulate the Minister, his staff and the department on their forward thinking with this legislation and I am pleased to hear that the Opposition does not oppose the bill, although after listening to the member for Pittwater one would gather otherwise. I would like to address some of the points that the member for Pittwater raised. He alluded to the fact that there were not strong environmental outcomes. I will list three that the bill provides. Firstly, the bill delivers the highest environmental standard. It improves and maintains environmental outcomes. Secondly, the methodology establishes clear thresholds to protect the most important environmental assets. Thirdly, the approach based on doing the assessment up-front gives the planning authority the greatest opportunity to balance the impacts of development with conservation measures such as BioBanking agreements, the dedication of land to national parks, and the establishment of flora and fauna corridors across the landscape.
The New South Wales Government has continuously had a very proud record of being a very strong supporter of the environment. Members need only look at the number of national parks that have been established under a Labor administration. The Government has properly balanced the needs of our environment with the pressures of human activity. The bill provides a robust framework for biodiversity certification. It provides greater certainty for the community and councils as well as for developers. It also ensures that legislative objectives to improve and maintain biodiversity values are achieved.
Biodiversity certification can protect biodiversity and build resilient ecosystems, eliminate unnecessary red tape and facilitate significant land release proposals. It delivers conservation outcomes, not reports and studies. The people of Kiama that I represent do not like being bamboozled by a whole host of reports and studies. They want to see practical outcomes that do the right thing by balancing the needs of the environment and the pressures that the human population creates. If the new system in the bill had been used in the North Kellyville precinct of the Sydney growth centres it would have replaced 272 assessment reports with one. That would have saved around $2.6 million. I am happy to give another example.
Mr Michael Richardson: Absolute rubbish!
ACTING-SPEAKER (Mr Thomas George): Order! The member for Castle Hill will have an opportunity to contribute to the debate.
Mr MATT BROWN: In 2003 a development application was submitted to Blacktown City Council for a 34-lot subdivision. It also involved the dedication to council of 1.5 hectares of Cumberland Plain woodland for addition to an adjacent council reserve. Over the next five years the proposal was subject to three appeals to the Land and Environment Court, all of which related to threatened species and endangered ecological communities. The final decision was made in December 2008, more than five years after the development application was lodged. Ultimately the court issued consent based on a largely identical development and consent footprint.
An additional requirement was placed on the proponent to rehabilitate 12 hectares of land within western Sydney parklands. This is not an effective decision-making process in anyone's terms and, therefore, I am surprised at the noises being made by Opposition members. Biodiversity certification addresses this complexity in the current system. Providing a no-surprise assurance to landholders and developers, it reduces red tape while achieving real conservation outcomes. It not only removes the need for individual development applications to be subject to threatened species impact assessment; it also clearly sets out the costs that developers are asked to bear to protect priority conservation areas, which will provide greater upfront certainty.
In certified areas that meet the maintain or improve test the bill will switch off site-by-site assessment of threatened species for developments and activities approved under parts 3A, 4 and 5 of the Environmental Planning and Assessment Act. The bill will also exclude land from the operation of the Native Vegetation Act. These provisions will substantially reduce red tape, again saving money and time and improving housing affordability as well as maintaining environmental outcomes. The new legislative framework will also provide a platform for pursuing strategic assessments under the Commonwealth Environmental Protection and Biodiversity Conservation Act, again streamlining the assessment processes of the environmental legislation of both the New South Wales and Commonwealth governments, which in turn will again save time and money and encourage economic investment in our State.
The Government wants to deliver the best possible services to the people of New South Wales, and cutting red tape, speeding up planning decisions, supporting business investment, improving housing affordability and providing better environmental outcomes is the right way forward and the best way to do it. That is why these amendments are necessary and that that is why I commend the bill to the House.
Mr MICHAEL RICHARDSON (Castle Hill) [6.31 p.m.]: As a number of members before me observed, the overview of the Threatened Species Conservation Amendment (Biodiversity Certification) Bill 2010 is as follows:
The object of this Bill is to amend the Threatened Species Conservation Act 1995 (the principal Act) to establish new arrangements for the biodiversity certification of land. Under the new arrangements, the Minister administering the Threatened Species Conservation Act 1995 (the Minister) may, on application by a planning authority confer biodiversity certification on specified land.
The Minister may confer biodiversity certification only if the planning authority has a biodiversity certification strategy, which is a policy or strategy for the implementation of conservation measures that ensure that the overall effect of biodiversity certification is to maintain or improve biodiversity values.
That much is clearly understood by all those who have spoken in debate on the bill, and it is unarguable. As the member for Goulburn said, Opposition members support the concept of biodiversity certification. But what the Minister did not refer to in his agreement in principle speech was the impact of this bill on some decisions that have been taken in the Land and Environment Court, in particular, the August 2009 Land and Environment Court decision over Catherine Hill Bay. The Minister is probably still smarting over that decision. As Justice David Lloyd said in his judgement:
ACTING-SPEAKER (Mr Thomas George):
Mr Sartor "committed himself" to approving the multi-million dollar project because he had previously negotiated and signed a contract with the developer, Rose Group, which would swap his approval for 300 hectares of conservation land.
He seemed to be enamoured with the whole proposal of a land bribe in exchange for rezoning and associated development; again it is to be noted, before receiving and considering the Director-General's report.
Order! The Minister will have an opportunity to reply to the debate.
Mr MICHAEL RICHARDSON:
I seem to have struck a raw nerve. Justice David Lloyd also said:
Far from bringing an impartial mind to his determinations, the minister committed himself to bringing a partial mind to the applications.
We really have to ask ourselves whether this is an environmental bill, or whether it is Minister Frank Sartor getting square with Justice Lloyd, saving face and righting the alleged wrong that was done to him. Members might remember that Catherine Hill Bay was a part 3A development approved by the Minister himself. According to Justice Lloyd, the Minister prejudged the issue. He was determined to approve the Rose Group application without going through due process. That will not be a problem if this bill becomes law. Under section 126 (1) the environmental assessment requirements for the approval of a project or a concept plan for a project under part 3A of the Environmental Planning and Assessment Act do not require an assessment of the impact of the project on biodiversity values if the project is carried out on biodiversity certified land. The key words here are "or a concept plan for a project".
The whole thrust of Justice Lloyd's decision was that the then Minister for Planning, the member for Rockdale, had prejudged the issue before going through the part 3A assessment process. I might add that not just Catherine Hill Bay was affected by that decision; the decision affected also the Hardie Holdings Sanctuary Villages development near Cessnock and other Hunter Valley sites, such as Huntlee near Branxton, which was signed off by Mr Sartor's successor—none other than Kristina Keneally, the current Premier. That decision over Huntlee was challenged by the Sweetwater Action Group, which challenged the planning process in the Land and Environment Court and forced the Government to back down because it had used a land-swap memorandum of understanding—exactly the same mechanism that was used in Catherine Hill Bay and in Gwandalan.
We can understand how important this piece of legislation is to Minister Sartor, who is in the chair. When the Minister says that the bill "reduces administrative processes and achieves real cost savings" he really means for the Government's mates. The Minister cannot say—and certainly the member for Kiama cannot say—that this is groundbreaking legislation. I want to take him back to 1 September 2004—salad days for Labor: Carr was in his heaven and all was right with the world. A Minister named Bob Debus was speaking on the second reading of a bill entitled the Threatened Species Legislation Amendment Bill. This, in part, is what he had to say:
One of the most effective ways to achieve long-term protection for threatened species is through strategic planning that ensures conservation while providing new residential areas to house future generations. The present law does not systematically build in the conservation of threatened species at the earliest stage of the planning process, when the rules that decide the future uses of the land are written. Rather, threatened species are too often considered very late in the process, only after an individual development application has been submitted and sometimes even after it has obtained all the other consents required to proceed.
The bill will improve this situation by allowing the Minister for the Environment to certify an environmental planning instrument that promotes conservation of threatened species and biodiversity more generally. In other words, threatened species conservation will be considered, and even more importantly satisfactorily resolved at the beginning of the planning process when the local environmental plan, regional environmental plan or other planning instrument is being prepared.
The question that has to be asked is: What has gone wrong? What has been happening in the developers' paradise of New South Wales? What pressing issue has come forward that necessitated the introduction of yet another piece of threatened species legislation? The Minister would have us believe that it was the 272 assessments carried out in north Kellyville, which cost $2.6 million more than they should have because there was not a single assessment report. But the growth centres State environmental planning policy was gazetted in July 2006 and the then Minister Assisting the Minister for Climate Change, Environment and Water, Verity Firth, conferred biodiversity certification on it in July 2007.
A legal case of the Environmental Defender's Office challenging the conferral of biodiversity certification on the growth centres State environmental planning policy was pre-empted by the passage of the Threatened Species Conservation (Special Provisions) Act 2008, which retrospectively acted to guarantee the validity of this certification. I might add that the Opposition strongly opposed that piece of legislation because it does not support retrospective legislation in any shape or form. This is what the then Minister for Emergency Services and Water—the member for Toongabbie and future Premier Nathan Rees—had to say when introducing that bill in this place:
Biodiversity certification removes the need for each separate development in those growth centres to comply with the threatened species assessment and concurrence provisions under the Environmental Planning and Assessment Act 1979 because biodiversity assessment has occurred instead at the landscape level.
It provides a green tick for the release of new land to market with the first stage of releases to provide a minimum of 40,000 new homes. The biodiversity certification package ensures protection for 2,000 hectares of bushland within the growth centres. More than 50 per cent of all high-quality native vegetation will be protected, even as more than 200,000 people move into the areas over the next 25 years.
Remarkably, the package delivers the most outstanding conservation investment program ever associated with development in Western Sydney. Developers will be required to contribute towards a $530 million program over coming decades to secure high-conservation value bushland to build a string of reserves, national parks and conservation agreements within and outside of the Sydney region growth centres.
One would think we never had these debates in this place and that the whole concept of biodiversity certification as promoted by the Government was a completely new idea. We have had two debates on the issue over the past six years. I might add that biodiversity certification replaced a highly controversial green belt in North Kellyville and other parts of the north-western growth centre that quarantined a large area of land because of its allegedly high conservation value, including in my electorate a two-hectare paddock with a house on it. High conservation value indeed! The explanatory note for the bill states that while the new arrangements replace existing arrangements for the biodiversity certification of environmental planning instruments, the existing arrangements will continue to have effect, with some modifications, in relation to the Growth Centres State Environmental Planning Policy, which rather makes a nonsense of the Minister's assertion. Meanwhile, and despite biodiversity certification having been in place for some years, the amount of extant Cumberland Plains woodland continues to fall.
The document "Native Vegetation Maps of the Cumberland Plains" published by the National Parks and Wildlife Service in 2002 estimates there are 11,054 hectares of Cumberland Plains woodland in reasonable condition and 13,917 hectares in poor condition with a canopy cover of less than 10 per cent. Between them, the two groups represent 22.5 per cent of original cover. Of course, if the poor condition woodland is built on, that is, destroyed, which seems a likely consequence of this legislation, just 8.8 per cent would be left. That represents about one-twelfth of what was here before Europeans arrived. I regret to say that the bill is likely to result in destruction of more than half of the remaining Cumberland Plains woodland, which has been classified recently by the scientific committee as a critically endangered ecological community.
That demolishes the idea that this is all about Sydney growth centres. The bill is in fact mainly about land swaps in the Hunter. The Government trumpeted the original biodiversity certification scheme in 2004 as the answer to a developer's and a conservationist's prayers—the equivalent of the Grand Unified Theory of particle physics. The Government now has come up with yet more amendments to the original amending bill, which, if I remember correctly, had no fewer than 61 amendments introduced by the Government. This bill provides for the certification of land rather than of environmental planning instruments, which, according to the Minister, ensures that the benefits of certification are recognised regardless of which planning controls apply.
In the brave new world of this bill only planning authorities will be able to make an application for certification. Rather ominously, they include the Minister for Planning. The bill provides also for a more flexible range of compliance mechanisms where a party to a biodiversity certification agreement fails to deliver. The only penalty previously was to revoke or suspend certification. Under the proposed changes a party to an agreement can be ordered to carry out work they previously agreed to perform, or either the description of the certified land or the approved measures under the certification can be altered. The bill lays down also the ground rules for an application for biodiversity certification, but these effectively were in the previous Act and in guidelines provided by the department. Therefore, it is difficult to see how this makes the major leap forward suggested by the Minister.
The other change the Minister has made much of is defining the term "improve or maintain biodiversity values". I can find no definition of this term in the bill. Instead, it is left to the Minister to make rules about biodiversity certification and whether it improves or maintains biodiversity values. I acknowledge that the Government has released a detailed draft methodology for biodiversity certification, but under proposed section 126S (3) those rules must comply with any requirements of the regulations, which, in turn, are approved by the Minister. That is a long way from the legislation defining the term "improve or maintain biodiversity values". Of course, it is always possible that this bill was introduced because BioBanking simply is not working.
Only one BioBanking site has been registered since the Act became law more than three years ago. That is scarcely going to speed up development in western Sydney or give the improved environmental outcomes that Minister Bob Debus talked about. BioBanking has some similarities to the bill, but with some important differences. The owner of a BioBanking site and the developer of another parcel of land that needs biodiversity credits generally would be different people or companies. This means that the developer buys from another person the credits needed to offset development of his land without having to prepare a species impact statement. Theoretically, he can choose from where those credits come—except, of course, there is no choice because there is only one almost-registered BioBanking site in the whole State. This bill was supposed to usher in a brave new world of land improvement and improved environmental and development outcomes.
Part of the money the developer pays the BioBanking site owner goes into a trust fund—there will not be very much in it—which pays the landowner an agreed sum for the maintenance and regeneration of his land. The BioBanking credits are created only through the management actions taken on the BioBanking site. That point usually is not clearly understood. Under the scheme proposed by this bill, a biodiversity certification strategy is put forward that identifies the land proposed for biodiversity conservation and outlines the proposed conservation measures to be taken. Therefore, the conservation land and the management actions to be taken on that site are taken into account. The bill actually provides for a revised and simpler form of BioBanking. The bill kills two birds for the Government: it satisfies the Minister's thirst for revenge and it provides an alternative mechanism to the floundering BioBanking scheme for developing environmentally sensitive land. As the member for Pittwater said at considerable length, it will not protect the critically endangered Cumberland Plains woodland or, indeed, many other endangered ecological communities from destruction.
Mr FRANK SARTOR
(Rockdale—Minister for Climate Change and the Environment, and Minister Assisting the Minister for Health (Cancer)) [6.46 p.m.], in reply: I acknowledge the constructive contributions of the members representing the electorates of Tweed, Goulburn, Pittwater, Wyong, Riverstone and Kiama. I appreciate their comments. It is a pity I cannot say the same for the member for Castle Hill, who tried to use the bill to score cheap points but did himself absolutely no credit. I shall refer to his comments shortly. The member for Goulburn raised a range of issues. In regard to the potential complexity for small business, the provisions in this bill are for planning decisions on a landscape scale. It is envisaged that the proponents under biocertification will be the Department of Planning and local government. Therefore, small business will be spared having to deal with these issues at the stage at which they usually become involved.
Communication to landowners will be done in two ways. Where a piece of land is subject to biocertification, this will be reflected in section 149 certificates in the same way environmental and other zoning decisions are reflected. In addition, there will be a public register of all biodiversity certifications. That issue will be well considered. The member for Tweed raised the issue of consultation. This bill requires public notification for 30 days of all applications for certification, and requires the planning authority to report to the Minister on how relevant submissions have been addressed.
The member for Pittwater raised the issue of unilateral modification of certification. This provision is only relevant once a compliance issue with a certification proposal is in place. This is articulated clearly in the new section 126ZR, which states:
Biodiversity certification may be modified on the Minister's own initiative:
(a) if the approved measures under the biodiversity certification have not been complied with to the satisfaction of the Minister—
I would have thought that was sensible—
(b) if the Minister is of the opinion that a party to the biodiversity certification has failed to comply with an order made by the Minister in respect of the party under this Part, or
(c) if the Minister is of the opinion that any agreement entered into in connection with the biodiversity certification has been contravened, or
(d) if the Minister is of the opinion that biodiversity certification no longer improves or maintains biodiversity values, or
(e) in any other circumstances prescribed by the regulations.
This provision deals with resolving non-compliance issues. The member for Pittwater also raised the issue of measuring and interchanging biodiversity values. New South Wales leads Australia in the development of the science of measuring biodiversity values. This science has been peer reviewed and accepted by conservation and development stakeholders. The science is recognised as the best in Australia by the Hawke review of the Australian Government's Environment Protection and Biodiversity Conservation Act, which recommended that the New South Wales approach to measuring and trading of biodiversity values be adopted nationally. Significantly, those facts deal with the points raised by the member quite convincingly.
I will deal quickly with the appalling contribution to the debate made by the member for Castle Hill, who tried to use the forms of this House to discuss a judgement of the Land and Environment Court that reviewed a planning decision on which I had signed off as the Minister for Planning. The court overturned that planning decision. Clearly the member for Castle Hill does not understand the judgement, the technical issues involved or the fact that the judgement is based much more on the wording of certain technical legal agreements and other factors than on anything done by me. The process adopted for the Catherine Hill Bay project involved a high-level independent panel that rejected the first redevelopment application and imposed conditions, reforms and changes to be made prior to approval being granted. The land transfer and zoning decision was not overturned by the court.
It is fair to say that the wording of the judgement was injudicious, inappropriate and absolutely uncalled for given that, as Minister, I was not called to give evidence about the rationale I applied when the decisions were made. All the decisions I made were well documented and all were supported by advice. I can also say it is clear to me that senior members of the Sydney bar share my views on the judgement. The concept of one small component of biodiversity, land transfer and land offsets, was captured by the legislation, but this amending bill has nothing to do with those matters. This legislation is all about improving biodiversity certification and ensuring that certification attaches to the land rather than to a planning instrument. That will create a great deal more certainty and, appropriately, a more robust and more objective methodology.
It is true that it is possible to provide for land offsets and land exchanges. That is a good thing because it means that those matters will be considered at an environmental level instead of being caught up in a planning process and in confused legal interpretations that seem to be emerging in this area. In many respects those amendments are good provisions.
It was suggested during debate that there is no definition for "maintain" or "improve". The methodology for assessment is the definition. The principles are enshrined in the Act. The member for Castle Hill referred to the failure of BioBanking. I point out that BioBanking has commenced already. I announced the first scheme a month ago. It is a very good scheme whereby the Catholic Church is committed to conserving some very important land. There is an appropriate fund to facilitate the scheme.
The member for Castle Hill also suggested during debate that the objects of the bill are designed to introduce cost savings for the Government's mates, satisfy the Minister's revenge, and to save BioBanking. If that is the case, why is the Opposition supporting the bill? Clearly, the Opposition knows that this is good and sensible legislation. It represents refinement of a complex area of law. The member for Castle Hill does himself absolutely no credit with his comments.
Conservation and industry groups agree that it is better to manage the biodiversity impacts of development on a landscape scale rather than have land and the environment suffer death by a thousand cuts through the tyranny of small decisions. It is more ecologically sustainable to establish long-term, well-managed conservation offset areas for impacts on environments in locations that are free from the threats of future development or incompatible neighbouring land use than by incremental decision making. It is also more cost-effective to have a single, up-front assessment rather than multiple development assessments. It is critical to provide security—security of conservation gains and security for development. This bill will achieve all those things.
With increasing pressure to release land for residential, commercial and industrial use, it has never been more important than now to get ahead of the game and ensure that areas of high conservation value are not lost. It has never been more important than now to have a planning approach that puts biodiversity conservation fairly and squarely at the centre of land-use decisions, alongside social and economic considerations, rather than at the tail end of the planning process when expectations are established and options for change are constrained. The bill will achieve those things. The bill establishes a process that delivers better environmental outcomes, reduces unnecessary administrative processes, removes subjectivity from decision making and gives greater certainty to developers. We know it works because we have trialled it and costed it.
I thank the member for Kiama for his supportive speech and for outlining the economic benefits of the bill. For the first time we will have a transparent and repeatable methodology that operates at the landscape level. It will be a methodology that will determine whether the sum of future development impacts, and future conservation gains, will maintain or improve biodiversity outcomes. I also thank the member for Riverstone, the Leader of the House, for his support. As my colleague the member for Wyong noted, when the Department of Environment, Climate Change and Water trialled the methodology on the Wyong Employment Zone and the Warnervale town centre developments in March this year it proved to be an efficient and cost-effective mechanism for identifying and securing conservation outcomes. I thank the member for Wyong for his support.
The biodiversity certification system established by the bill is an outstanding example of leading science that has been applied to practical planning. It is a system that we really need because, contrary to what most people think, in the future private land is where the biggest conservation gains will be made—or where we have the most to lose. People should think about this: of the vegetation that existed in western Sydney at the time of European settlement, only approximately 13 per cent remains, and only approximately 3 per cent of that is in conservation reserves. So 97 per cent of the remnant native vegetation in western Sydney is not reserved for conservation. What is more, the biggest and most viable patches of that vegetation exist largely by accident in places such as the land owned by the Department of Defence, university and school grounds, and even cemeteries and correctional facilities.
New South Wales needs this new system to ensure that remaining viable areas of habitat are properly managed and protected for the long term. If we do not move now to build conservation assessment into the planning stages of development proposals, if we do not begin to use a transparent, clear and repeatable methodology that takes the subjectivity out of decisions and makes them less prone to legal challenge, and if we cannot offer developers a cheaper and faster alternative to the current development application by development application system and encourage them to do more for the environment then the vulnerable and unique plants and animals for which we, as a society, are ultimately responsible will surely suffer a death by a thousand cuts—and it will be an expensive and litigious death. The merits of the current bill are clear. The mechanisms are transparent and open to public engagement. The cost savings are real. I commend the bill to the House.
Motion agreed to.
Bill agreed to in principle.
Question—That this bill be now agreed to in principle—put and resolved in the affirmative.
Passing of the Bill
ACTING-SPEAKER (Mr Thomas George):
Bill declared passed and transmitted to the Legislative Council with a message seeking its concurrence in the bill.
Government business having concluded, the House will now proceed to the matter of public importance.