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Last updated: 6 November 2008
6.4 Private land conservation
1 Overview
Key to terms used in this Fact Sheet
Act means the Threatened Species Conservation Act 1995
Biobanking Scheme means the new Biodiversity Banking Scheme allowing the creation and sale of biodiversity credits, established under Part 7A of the Threatened Species Conservation Act 1995.
DECCW means the NSW Department of Environment, Climate Change and Water
Environment Minister means the NSW Minister for Environment, Climate Change and Water
NPWS means the NSW National Parks & Wildlife Service within DECCW.
Conservation on private land is an important element of biodiversity protection. In NSW, approximately 8% of land is held in protected areas, such as national parks,1 however many of the major threats to biodiversity take place on private land, such as agricultural practices, grazing and land clearing.
There is now a broad consensus that relying on protected areas alone will not stem the tide of biodiversity loss, and that we need to develop mechanisms which allow private landholders to protect vegetation and habitat on their land.
This fact sheet explains the legal mechanisms by which landholders in NSW can voluntarily conserve areas of ecological value on their properties. They range from non-binding, temporary agreements (wildlife refuges) to binding agreements that are attached perpetually to the land title (biobanking agreements and conservation agreements).
1.1 Useful web links
NSW Department of Environment, Climate Change and Water website on Biobanking
Environmental & Planning Law in New South Wales, by Lyster, Lipman, Franklin, Wiffen and Pearson, The Federation Press (2007), Chapter 9 Protected areas, pp 342 - 379
The Environmental Law Handbook, Farrier and Stein, eds, 4 th ed, Redfern Legal Centre Publishing, (2006), Chapter 11, Biodiversity conservation, pp 401-419.
2 Biobanking agreements
In 2008, the NSW Government introduced a new scheme under which landowners can be granted biodiversity credits in return for agreeing to protect threatened vegetation and threatened species on their private land.
This is known as the ‘Biodiversity Banking and Offsets Scheme' (“Biobanking Scheme”). The main purpose of the Biobanking Scheme is to give landowners a financial incentive to protect biodiversity on their properties. Once a landowner has been granted biodiversity credits, they can then sell them to a developer who may be required to purchase them to offset the impact of their development.
2.1 When did the Biobanking Scheme commence?
The Scheme was created by inserting a new Part 7A (Biodiversity banking) into the Threatened Species Conservation Act 1995.The new biobanking provisions came into force on 4 December 2006.2
However, in practice, the Biobanking Scheme did not commence operation until 11 July 2008 when the supporting regulations and methodologies3 were gazetted.4
2.2 How do I establish a biobank site on my private land?
The first step is to make a general assessment of whether your land is suitable for a biobank site. Land which has good native vegetation and which is home to many native plants and animals is likely to make a good site. A biobank site can only be established over land which contains threatened vegetation or habitat for threatened species as defined under the Threatened Species Conservation Act 1995. Biobank sites are not used to protect vegetation which is not particularly threatened or endangered.
To begin the process of establishing a biobank site, a landowner must engage an accredited Biobanking Assessor.5 The Assessor prepares an assessment of their land using an approved Biobanking Assessment Methodology and the Biobanking Credit Calculator to estimate how many credits can be issued. This assessment is then submitted to DECCW with an application to establish a biobank agreement.6
Establishing a biobank site is voluntary. The site can cover the whole or only a part of a property, thus allowing other primary production activities (eg grazing) to be carried on.
Expressions of interest to establish a biobank site
Landowners who wish to consider establishing a biobank site on their land can lodge an expression of interest (EOI) form with DECCW.
All expressions of interest are entered onto a public register which contains information about the size, general location, vegetation and threatened species on the potential biobank site. By entering an EOI on the public register, the landowner can determine whether there is any interest from a potential credit purchaser. Submitting an EOI does not carry any obligation and is free of charge.
Biobank sites are created through biobanking agreements. Once a landowner has identified a potential biobank site, the landowner can then enter into a biobanking agreement with the Environment Minister.7
A biobanking agreement sets out the management actions that the landowner must take to protect and improve the biodiversity values on their land in order to receive credits.
The sorts of management actions that might be required under an agreement will depend upon the vegetation or species which will be protected on each site, but could include:
managing grazing
reducing fire risk
weed control
controlling feral animals
limiting human disturbance.
Management actions taken under a biobanking agreement are exempt development and therefore do not need development consent.8
The amount and type of credits that can be created for the site are specified in the biobanking agreement.9
2.2.2 Land that cannot be used for a biobank site
Land cannot be designated as a biobank site if:10
any previous, current or proposed use of the land (or adjacent land) is inconsistent with biodiversity conservation
The land is the subject of an offset under a property vegetation plan under the Native Vegetation Act 2003
The land is already the subject of a requirement to carry out biodiversity conservation as a condition of a development consent
The land is reserved under Part 4 or Part 4A of the National Parks and Wildlife Act 1974.
2.2.3 How long does a biobanking agreement last?
A biobanking agreement has effect in perpetuity, unless it is terminated by both parties, or by the Minister alone.11 The landholder can voluntarily terminate the agreement within 3 months after it is entered into if no credits have been created, or after 5 years if the landowner is still holding all the credits.12
A biobanking agreement is registered on the land title.13 The agreement runs with the land and therefore binds both current and future owners of the land.14
2.2.4 Public register for biobanking agreements
The biobanking agreement is then entered onto a public register.15
As part of the Biobanking Scheme, DECCW has established the Land Alive project. Land Alive provides specific assistance to Aboriginal communities to help them to participate in the new Biobanking Scheme. For example, an Aboriginal community might wish to establish a biobank site over Aboriginal land in order to develop an income stream from that land which can cover the costs of protecting and improving the land.
Land Alive offers Aboriginal communities support services, including:
Assistance to map and assess the biodiversity of Aboriginal land;
Training in land management and employment services;
Advice on participating in the Biobanking Scheme; and
Support for starting a small business focusing on land management.
For more information on the Land Alive project, you can:
Download the Land Alive brochure from the DECCW website
Call the Land Alive team at DECCW on (02) 9995 5000
Once a landowner has a biobanking agreement, they can then apply to have credits (ecosystem credits or species credits) issued.
The landowner can then sell their biodiversity credits on the open market, generating an alternative source of income to help them manage their land for conservation. The landowner can decide who they will sell their credits to, the price of their credits, and when they will be sold.
2.3.1 Who buys biobank credits?
Examples of people who may wish to buy biodiversity credits include:
developers, who may be required to purchase a certain amount of credits to offset the impacts of their development;
voluntary purchasers who wish to participate in conserving biodiversity; and
investors, who may wish to buy them and resell them for a profit at a later date.
Working example of how a landowner can generate credits
A landholder owns 500 hectares. The landholder decides to establish a biobank site over 200 of those hectares, and receives 1,000 credits.
The landowner sells the credits for $500,000 (being $500 per credit). Approximately $300,000 of that money must be deposited by the landowner into the Total Fund Deposit to cover the reporting and management costs over the life of the biobanking agreement. The balance of $200,000 would be paid directly to the landowner.
From the $300,000 which was paid into the Total Fund Deposit, the landowner would receive, say:
Year 1 - $150,000
Year 2 - $100,000
Year 3 - $25,000
Year 4 - $25,000.
The precise amount of all of these payments must be set out in the biobanking agreement.17
2.3.2 Biobanking Trust Fund
When credits are first sold, part of the sale price must be paid into the Biobanking Trust Fund (Total Fund Deposit).
The Fund invests money generated by the sale of biodiversity credits from biobank owners, and the income generated is used to make scheduled annual payments to landowners to help them meet the long term costs of managing their biobank site.16
2.3.3 Enforcement and compliance
Biobanking agreements are legally enforceable. They can be enforced not only by the Environment Minister, but by any person in the Land and Environment Court.18 A serious breach of a biobanking agreement can result in the Land and Environment Court ordering the ownership of the land be transferred to the Environment Minister on payment of just terms compensation.19
DECCW has published a Compliance Assurance Strategy which sets out how the Department will ensure that landowners fulfill their obligations under their biobanking agreement.
The Department of Environment, Climate Change and Water has published a general guide to the biobanking scheme and how it works. Click here to go to the Biobanking Scheme Overview
Or call the Biobanking Helpline, a free information service on Biobanking run by DECCW on (02) 9995 6753.
2.4 Interaction between biobanking agreements, conservation agreements and wildlife declarations
The Biobanking Scheme was designed to complement the Government's existing natural resource management measures. Participation in existing conservation programs can, on the one hand, coexist with participation in the Biobanking Scheme. On the other hand, participating in conservation programs can affect your eligibility to participate in a BioBanking Scheme, and vice versa. Below is an overview of how the various conservation programs relate to one another.
The BioBanking Scheme should not interfere with existing conservation programs or compulsory development. This is because the BioBanking Scheme is a market-based biodiversity offsetting scheme. BioBanking Schemes are based upon biodiversity credits, and these credits can only be generated for additional actions to existing biodiversity management actions. This principle of ‘additionality' is set out in the BioBanking Assessment Methodology.
There is a grace period in which participation in both an existing conservation program as well as a BioBanking Scheme is permitted. This grace period ends on 9 March 2009. After this date, the principle of ‘additionality' applies.
3 Property vegetation plans
Property vegetation plans are made under the Native Vegetation Act 2003.20 Although they are usually used as a means of regulating land clearing (eg clearing is permitted only in accordance with a property vegetation plan), they can also be used as a voluntary conservation measure.
Property vegetation plans are prepared by a landholder, and submitted to the Director-General for approval by the Minister for Climate Change and the Environment.21 A landholder might choose to enter into a property vegetation plan voluntarily in order to attract funding from a catchment management authority or other government funding program for managing the native vegetation on their property.22
Unlike biobanking agreements which only cover vegetation which is threatened (and habitat for threatened species), property vegetation plans can cover all types of native vegetation.
See Fact Sheet 5.3 for more information on property vegetation plans.
4 Conservation agreements (NSW)
In NSW, a landowner can enter into a permanent conservation agreement with the Minister for Environment and Climate Change under the National Parks and Wildlife Act 1974 (NSW).23
Conservation agreements are voluntary. Although the land remains in the ownership of the landholder, the landowner and future landowners are all bound by the agreement.
Conservation agreements are used to permanently protect land which has special features, such as high quality vegetation, habitat, scenery, Aboriginal objects or places, threatened species habitat or threatened vegetation, or buildings on a certain parcel of land.24 In this respect they can protect a broader range of things than a biobanking agreement, which can only be used where the vegetation is threatened or if there are threatened species (or their habitat) on the site.
4.1 Agreement runs with the land
An agreement is registered on the title of the land, runs with the land, and therefore binds future owners of the land.25 Agreements operate in perpetuity, unless the agreement specifies otherwise26 or it is terminated with the consent of all parties.27 The Minister can also unilaterally terminate an agreement if it is no longer effective.28
Conservation agreements are legally enforceable in the Land and Environment Court (Class 4).29 Statutory authorities cannot develop land covered by a conservation agreement without the Environment Minister's agreement.30 Conservation agreements are entered on a public register.31
It is an offence to harm native flora or pick native plants if the land is covered by a conservation agreement, (although there are many exceptions to these offences).32
4.2 Financial and technical assistance
In return for protecting land in accordance with a conservation agreement, a landowner can receive financial and technical assistance to help them protect and manage their land. This might include things such as receiving assistance with fencing materials, plant and animal surveys, and stabilisation works.33
Land which is covered by a conservation agreement is exempt from local council rates,34 or if only part of a property is covered by the agreement, then the landowner is entitled to a rate reduction.35
4.3 National Parks and Wildlife Service
The National Parks and Wildlife Service within DECCW is responsible for making and administering conservation agreements on behalf of the Environment Minister.
Case Study: Bow Wow Creek Gorge Conservation Agreement
To protect the vulnerable and endangered flora and fauna of 65 hectares of bush land at Mount Vincent, south west of Cessnock, a Conservation Agreement between owners, Colin and Pamela Fitzsimmons, and the Minister for the Environment was created in 2005.
More than 150 species of bird are found in the area, including species such as the powerful owl, grey goshawk, raven, kingfishers, gerygone, brown treecreeper, as well as certain rare plants and other flora, including ferns, orchids, Callistemon shiressii, Macrozamia flexuosaand cycads.
The objectives of the agreement include more effective and controlled action on weeds, greater control of the spread of possible bushfire and other threats of erosion. There is regular spot spraying in the area. The agreement was also formed in order to enhance protection of the area against future industry interruptions, for example coal mining, which is rapidly increasing in the region.
5 Wildlife refuge declarations
A private landowner can nominate the whole or part of their property to be a wildlife refuge under the National Parks and Wildlife Act 1974. If the nomination is accepted, the NSW Governor then declares the land to be a voluntary wildlife refuge by making a proclamation in the Government Gazette.36
Case study: Half Moon Flat Wildlife Refuge, Mongarlowe
Half Moon Flat, located between Braidwood and Morton National Park on Mongarlowe River in NSW, has been a Wildlife Reserve with multiple owners since 1985. Prior to this, the area was used for grazing until 1972, when environmentalist Stewart Harris decided to claim the land as the Wildlife Refuge. He was concerned about the threat of possible damage caused by trespassers to such a pristine wildlife habitat.
In 1985, much of the land was divided into parts and sold, but with the condition to sign onto the wildlife refuge agreement. Nearly all new owners since that time have pledged to carry on and continue to keep the Wildlife Refuge. Despite several attempts to build a mining development in the area, as well as some bushfires during those years, private owners have fought to maintain the Refuge for conservation purposes. They have established ‘Friends of the Mongarlowe River Inc.', with 11 Half Moon residents, which aims at the protection of the Mongarlowe River and its surrounding habitats.
The area is habitat for a wide diversity of birds, animals and some rare plants in the Half Moon. Swamp and red necked wallabies, quolls, echidnas, wombats, platypus, gang gang cockatoos, Rufous Wistler, Eucalyptus recurva and Boronia rhomboidea can all be found in the Refuge area, which measures approximately 2500 acres.
5.1 Voluntary and non-binding
Wildlife refuge declarations are voluntary and non-binding. They are used by landowners who wish to improve their capacity to manage areas for local wildlife species on their land. Once an area has been declared as a wildlife refuge, the landowner can receive technical assistance and advice about how they can manage that area for wildlife.
Once the declaration is gazetted, it is noted on the property title. However, a declaration is not a binding agreement that runs with the land and binds successive landowners, unlike a biobanking agreement or conservation agreement (see above). A wildlife refuge declaration can be varied or revoked at any time.37
5.2 National Parks & Wildlife Service
Wildlife refuges are managed by the National Parks and Wildlife Service, which operates within DECCW. NPWS can assist with identifying land which is suitable for a wildlife refuge, and can help to prepare a property report and management plan.
A private landowner may choose to manage and protect their land (or part of their land) through an agreement with the Nature Conservation Trust.38 By entering into an agreement with the Trust (a conservation covenant), a person can permanently protect the conservation values of their land beyond their lifetime because the agreement is registered over the title, and the Trust undertakes to ensure that it is enforced.
6.1 Nature Conservation Trust
The Nature Conservation Trust is a non-profit, not-government entity, established under the Nature Conservation Trust Act 2001. The Act is administered by the Minister for Environment and Climate Change. One of the major roles of the Trust is to enter into agreements (covenants) with landowners in order to secure the long term protection of private lands of high nature conservation value.
The Trust is particularly interested in covenanting land which has significant environmental values, such as land containing habitat for endangered species or ecological communities, wetlands, and land which forms a wildlife corridor or buffer to other conservation areas.
6.2 Trust Agreements are binding and legally enforceable
The Trust agreement is registered on the title of the property and runs with the land, thereby binding successors in title.39 The Trust assumes the legal obligation to uphold the agreement, particularly in the case where a subsequent owner may not be complying with the agreement. The Trust supports, monitors and defends all of its agreements through a long term Stewardship Program.
Trust agreements generally last in perpetuity, although their term can be fixed under the agreement.40 Trust agreements are binding on the parties,41 and can be enforced by either party in the Land and Environment Court.42 All Trust agreements are available on a public register.43
In return for entering into an agreement, a landowner can receive financial assistance and technical advice from the Trust on things such as flora and fauna management, and weed and vermin control.44 The Trust can also direct landowners to opportunities to apply for grants and subsidies.
A Trust agreement cannot stop mining taking place on land under the Mining Act 1992.
The Nature Conservation Trust also receives government grants, private donations of money and land, and bequests of money and land.45 Land which is bought or bequeathed is covenanted and then resold. In this way, the Trust operates a Revolving Fund46 to increase conservation protection on private land.
Listing of a wetland as a Ramsar wetland provides international recognition of the importance of that wetland. Ramsar wetlands are protected under the Environment Protection and Biodiversity Conservation Act 1999. Ramsar wetlands can be declared over public or private land.
The potential to protect a wetland as a ‘Ramsar wetland' under the EPBC Act is particularly important in NSW because wetlands are significantly under-represented in the NSW reserve system, with most being located on private and leasehold land.47
In January 2006, there were 11 Ramsar wetlands in NSW, with only three of these being over private land (Gwydir Wetlands, a small part of the Hunter Estuary – Shortland Wetlands, and the Wilgara Wetlands in the Macquarie Marshes).48 All other Ramsar wetlands relate to land which is held as Crown land or a national park or reserve.
Landholders who wish to consider protecting the wetlands on their property as a “Ramsar Wetland” should contact the Commonwealth Department of Environment, Water, Heritage and the Arts.
For more information on Ramsar wetlands, see Fact Sheet 3.1 on the Environment Protection and Biodiversity Conservation Act 1999.
8 Privately owned reserves
Over the past decade, a range of non-profit, conservation organisations have been established for the purpose of creating privately owned reserves. These organisations buy private land of high conservation value, and protect the land by holding it in perpetuity and managing it to improve its capacity to support biodiversity.
The impetus for developing privately held reserves comes from largely from the recognition that biodiversity is not adequately protected in Australia by relying on public reserves alone (such as national parks).
Some of the conservation organisations which have established privately owned reserves are described below.
8.1 Australian Wildlife Conservancy
The Australian Wildlife Conservancy was established in 2001 as an independent, non-profit organisation dedicated to the conservation of Australia's threatened wildlife and ecosystems.
It acquires land to establish sanctuaries for the conservation of threatened species, and implements management programs such as to eradicate feral animals and weeds.
Bush Heritage Australia (formerly the Australian Bush Heritage Fund) is a national non-profit organisation which buys or acquires land of outstanding conservation value, and then manages and protects that land in perpetuity.
It aims to purchase properties which will secure key ecological assets within particular regions, for example, by linking together fragmented habitat and creating wildlife corridors.
NSW State of the Environment Report 2006, Table 6.4 Types of NSW terrestrial protected areas.
Threatened Species Conservation Amendment (Biodiversity Banking) Act 2006 (No 125).
The methodologies are established under the Threatened Species Conservation Act 1995, s 127B.
Threatened Species Conservation Act 1995, s 127B(9). The Threatened Species Conservation (Biodiversity Banking) Regulation 2008 and the Threatened Species Conservation (Biobanking Assessment Methodology) Order 2008 were both gazetted on 11 July 2008: NSW Government Gazette No 87, p 6898 (Regulation), and pp 7101 – 7153 (Order).
Threatened Species Conservation Act 1995, s 142B, Threatened Species Conservation (Biodiversity Banking) Regulation 2008, cl 12.
Threatened Species Conservation Act 1995, s 127W.
Threatened Species Conservation Act 1995, s 127D. Threatened Species Conservation (Biodiversity Banking) Regulation 2008, cl 14.
Threatened Species Conservation Act 1995, s 127K.
Threatened Species Conservation Act 1995, s 127E.
Threatened Species Conservation (Biodiversity Banking) Regulation 2008, cl 11.
Threatened Species Conservation Act 1995, s 127G.
Threatened Species Conservation Act 1995, s 127G(6).
Threatened Species Conservation Act 1995, s 127I.
Threatened Species Conservation Act 1995, s 127E and s 127J..
Threatened Species Conservation Act 1995, s 127X.
Threatened Species Conservation (Biodiversity Banking) Regulation 2008, cl 29.
See Biobanking Scheme Overview (Nov 2007), Department of Environment & Climate Change, Worked Example on p 13, for the example on which the above example is drawn.
Threatened Species Conservation Act 1995, s 127L.
Threatened Species Conservation Act 1995, s 127O.
Native Vegetation Act 2003, Part 4, ss 26 – 32. See also the Native Vegetation Regulation 2005, Part 3, cll 7 – 12B, which set out many provisions regarding the form, content and public information given regarding property vegetation plans.
Native Vegetation Act 2003, s 26.
Native Vegetation Act 2003, s 28(d).
National Parks and Wildlife Act 1974, Division 12, s 69B.
National Parks and Wildlife Act 1974, s 69C.
National Parks and Wildlife Act 1974, s 69E and s 69F.
National Parks and Wildlife Act 1974, s 69C(2).
National Parks and Wildlife Act 1974, s 69D.
National Parks and Wildlife Act 1974, s 69D(4).
National Parks and Wildlife Act 1974, s 69G, and Land and Environment Court Act, s 20(1)(ce).
National Parks and Wildlife Act 1974, s 69I.
National Parks and Wildlife Act 1974, s 69H.
National Parks and Wildlife Act 1974, s 70 and 71. Section 5 defines a “conservation area” as land subject to a conservation agreement.
National Parks and Wildlife Act 1974, s 69C(2) and (3).
Local Government Act 1993, s 555(1)(b1).
Local Government Act 1993, s 555(3).
National Parks and Wildlife Act 1974, s 68(1).
National Parks and Wildlife Act 1974, s 68(6).
Nature Conservation Trust 2001, s 30.
Nature Conservation Trust 2001, s 36 and 37.
Nature Conservation Trust 2001, s 34.
Nature Conservation Trust 2001, s 32.
Nature Conservation Trust 2001, s 38.
Nature Conservation Trust 2001, s 39.
Nature Conservation Trust 2001, s 33.
Nature Conservation Trust 2001, s 14 and 15.
Nature Conservation Trust 2001, s 7.
NSW State of the Environment Report 2006, Chapter 6.7 Aquatic protected areas.
NSW State of the Environment Report 2006, Table 6.4 Types of NSW terrestrial protected areas.
