On this page you will find documents relating to bilateral agreements between the Commonwealth and the State of New South Wales relating to environmental assessment and approval.
Assessment Bilateral Agreement
Assessment bilateral agreements have existed with all states and territories since 2015.
About the agreement
The bilateral agreement between the Commonwealth of Australia and the State of New South Wales relating to environmental assessment (the assessment bilateral agreement), allows the Commonwealth Minister for the Environment to rely on specified environmental impact assessment processes of the State of New South Wales in assessing actions under the EPBC Act.
Agreement between the Commonwealth of Australia and the State of New South Wales relating to Environmental Assessment Department of the Environment, 26 February 2015
The current agreement will replace the previous agreement, that operated from 20 December 2013 to 25 February 2015.
- New South Wales Assessment Bilateral Agreement (PDF - 2.09 MB) | (DOCX - 168.75 KB)
- Agreement notice (PDF - 16.07 KB) | (DOC - 34.5 KB)
- Report on Comments (PDF - 153.36 KB) | (DOCX - 37.68 KB)
- Statement of Reasons (PDF - 1.69 MB) | (DOC - 134.5 KB)
About this review
The New South Wales Assessment Bilateral Agreement sets out a requirement to review whether the objects of the Agreement were being achieved after 12 months of operation. The review found that the parties have made significant progress implementing the Agreement. There is increased awareness of obligations under the EPBC Act and increased consistency and coordination when issuing Commonwealth and NSW environmental assessment requirements. The review also identified some aspects of the Agreement’s operation that could be improved.
- Background - public consultation, previous agreements
Amendments to the Assessment Bilateral Agreement
The Australian Government has entered into a new agreement with New South Wales - Amending Agreement No. 1. It amends the bilateral agreement signed in 2015 (the Original Agreement). That agreement was made under section 45 of the Environment Protection and Biodiversity Conservation Act 1999(Cth) (EPBC Act) relating to environmental assessment.
Amending Agreement No. 1 commenced on 24 March 2020. It reinforces the Australian and NSW governments’ commitment to:
- streamline environmental assessments and offsets
- reduce regulatory burden.
You can also read the Minister for the Environment’s Statement of Reasons for entering into Amending Agreement No. 1
Why the Original Agreement was amended
In 2017, several changes were made to NSW legislation. The Biodiversity Conservation Act 2016 (BC Act) was introduced and amendments were made to the Environmental Planning and Assessment Act 1979 (EP&A Act). The Original Agreement was amended to reflect these changes, and allow continued streamlining of environmental assessments.
The amendments are not substantive in nature and will continue to minimise duplication of environmental assessments and offsetting requirements for NSW projects. The Original Agreement’s intent is unchanged, and the existing content has been kept wherever possible.
How to read Amending Agreement No. 1
Amending Agreement No. 1 comprises 2 new pages that precede the Original Agreement. The Original Agreement is at Attachment A and includes deletions and additions, crossed out or double underlined, respectively.
Amending Agreement No. 1 took effect on 24 March 2020. The Original Agreement still applies for projects that were already being assessed by the NSW Government under the Original Agreement before this date.
We made the draft Assessment Bilateral Agreement available for public comment from 11 January 2019 to 21 February 2019. We received 6 submissions.
See a summary of submissions we received.
There are small changes between the final version of Amending Agreement No. 1 and the published draft. They reflect:
- corrections to minor errors and referencing
- change to the responsible Ministers
- updated wording in Clause 7, to reflect our endorsement of the NSW Biodiversity Offsets Scheme.
Most changes reflect wording in the new NSW legislation, where names and numbers have changed.
There are also minor administrative changes to make Amending Agreement No.1 more relevant and fit for purpose. The most significant of these are:
Broadening the scope to include Commonwealth land, actions and agencies - Clause 4.2
The Original Agreement excludes actions in Commonwealth areas or by Commonwealth agencies. Amending Agreement No. 1 now allows such projects to be assessed by the NSW Government, if agreed by the Commonwealth Minister for the Environment and the NSW Minister for Planning.
Excluding Part 5 projects - Schedule 1 (ix) and (x)
Amending Agreement No. 1 exclude projects assessed under Part 5 of the NSW EP&A Act. Part 5 projects are primarily carried out by or on behalf of NSW public authorities and do not require development consent through the NSW Department of Planning, Industry and Environment. There are therefore limited savings from including Part 5 projects within Amending Agreement No. 1.
Transitional Arrangements - new clause 5.0 in Amending Agreement No. 1
The Original Agreement still applies for projects assessed under NSW former planning provisions because they pre-date the BC Act or are being assessed in accordance with the Biodiversity Conservation (Savings and Transitional) Regulation 2017.
Previously endorsed NSW impact assessment and offset methodologies will remain endorsed by the Australian Government and can still be used to calculate EPBC Act offsets for transitional projects. These include the NSW Biodiversity Offsets Policy for Major Projects, the FBA, and the Biobanking rules established under section 127B of the now-repealed Threatened Species Conservation Act 1995.
The Department of Agriculture, Water and the Environment has endorsed the NSW Biodiversity Offsets Scheme (BOS). It includes the Biodiversity Assessment Method (BAM), the biodiversity credit system, and the offset rules set out in the BC Regulation. Both governments agree that endorsement of the BOS for both NSW and Commonwealth-listed threatened species and communities will provide for robust, transparent, and streamlined biodiversity protection outcomes.
The BOS is largely consistent with NSW’s previous offsetting approaches. NSW has amended the BC Regulation to align with Australian Government requirements and ensure like-for-like offsets are achieved for Commonwealth-listed threatened species and communities.
Endorsement of the BOS applies to all NSW projects that require EPBC Act approval not just State Significant projects under the Bilateral Agreement.
A statutory review of the operation of the Bilateral Agreement is required to be undertaken by the Australian and NSW Governments at least once every five years. The first statutory review, scheduled for 2020, will focus on the effectiveness of the Commonwealth’s endorsement of NSW offset approaches in ensuring long-term environmental outcomes for relevant matters of national environmental significance over the previous five years.
In addition, the Department of Agriculture, Water and the Environment will undertake more regular monitoring of how offsets are secured under NSW offsetting arrangements for the purposes of EPBC Act approvals at the project scale.
Holders of an approval under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) can meet their offset obligations in accordance with the NSW offset rules. This means proponents may seek to generate and retire like-for-like credits through Biodiversity Stewardship Agreements or purchase and retire credits directly from the market.
Holders of an approval under the EPBC Act may be able to pay into the NSW Biodiversity Conservation Fund to meet the conditions of their approval if they have:
- A legal obligation to retire biodiversity credits under NSW law (generally via development consent conditions issued by an NSW consent authority under the EP&A Act), and
- EPBC Act approval that was made on or after 24 March 2020 or if issued prior to this date, EPBC Act conditions of approval that allow for payment into a Commonwealth-endorsed Fund.
EPBC Act approval holders not eligible under the above criteria seeking to pay into the Biodiversity Conservation Fund as an alternative to existing offset obligations should contact the Post Approvals Section in the Department of Agriculture, Water and the Environment (firstname.lastname@example.org).
The BAM establishes a single consistent approach to assessing biodiversity values and biodiversity impacts from development. The BAM builds on and supersedes previous NSW statutory assessment and offsetting mechanisms; BioBanking and the FBA.
The BAM uses a framework to avoid, mitigate and offset proposed impacts to biodiversity. Where offsets are required, the BAM achieves no net loss of biodiversity.
Despite technical changes, the BAM’s coverage and approach remain conceptually consistent with prior approaches.
The offset rules require the retirement of like-for-like biodiversity credits or funding conservation actions that directly benefit the listed species or community impacted. These meet the Australian Government’s requirements.
The NSW offset rules allow for variations where like-for-like offsets cannot be found. However, NSW has amended the BC Regulation to prevent the variation rules from applying to projects that need EPBC Act approval and that have an offset obligation for nationally-listed species and communities. It ensures offsets for EPBC Act purposes achieve like–for-like outcomes.
The Australian Government considers mine rehabilitation an important component of landscape-scale biodiversity conservation and recognises that rehabilitation activities can contribute to offsetting outcomes where they directly benefit matters of national environmental significance. The quantum of a mine’s offset obligation to be met through rehabilitation will be determined on a case by case basis.
NSW will also ensure payments into the Biodiversity Conservation Fund for EPBC Act projects are disbursed in a like-for-like manner to meet Australian Government requirements.
Approval Bilateral Agreement
The Australian Government is putting in place approval bilateral agreements with states and territories. The first step is to publish a notice of intent to develop an environmental approval bilateral agreement.