Friends of Grasslands

supporting native grassy ecosystems

PO Box 440
Jamison Centre
Macquarie ACT 2614


Land Management and Biodiversity Conservation Reforms
Office of Environment and Heritage
PO Box A290
Sydney South NSW 1232


Dear Sir/Madam

Biodiversity Conservation Act 2016 and Local Land Services Amendment Act 2016:
regulations, State Environmental Planning Policy (Vegetation) and other key products

Friends of Grasslands (FOG) is a community group dedicated to the conservation of natural temperate grassy ecosystems in south-eastern Australia. FOG advocates, educates and advises on matters to do with the conservation of grassy ecosystems, and carries out surveys and other on-ground work. FOG is based in Canberra and its members include professional scientists, landowners, land managers and interested members of the public (including NSW residents).

FOG welcomes the opportunity to comment further on this package. Our comments follow.

Biodiversity regulation

Clause 6.2, 2(c), p44

Our understanding from the documents is that the Biodiversity Conservation Trust can fund a biodiversity action that benefits the entity affected but is not listed in the BAM. It isn’t clear if this can include indirect offsets such as research. If so, there needs to be a low-percentage cap of the amount of offsets allowed to be indirect (10% would align with the cap under the EPBC Act).

Clause 6.2, 2(e), p45

This clause identifies that payment may be made into the Biodiversity Conservation Fund without identification and setting aside of a like-for-like conservation area. This is reflected in the Fact sheet ESD: “Payment can also be made to the Biodiversity Conservation Trust to meet the offset requirement” (Fact sheet ESD), and in the Draft Offsets payment calculator – user guide. While it is understood that this will be used specifically to enable purchase of larger areas of land as an offset for multiple developments, instead of small parcels for each development, FOG’s concern is that there appears to be no requirement to identify an offset site to which this will contribute, and, if there is no suitable parcel of land to meet the offset requirements what the payment will be used for. The whole concept of offsets is that there will be no net loss of the species or ecosystem being affected by a development. It is essential that, if money is set aside as part of an offset package, that the parcel of land to which the offset is to be applied is identified and set aside before the associated development commences. If this does not occur then it is not a true offset and should not be allowed. This clause requires clarification, so that it requires payment to go towards purchase and ongoing maintenance of a suitable offset.

Clause 6.4, 1(b) (ii), p46

There is reference here (and in other places) to an “offset trading group”, but we were unable to find a definition of this term anywhere, nor a listing of existing offset trading groups on the web. It is not clear whether subclause (ii) allows offsetting with a completely different (if higher conservation value) type of species or ecological community. In FOG’s view, any impacts on our critically endangered native grasslands and grassy woodlands should not occur at all, but if they are deemed necessary they must be offset by similar communities, i.e. always like-for-like.

We note that, under clause 6.5, the Environment Agency Head is to determine the various offset trading groups. There is no indication of what the interpretation of this term might be, or whether there will be any opportunity for the community, or even the NSW Scientific Committee, to be involved in drawing up these groups.

Clause 6.5, 2(b), p46

There is reference to the setting out of standards for the ecological rehabilitation of sites affected by mining activities, but we could find no reference to any standard needed for ecological rehabilitation of sites affected by other development processes (such as laying of pipelines). Similarly, we could not find any reference to minimum standards required for rehabilitation work that is part of an offset package.

Clause 7.3, 3(g), p58

FOG supports the inclusion of high conservation value grasslands in this clause.

Draft Biodiversity Assessment Method

Clause 2.2.2, p2

With regard to TSRs, this clause should make reference to the many conservation assessments that have already been carried out on TSRs throughout NSW. While these may need updating as new EECs are introduced, there is much valuable information concerning TSRs at

Clause 13.2, p59

In FOG’s view, an essential part of any long term management plan for a conservation site is on-going quantitative monitoring of the site’s ecology to apply adaptive management that ensures biodiversity values are retained and that activities which are part of offset credits are effective and enhance the site’s conservation values. This is included in table 9 in clause 13.3, but should be part of the management plan itself as well.

Clause 13.4, p61

FOG supports active restoration of native ecosystems where the methodology is based on science. However, in the context of grassy ecosystems we are aware of how limited is our knowledge of how to restore these ecosystems, and also of how expensive such restoration can be. It is important that, where such active restoration is attempted, the results are monitored, documented and made available publically (including failures), to provide information for future restoration attempts.

It is also crucial that such activities are regarded as high risk and are weighted accordingly in terms of credit generation. A mediocre attempt at restoration should not be sufficient to generate offset credits for an entire development proposal, since there is a high risk of failure and net loss of endangered species and ecosystems.

With regard to active restoration activities, it is also important to factor in vagaries of climate – an activity that might be successful in a good year could fail if applied during a drought. An additional risk loading is needed to cover this.

Note also that activities such as management of biomass and height of grass cover are important in managing grassy ecosystems and dependent species.

Clause 13.11, p70

Different grassland fauna species are known to have different requirements in the same type of grassland, e.g. different preferences for amount of inter-tussock space or grass height. In this regard credit calculations for endangered grassland fauna should take into account the subset of attributes most relevant for the target species. On the other hand, two endangered grassland species may be present in close proximity in the same endangered grassland community, and the community itself needs specific management to retain its values. FOG suggests that, at least in the context of grassy ecosystems, credit calculations should be a combined analysis of attributes associated with all endangered grassland fauna species present and a composite of the endangered vegetation integrity attributes.

Clause 13.13

FOG supports the proposal that passive actions such as “Retain and manage regrowth” do not contribute to a credit reduction.

Draft Offsets payment calculator – user guide

The stated purpose of the draft offsets payment calculator (the Calculator) is to determine how much a developer must pay into the Fund to satisfy an offset obligation. As already indicated, FOG’s view is that, if a suitable like-for-like parcel of land is not identified as the offset prior to the development commencing, it should not be regarded as an offset at all. Endangered ecosystems and species are rare and in decline – after all that is why they are listed as endangered – so there is a very high risk that a suitable offset will not be found. However, this risk does not appear to be reflected in the offsets payment calculations. The only mention of risk is that of “market credit price variation”. Changes in market values do not, in our view, reflect the true value and risk of losing endangered grassy ecosystems. Neither do they  reflect the risk that any rehabilitation undertaken as part of an offset will fail to achieve the required conservation value. In relation to grassy ecosystems, our understanding of how to restore a moderate conservation value area to a high conservation one is limited, and the risk of failure is very high.

As already stated, FOG is concerned about the concept that developers can pay into the Biodiversity Conservation Trust and leave it to the Trust to find a suitable offset at a later date. Our view is that, at the very least, the Calculator should reflect the true risk of the offset either not being found at all or being inadequate, resulting in a net loss of our endangered species and ecosystems over time. Many are so rare that they are, in truth, almost priceless.

Local Land Services Amendment (Land Management—Native Vegetation) Regulation 2017

Clauses 108 2(e) 109 and 110, p6; clause 113 (g), p8

FOG supports the inclusion of high conservation value grasslands in this clause.

We note that the NSW Government is currently developing the Grasslands and other Groundcover Assessment Method and that this is to be peer reviewed and targeted consultation undertaken before it takes effect. We ask that FOG be part of this targeted consultation process.

Clause 113, consultation note, p8

The documentation indicates that the government is seeking feedback on how TSRs should be treated under these reforms. FOG’s view is that any TSR with any conservation values should be protected (i.e. considered a category 2 site) and managed to maintain and enhance the site’s conservation values, generally including removing access, however short, by herds of stock. To quote from our concurrent submission to the NSW government’s State Operations:

“TSRs occur strategically across the landscape, often within lowland areas that have been heavily subjected to change or destruction as a result of agriculture, development and infrastructure. Many contain remnants of vegetation and habitat that are poorly represented elsewhere. While they may contain listed threatened ecosystems, others contain particularly diverse and “clean” remnants of other ecosystems. All should be assessed on their merits to ensure long term retention of all TSRs of conservation value – not only those containing threatened species and ecosystems (including those that may be listed in future, such as Natural Temperate Grassland) but also TSRs containing highly diverse and high quality ecosystems that are not listed and those with remnants that form important stepping stones across an otherwise fragmented and highly modified landscape.”

FOG can provide previous submissions or more information about our views on this topic if desired.

Draft guidance and criteria to assist a decision maker to determine a serious and irreversible impact

Section 3.1, p4 and Appendix 3, p25

Section 3.1 states that the SAII principles will apply to all threatened species and threatened ecological communities listed under the BC Act, with the caveat in Appendix 3 that the list of candidate ecological communities that meet the SAII principles and criteria is indicative only in this document. FOG believes that this should be expanded to include species and ecological communities that occur in NSW and are listed nationally as critically endangered (on the EPBC list). There are various reasons for differences between State and the EPBC lists, including whether or not a species or community has been nominated for listing, different timings in review of the status of a species or community and consequential changes to status, and definitional differences. The precautionary principle needs to apply to these species and communities if we are not to lose them. We note that EPBC-listed species and communities are included in the biodiversity risk weighting of the draft Biodiversity Assessment Method (table 20, p92 of the draft BAM document), but this is not reflected in other documents in the package.

In particular, the following ecological communities are listed as critically endangered nationally, and need to be included in this list, irrespective of their current status on the NSW list:

The text of the fourth paragraph on p4 should be expanded to: “…These criteria have been applied to all threatened species and threatened ecological communities listed under the BC Act, and to any other species and ecological communities that occur in NSW and are listed as threatened under the EPBC Act”, or else this principle be captured in section 3.3.1.

Section 3.3.2, pp8-9

Under point 5 in the section Evaluation of an impact on a candidate species and point 4c in the section Evaluation of an impact on a candidate threatened ecological community, another important example of increased threats is the ongoing impact of the development itself, such as edge effects if the development is urban, or additional requirements for wildfire mitigation actions, or maintenance activities if the development is infrastructure.

Appendix 1, principle 1, p10

Given the critically endangered status of the species and communities to which it applies, the population reduction criterion in the section Rapid rate of decline for species should apply to the shorter of the two timeframes, not the longer.

Appendix 1, principle 3, p12

The section Very limited geographic distribution (ecological community) gives criteria that may be appropriate for forests, but are too large for grassy ecosystems. These communities can remain viable in quite small cells and, in fact, many of our best examples of intact native grassland occur in cells much smaller than 10 x 10 km grids. The criteria in this section need to be set lower for grassland or grassy communities, and for threatened communities, be in line with criteria identified in the listings for these communities. There are no doubt other types of vegetation communities for which lower criteria might be appropriate.

State Environmental Planning Policy (Vegetation)

Question 1, p16

Concerning the question “Do you think that all clearing of native vegetation on land in urban areas land in environmental zones should require development consent if it exceeds the BAM thresholds?”, FOG’s view is that, if any area is zoned as environmental, its conservation values need to be assessed and the impact of clearing be considered before any development consent is given.

Question 2, p 16

Concerning the question “What involvement do you think councils should have in assessing clearing applications above the BOS threshold? For example, they could be notified of clearing applications, asked to review or comment on applications, or the role of the Native Vegetation Panel could be delegated to Councils?”, FOG is not sure if all councils have the expertise to undertake the role of the Native Vegetation Panel. It is essential that this role be performed by a panel with a good scientific understanding of native vegetation and ecological communities. Use of a Panel also avoids the possibility of a conflict of interest.

Concluding statements

FOG is aware that these amendments to the legislation are aiming to streamline the process of assessment and to clarify requirements and obligations. However, like all legislative changes it will take some time for people to understand what it means, to test it and bed it down. We urge that an adaptive approach be taken to ensure the conservation outcomes are those that are desired. We believe the success of this legislation to achieve the desired conservation outcomes will require adequate financing, interpretation of the legislation and enforcement. We therefore recommend that:

  1. a guideline for users and the public be developed that sets out the process clearly, identifies what the legislation is aiming to achieve, what outcomes on the ground are expected and what will be the result if the legislation is not complied with;
  2. adequate resources are provided for training of staff, not only those in relevant NSW government offices but also those in Shire council roles as well as the individuals who will carry out the ecological assessment and reporting.  This is all necessary to facilitate compliance with requirements;
  3. adequate resources and support are provided (e.g. to councils and OEH) to assess compliance and follow up non-compliance effectively; and
  4. continued support is provided to regularly update mapping based on on-going surveys, to ensure that data which underpins the effectiveness of this legislation is accurate.

Yours faithfully



Sarah Sharp
Advocacy coordinator

21 June 2017