Planners North v Ballina Council [2021] NSWLEC 120 serves as a reminder of the role of BDARs in the development approval process.

This case underscores the importance of thorough and accurate biodiversity assessments and the potential legal ramifications of failing to comply with legislative standards.

The Issue

Planners North sought approval for a development project that potentially impacted biodiversity values in the Ballina area. The Council, however, rejected the application on the grounds that the BDAR was insufficient and did not comply with the requirements of the Biodiversity Conservation Act 2016 (BC Act). The central issue revolved around the adequacy of the Biodiversity Development Assessment Report (the BDAR) submitted in support of a development application.

Legislative Framework

The BC Act establishes a comprehensive framework for assessing and mitigating the impacts of development on biodiversity. Key provisions relevant to this case include:

1. Biodiversity Offsets Scheme: the BC Act sets up a biodiversity offsets scheme that requires developers to offset the impacts of their projects on biodiversity values (section 6.2).
2. Biodiversity Assessment Method (BAM): the Biodiversity Assessment Method is a scientific tool used to assess biodiversity values and the impacts of proposed developments (section 6.7).
3. BDAR Requirements: a BDAR must be prepared by an accredited assessor and provide a detailed analysis of the biodiversity values on the site and the potential impacts of the development (section 6.12).

Court’s comments on the BDAR

The Court found that the submitted BDAR was deficient in several critical aspects:

1. Inadequate Assessment of Threatened Species: the BDAR did not adequately assess the presence and habitat needs of threatened species on the site. The report did not provide sufficient evidence to support its conclusions about the absence of certain species, nor did it adequately address the potential impacts on species that were present (as required at section 7.2(1)(a) of the BC Act).
2. Failure to Meet the Biodiversity Offsets Scheme Threshold: the report did not properly calculate the biodiversity offsets required under the scheme. This miscalculation meant that the proposed offsets were insufficient to compensate for the impacts of the development (as required by section 7.4 of the BC Act).
3. Non-Compliance with the Biodiversity Assessment Method: the BDAR did not adhere to the prescribed Biodiversity Assessment Method (BAM for short). The methodology used was inconsistent with the BAM, resulting in an incomplete and inaccurate assessment of biodiversity values (as required by section 6.8 of the BC Act).
4. Lack of Accredited Assessor’s Input: the BDAR was not prepared or reviewed by an accredited assessor as required by the Act. This further undermined the credibility and accuracy of the report (accreditation is required by section 6.10 of the BC Act).

Court’s Decision

The Court upheld Ballina Council’s decision to reject the development application, citing the significant deficiencies in the BDAR.

The Court emphasised that compliance with the BC Act and the BAM is not optional. It is a mandatory requirement for any development impacting biodiversity values.

As a consequence, the Court ruled that without a comprehensive and compliant BDAR, the development could not proceed, as it would contravene the legislative intent to protect and conserve biodiversity.

Key takeaways

1. Thorough and Accurate BDARs are Essential: the judgment underscores the necessity for BDARs to be thorough, accurate, and compliant with the BC Act. Both councils and applicants must ensure that BDARs are prepared by accredited assessors using the BAM to provide a reliable evaluation of biodiversity impacts.
2. Compliance with Legislative Requirements: The case highlights the importance of adhering strictly to the legislative requirements set out in the BC Act. Applicants must ensure that their BDARs address all relevant criteria, including the presence of threatened species and ecological communities, and calculate necessary biodiversity offsets accurately. Councils must review BDARs to ensure they meet all legal standards before granting approvals.
3. Importance of Early and Continuous Engagement: there is a critical need for early and continuous engagement between applicants, accredited assessors, and regulatory authorities throughout the BDAR preparation process. Proactive communication can help identify and address potential issues early on, ensuring that the BDAR is comprehensive and compliant with all regulatory requirements.

Further reading

Access the BC Act by clicking here.

You can read the full decision of Planners North v Ballina Council [2021] NSWLEC 120 below.