DRAFT SUBMISSION REGARDING

Transcription

1 DRAFT SUBMISSION REGARDING Biodiversity Certification Draft Assessment Methodology DATE July 2010

2 Opening: The Local Government Association of NSW and Shires Association of NSW (the Associations) are the peak bodies for NSW Local Government. Together, the Local Government Association and the Shires Association represent all the 152 NSW general-purpose councils, the special-purpose county councils and the regions of the NSW Aboriginal Land Council. The mission of the Associations is to be credible, professional organisations representing Local Government and facilitating the development of an effective community-based system of Local Government in NSW. In pursuit of this mission, the Associations represent the views of councils to NSW and Australian Governments; provide industrial relations and specialist services to councils and promote Local Government to the community and the media. The Associations thank the Department of Environment, Climate Change and Water for the invitation to make a submission concerning the Draft Biodiversity Certification Assessment Methodology. Please note that in order to meet the consultation deadline, this submission is provided in draft form, in anticipation of LGSA Executive sign off in September The Associations will advise the Department of any amendments to the submission at that time. Executive Summary: The Associations have a significant interest in the function and administration of any new strategic planning framework proposed by the NSW Government, especially one such as this that explicitly relies on Local Government adoption. The priorities for the Associations within this submission are the implementation aspects of the methodology, and their relationship to Local Government activities and operations. The more scientifically technical matters of the methodology have not been addressed. The Associations have been pleased to be involved in discussions with the Department throughout 2010 while it has developed this legislation and methodology. However, it is disappointing that many of the issues raised in this submission are the same issues that the Associations have raised with the Department on numerous occasions during this development process. Councils support the conservation and enhancement of biodiversity and continue to seek opportunities which facilitate better biodiversity management in their local areas. The opportunities provided through Biodiversity Certification are of particular interest to councils, however the Associations have some significant concerns with the detail of the proposed methodology. While details are provided on specific issues within the submission, the main concern is the apparent lack of incentives for councils to use the Biodiversity Certification process. It has been recognised by other stakeholders that the success of biocertification will ultimately depend on the level of adoption by Local Government, however the proposed schemes seems to focus its attention on benefits for developers and the Department, not local councils. The Associations are very disappointed that very little, if any, of its advice to the Department regarding the engagement of councils has been incorporated into the final draft of the methodology. Even worse, one clause of an earlier draft that was specifically supported by the Associations has been removed. The Associations would welcome further consultation with the Department to improve the methodology, and the proposed scheme in general. These improvements would work towards developing better incentives for councils, fine-tuning the calculation of credits for different conservation measures, and resolving concerns with the financial aspects of the scheme. Submission Date: [Insert Date] Page 2 of 9

3 Submission Date: [Insert Date] Page 3 of 9

4 Purpose: This submission will outline the Associations position on the Draft Biodiversity Certification Assessment Methodology, as publically exhibited by the Department of Environment, Climate Change and Water in July It has been determined that the priorities for the Associations are the implementation aspects of the methodology, and their relationship to Local Government activities and operations. The more scientifically technical matters of the methodology have not been addressed. Introduction: The Associations appreciate being asked to provide comment on the Draft Biodiversity Certification Assessment Methodology. The Associations have a significant interest in the function and administration of any new strategic planning framework proposed by the NSW Government, especially one such as this that explicitly relies on Local Government adoption. To this end, the Associations have been pleased to be involved in discussions with DECCW throughout 2010 while it has developed this legislation and methodology. Both natural resource management (NRM) and land-use planning policy staff from the Associations have readily provided feedback and advice throughout the development process in an attempt to ensure a positive outcome. It is very disappointing that many of the issues raised in this submission are the same issues that the Associations have raised with the Department on numerous occasions during this development process. It appears that none of these suggestions have been incorporated into the final draft, and even worse, one clause of the previous draft that was specifically supported has been removed. It is also frustrating that despite repeated advice from the Associations staff regarding the importance of Local Government engagement, the public exhibition period for this draft methodology is so limited. Further, it is unlikely that any council submission meeting the consultation deadline will be able to be officially endorsed due to the short timetable. Issues of Concern: The Associations agree that environmental outcomes can be enhanced when planning for conservation is carried out at a landscape scale, and that it is essential that this process is aligned with the strategic land use planning process. While Biodiversity Certification can provide this opportunity, the Associations have some significant concerns with the detail of the proposal. The main concern is the apparent lack of incentives for councils to use the Biodiversity Certification process. The benefits for developers are obvious (no need for threatened species assessment at the individual development scale, therefore significantly reducing costs and time), as too are the benefits to DECCW (move to a regulatory role only, as opposed to the resource intensive proposal development role it has undertaken to date). However there are no obvious benefits to councils. The Department undertook some economic analysis of the impacts of the new framework to improve the understanding of the appropriation of costs in the new system. Unfortunately this analysis has never been made public to relevant stakeholders, however it seems unlikely that there are any significant benefits for councils. There will be significant cost savings for developers and the NSW Government, but significantly smaller cost savings (if any at all) for councils. While council initiatives are not always determined by cost (other factors such as legislative requirements, community expectations and civic leadership also play a role), councils will only undertake a process if they can clearly see the benefits. In the present climate of increased demands on council services but limited council resources (especially with rate pegging), this is unlikely. As recognised by the Department of Planning in its feedback on earlier versions of the methodology, the success of biocertification will ultimately depend on the level of adoption by Local Government. Submission Date: [Insert Date] Page 4 of 9

5 Section 7 Calculating credits for conservation measures in the biodiversity certification assessment area Section 7 sets out the rules and requirements for the calculation of credits within the biodiversity certification assessment area for a range of different management options. These options include planning scheme measures, permanently managed conservation measures and permanently managed and funded conservation measures. The Associations recognise the need for different rules for different management options, however would like to raise the following issues: Sec Planning scheme conservation measures For land to be used as a planning scheme conservation measure, the following development control provisions in the relevant EPI must apply: Where the land is public land, it must be zoned E2. The experience of numerous councils across the state indicates that the Department of Planning is not in favour of public land being zoned E2. The Department has strongly encouraged, and even demanded, that councils zone all public land (such as parks and bushland reserves) as RE1. The latest advice from the Department suggests that this is still the preferred approach. A number of councils have requested that their bushland reserves be zoned E2 and have encountered significant resistance. Where the land is Public land within the meaning of the Local Government Act 1993, it must also be classified as 'Community Land'. Where the land is private land, it may be zoned either E2 or E3. If land is classified Community Land under the Local Government Act 1993, it requires an official Plan of Management outlining the permissible uses of the land. This is developed through a fully transparent public consultation process, and outlines the level and extent of management the council will undertake on the land. This would seem to be a much greater level of long term protection for the land than an E2 or E3 zoning over private land. It seems inequitable that the same value of biodiversity credit is given to these two, quite different levels of protection. The Director General is satisfied that a minimum lot size has been set that will effectively disallow opportunities for further subdivision. Traditionally, subdivision design has been governed by the application of a minimum lot size (reinforced in the Standard Instrument). Minimum lot size is easy for the community to understand, however it does not provide the flexibility of arranging lots by size and lot boundary to provide the best environmental outcomes. The Associations are currently in discussions with the Minister for Planning regarding the use of Lot Averaging in subdivision design. Lot Averaging provides a flexible method of subdivision design whereby a variety of lot sizes of a specified average area is achieved and a larger residue area of environmentally sensitive land is set aside for protection. The aim is to match the pattern of subdivision to local landscape features and thereby encourage the appropriate and sustainable use of land. It also allows the development pattern to match the landscape and rural objectives of the planning instrument. The Associations recommend that the Department investigate the opportunities of Lot Averaging within the Biodiversity Certification context. Submission Date: [Insert Date] Page 5 of 9

6 Development control for the preservation and protection of vegetation set out in Appendix 4 must apply. Note: This development control is adopted from Clause 5.9 of the Standard Environmental Planning Instrument template. The Associations believe that this clause is in fact impossible under current legislation. The provisions of Appendix 4, which are based on Clause 5.9 of the LEP Standard Instrument, include a series of exemptions (as listed in Part 8 of the Appendix). These exemptions attempt to remove the possibility of dual consent requirements for vegetation removal. Part 8 states: This clause does not apply to or in respect of: a) the clearing of native vegetation that is authorised by a development consent or property vegetation plan under the Native Vegetation Act 2003 or that is otherwise permitted under Division 2 or 3 of Part 3 of that Act Therefore councils are not able to apply this development control in areas where the Native Vegetation Act applies. The Native Vegetation Act applies in all non-urban zones, including all Environmental Protection Zones. Therefore, it is impossible for councils to comply with the requirement in this Section of the Methodology (to zone land E2 or E3, and apply Appendix 4). In addition to this, Clause 5.9 (and therefore Appendix 4) has a flaw that may actually lead to the perverse outcome of reduced environmental protection. As Clause 5.9 currently stands, it allows clearing of vegetation that is otherwise permitted under Division 2 or 3 of Part 3 of the Act. This means that Routine Agricultural Management Activities (RAMAs) are valid exemptions from clearing approval or development control. Therefore landowners, within Environmental Protection Zones, are able to clear vegetation without approval. This would be inconsistent with the objectives of any Environmental Protection Zone, and biodiversity conservation program or measure. Sec Permanently managed conservation measures Permanently managed conservation measures can be used to create ecosystem credits and ecosystem credits to offset the impacts of land proposed for biodiversity certification. These measures include: Conservation Agreements under Division 12, Part 4 of the National Parks and Wildlife Act 1974 Trust Agreements under Part 3 of the Nature Conservation Trust Act 2001 Under Section 555 of the Local Government Act 1993, both of these conservation measures are exempt from all council rates. While the Associations support the promotion of private land conservation, it is long standing policy to raise concerns about the impact on local council finances of these rate exemptions. It would seem unlikely that any council undertaking the Biodiversity Certification process would actively promote either Voluntary Conservation or Trust Agreements as a part of the proposal. Sec Permanently managed and funded conservation measures Permanently managed and funded conservation measures can be used to create ecosystem credits and ecosystem credits to offset the impacts of land proposed for biodiversity certification. These measures include: Land to be reserved under the NPW Act Land subject to a Biodiversity Banking Agreement under Part 7A of the TSC Act. Once again, the issue of rate exemptions is raised as land reserved under the NPW Act is also exempt from council rates under Section 555 of the Local Government Act. The promotion by a council of private land being transferred to National Park estate during a Biodiversity Certification proposal is unlikely due to the potential impacts on rate revenue. Submission Date: [Insert Date] Page 6 of 9

7 However, it is much more likely that councils will promote the use of Biodiversity Banking Agreements, as these specifically include council rates in their financial calculations. Section 8 Obtaining credits outside the biodiversity certification assessment area Section 8 sets out the options that are available for obtaining ecosystem credits and species credits outside the biodiversity certification assessment area. Specifically it outlines the arrangements involved in the financial contributions towards Biodiversity Certification. Sec Translating outstanding credit requirement to a monetary value The application for biodiversity certification may propose an administration fee be added to the capital amount determined from the Credit Pricing Spreadsheet. The administration fee may be used to provide for the administration of the funds realised by the financial contribution. The previous version of the draft Assessment Methodology that was supplied to the Associations included a provision for councils to re-coup the costs associated with the preparation of a Biodiversity Certification Proposal. This provision was strongly supported by the Associations, and this support was specifically mentioned in the Associations feedback to the Department. The Associations are extremely disappointed that this provision has been removed, and consider it to be a major flaw with the proposed framework. In the currently proposed framework, all of the costs and responsibilities for any Biodiversity Certification proposal (research, development, exhibition, review, co-ordination, etc) have been placed on Local Government, yet the rewards are shared by developers and the NSW Government. The Administration Fee outlined in Section is specifically restricted to administering any funds realised by a financial contribution to satisfy outstanding credit requirements. The ability of the proponent (ie. a council) to recoup the costs associated with the actual development of the proposal, and the ongoing administration of the agreement has been removed. The development of a proposal will be a long, complicated and potentially expensive exercise. The Associations fail to see how councils will undertake this process without resources and/or the ability to re-coup the costs of proposal development Once again the Associations highlight the Department of Planning opinion that the success of biocertification will ultimately depend on the level of adoption by Local Government. Sec 8.5 State Infrastructure Contributions (environmental levy) A State Infrastructure Contribution (SIC) under the EP&A Act may be used to raise a financial contribution through the establishment of an environmental levy on the land proposed for biodiversity certification within the biodiversity certification assessment area. This may only apply to areas which have been designated as a State Contributions Area under the EP&A Act. The Associations have a number of concerns about the proposed use of State Infrastructure Contributions as an environmental levy to raise financial contributions within a Biodiversity Certification area. From experience in dealing with NSW Treasury on these issues, the Associations believe that it will be difficult to argue that the conservation of biodiversity is infrastructure. Confirmation is sought that NSW Treasury and/or the NSW Cabinet will actually approve the use of SIC as an environmental levy in this situation. Submission Date: [Insert Date] Page 7 of 9

8 It appears that the SIC is simply seen as a convenient avenue for revenue raising for buying offsets. Councils are already concerned that the SIC will crowd out local levies to the extent that there will be an adverse reaction from developers forcing further reductions in local contributions. Further, the use of the SIC is contrary to the principle of subsidiarity. This principle states that decisions should always be taken at the lowest possible level, or closest to where they will have their effect (ie. in a local area, rather than state or nationally). In this case decisions about the quantity and application of the SIC levy, and decisions about how and where the money is spent, are being made by the State Government, rather than the local council which is responsible for the development and implementation of the Biodiversity Certification proposal. The lack of control over the collection of funds, and how and where those funds are spent in the local area is a disincentive for local councils to get involved. The Associations seek confirmation that the Department has consulted with the Division of Local Government (now part of DPC) regarding the opportunities for environmental levies under the Local Government Act. Conclusion & Recommendations The Associations reinforce their disappointment that many of the issues raised in this submission are the same issues that the Associations have raised with the Department on numerous occasions during consultation this year. It is unlikely that the Draft Assessment Methodology contains enough suitable provisions to encourage or entice councils to undertake the proposed process. While the benefits to developers and the Department are obvious, it is difficult to identify many benefits for Local Government. The Associations would welcome further consultation with the Department to improve the methodology, and the proposed scheme in general. These improvements would work towards developing better incentives for councils, fine-tuning the calculation of credits for different conservation measures, and resolving concerns with the financial aspects of the scheme. Submission Date: [Insert Date] Page 8 of 9

9 APPENDIX 1: Extracts from Associations Policy Statements Local Government Association of NSW 7. Biodiversity 7.1 Local Government supports the conservation of biological diversity. 7.2 Councils should develop policies that maximise biodiversity and protect threatened and endangered species and their ecosystems. 7.3 Councils should maximise the development and maintenance of habitat corridors 22. Enhancing the role of Local Government in natural resource and environmental management Local Government is committed to achieving sustainable natural resource management (NRM) outcomes. Local Government is committed to regional approaches to natural resource management. Local Government is committed to using its planning processes and powers to deliver local priorities and assist the achievement of regional outcomes. Local Government is committed to considering NRM priorities and community expectations in making decisions about resource allocation, recognising a need for long-term resource investment from multiple stakeholders Local Government is a partner with the other spheres of Government in the development of natural resource and environmental management policies, and as the logical vehicle for the implementation of these policies at the local and regional level. Shires Association of NSW Local Government is a partner with the other spheres of Government in the development of natural resource and environmental management policies, and as the logical vehicle for the implementation of these policies at the local and regional level. The Association continues to negotiate a more substantial role for Local Government in: catchment management; vegetation management; threatened species conservation; rural land protection; and salinity management. These negotiations address, inter alia, the question of adequate resources for Local Government to undertake this expanded role through specific funding from the State and Federal Governments. Submission Date: [Insert Date] Page 9 of 9