In advising our clients whose existing developments stood to be substantially adversely impacted by the new Biodiversity regime, Dentons provided strategies to minimise the potential impact of the regime on their already approved concept plans.

Dentons has previously reported on the key aspects of the new Biodiversity regime, including some important dangers that developers need to be aware of, and a significant omission in the savings and transitional provisions that threatened the delivery of major projects under existing concept plan approvals.

Through an awareness campaign about the significant omission in the savings and transitional provisions that Dentons raised with the industry, through direct representations to government, and with the assistance of advocacy efforts from well-resourced industry associations, Dentons was able to champion for legislative reform.

On the eve of the wide scale application of the new regime to developments in NSW, the Government announced last Friday a further 3 month postponement of its application, and confirmed that it is planning to address the concept plan omission.

While this announcement came too late to be of assistance to developers who had already taken the precautionary measure of accelerating their development timeframes by lodging staged applications under their concept plan approvals before last Friday, it should come as welcome news to the rest of the NSW development industry. Developers now have a further 3 months to take steps to protect themselves from the potential adverse impacts of the new regime.

The text of the legislative amendment to address the concept plan issue has not yet been drafted and it is yet to be seen whether this will fully address the concerns of the development industry. While we have been assured that it was not the intention to require reassessment and further offsetting of Biodiversity impacts that have already been addressed at the concept plan stage, we have also been told that it is the Government's intention to ultimately bring all developments under the new regime, even large approved projects that may have a 15-20 year development period.

In this regard, it is relevant to note that the savings provisions state that the new regime will apply to the modification of an approval granted under the old regime. Although the Department of Planning has indicated that this will only apply to modifications that increase Biodiversity impacts, and the assessment under the new regime will be limited to an assessment of those additional impacts, there is nothing in the legislation that actually provides such safeguards to developers. The legislation simply states that the new regime will apply to the modification of approvals granted under the old regime.

Even if those safeguards were legislated, how they will be applied in practice is likely to be complex. For example, how can the additional impact of the modification be considered in a vacuum, without considering existing approved impacts and mitigation measures?

How to bring existing and long term development projects under the new regime without undermining those existing approvals is a difficult issue that requires careful consideration by the Government, and consultation with the industry. We urge the Government to undertake such consultation in order to ensure that this difficult issue is properly and fairly addressed.

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