In August 2019, the determination of Serious and Irreversible Impacts (SAIIs) was handed by the NSW State Government Department Of Planning, Industry & Environment (DPIE) to consent authorities such as local councils, to assess the impact of different types of development and activities on some flora and fauna and ecological communities.
The brainchild of the NSW Department of Planning, Industry and Environment (DPIE), SAIIs are defined on their website as “…fundamentally about protecting threatened entities that are most at risk of extinction from potential development.” Note that the concept of extinction is raised here.
The issue raised in SAII is ultimate extinction, which is a function of population viability, being a question of genetics. The process of consideration is indicated in the five part test (see text box below) at section 7.3 of the Biodiversity Conservation Act 2016.
In a regulatory context, SAIIs are part of the Biodiversity Offsets Scheme, both of which are informed by the Biodiversity Conservation Act 2016 and the Local Land Services Act 2013 (LLS Act). SAII decision making is delegated in the BC Act as follows:
The Biodiversity Conservation Act 2016 (BC Act) s.7.13(6) allows the consent authority discretion over what measures are required in relation to avoiding and minimising impacts.
To guide the decision maker, the BC Act (and Biodiversity Conservation Regulation 2017 (BC Regulation)) provides a framework for making a determination. The framework has a hierarchy which has been set out in the following flowchart from DPIE’s Guidance to assist a decision maker to determine a serious and irreversible impact (Section 3.1, Figure 1, page 5):
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In order to make a determination, a set of principles and criteria to interpret the principles are also provided, described by the DPIE guidance document as (page 3):
“… designed to capture those impacts which are likely to contribute significantly to the risk of extinction of a threatened species or ecological community in New South Wales.”
How councils determine an SAII is important, as it is done by identifying what are called impact thresholds for each potential serious and irreversible impact. They will also consider information provided in a Biodiversity Development Assessment Report (BDAR) from a Biodiversity Assessment Method (BAM) accredited ecologist*.
Impact thresholds for potential serious and irreversible impact (SAII) entities can be accessed using the Threatened Biodiversity Data Collection on Bionet. Put simply, the threshold for each population, species or ecological community is set based on the estimated current number of individuals of threatened flora or fauna locally or across NSW, or the size of the ecological community.
In the Bionet database, there are also flora and fauna or ecological communities for which thresholds have not been set.
For example, thresholds have not been assigned to threatened ecological communities such as Blue Gum High Forest in the Sydney Basin or Cumberland Plain Woodland. If there is no threshold, a determination can be made from information in a BDAR and a threshold decision arrived at by council.
While the legislation, principles and criteria frameworks for an SAII determination are in place for councils, the question of a consistent application of impact thresholds across different LGAs then comes into question.
For example, if an impact threshold has not been set on Bionet, how does council decide upon a threshold? Is one council's discretion the same as another? Will a 'green' council apply the same discretion as one that encourages development? Even within one council, individual staff will have varying levels of expertise and capability in population viability analysis in setting such thresholds. Thresholds will need to be objective, not subjective, based on published scientific principles. The principles are found in Section 6.7 of the Biodiversity Conservation Regulation 2017 (see below). Furthermore the personal preferences of such staff may affect their ability to be objective in applying those scientific principles to establish a threshold. The DPIE guide for Councils is:
SAIIs with thresholds are aimed at avoiding the potential for extinction of native flora and fauna in NSW and provide certainty for a consent authority, eg councils. However, if there is an inconsistent approach to SAIIs with no common threshold across different LGAs, how can you plan for a development with the environmental component as an unknown?
The worthy desire of government to increase reliability and certainty in the development approval process may well be very difficult to achieve in this context. We may well be back to appeals and contested hearings in the NSW Land and Environment Court. Key competencies for experts will need to be related to population genetics in order to address those scientific principles.
Abel Ecology has two *BAM accredited ecologists with expertise in population genetics who can provide guidance if your development is subject to an SAII determination or you think that it may go that way.
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The five part test at section 7.3 of the BC Act.
7.3 Test for determining whether proposed development or activity likely to significantly affect threatened species or ecological communities, or their habitats
(1) The following is to be taken into account for the purposes of determining whether a proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats:
(a) in the case of a threatened species, whether the proposed development or activity is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction
(b) in the case of an endangered ecological community or critically endangered ecological community, whether the proposed development or activity:
(i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction
(ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,
(c) in relation to the habitat of a threatened species or ecological community:
(i) the extent to which habitat is likely to be removed or modified as a result of the proposed development or activity, and
(ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed development or activity, and
(iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species or ecological community in the locality,
Criterion
Area and quality of habitat within the locality (maps, photos, survey)
Area and quality of habitat on site in relation to the area and quality of habitat in the locality
Role of habitat to be affected in sustaining habitat connectivity in the locality
Ecological integrity of habitat to be affected on site, in relation to the ecological integrity, tenure and security of the habitat which will remain both on site and in locality.
(d) whether the proposed development or activity is likely to have an adverse effect on any declared area of outstanding biodiversity value (either directly or indirectly),
e) whether the proposed development or activity is or is part of a key threatening process or is likely to increase the impact of a key threatening process.
Section 6.7 of the Biodiversity Conservation Regulation 2017
6.7 Principles applicable to determination of “serious and irreversible impacts on biodiversity values” (section 6.5 (1))
(1) This clause applies for the purposes of determining whether an impact on diversity values is a serious and irreversible impact for the purposes of the biodiversity offsets scheme.
(2) An impact is to be regarded as serious and irreversible if it is likely to contribute significantly to the risk of a threatened species or ecological community becoming extinct because:
(a) it will cause a further decline of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to be in a rapid rate of decline, or
(b) it will further reduce the population size of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to have a very small population size, or
(c) it is an impact on the habitat of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to have a very limited geographic distribution, or
(d) the impacted species or ecological community is unlikely to respond to measures to improve its habitat and vegetation integrity and therefore its members are not replaceable.
(3) For the purpose of this clause, a decline of a species or ecological community is a continuing or projected decline in:
(a) an index of abundance appropriate to the taxon, or
(b) the geographic distribution and habitat quality of the species or ecological community.