6.4 Private land conservation

6.4.1 Overview

Conservation on private land is an important element of biodiversity protection. In NSW, just over 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 and encourage 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 (such as wildlife refuges) to binding agreements that are attached perpetually to the land title (such as conservation agreements).

6.4.1.1 Useful web links

• DECCW website on conservation programs :
• DECCW website on Biobanking:
• Nature Conservation Council website on biobanking:
• Nature Conservation Trust website on Trust Agreements
• NSW Environmental Defender's Office Publication 'A Guide to Private Conservation in NSW'

6.4.1.2 Useful legal texts

• 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.

6.4.2 Conservation agreements (NSW)

In NSW, a landowner may enter into a permanent conservation agreement with the Environment Minister under the National Parks and Wildlife Act 1974 (NSW).2

Conservation agreements are entered into voluntarily. Once signed, they are binding. 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.

For further information see Section 2 of the NSW Environmental Defender's Office publication 'A Guide to Private Conservation in NSW'

6.4.2.1 Agreement runs with the land

A conservation agreement is registered on the title of the land, runs with the land, and therefore binds future owners of the land.3 Agreements operate in perpetuity, unless the agreement specifies otherwise4 or it is terminated with the consent of all parties.5 The Environment Minister may also unilaterally terminate an agreement if it is no longer effective.6

Conservation agreements are legally enforceable in the Land and Environment Court.7 Statutory authorities cannot develop land covered by a conservation agreement without the Environment Minister's agreement.8 Conservation agreements are entered on a public register.

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).10

6.4.2.2 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.11

Land which is covered by a conservation agreement is exempt from local council rates,12 or if only part of a property is covered by the agreement, then the landowner is entitled to a rate reduction.13

6.4.3 Nature Conservation Trust agreements

A private landowner may choose to manage and protect their land (or part of their land) through an agreement with the Nature Conservation Trust.14 By entering into a conservation agreement with the Trust, 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.

6.4.3.1 Nature Conservation Trust

The Nature Conservation Trust is a non-profit, non-government entity, established under the Nature Conservation Trust Act 2001. The Act is administered by the Environment Minister. One of the major roles of the Trust is to enter into agreements 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.

The Nature Conservation Trust also receives government grants, private donations of money and land, and bequests of money and land.15 Land which is bought or bequeathed is covenanted and then resold. In this way, the Trust operates a Revolving Fund16 to increase conservation protection on private land.

6.4.3.2 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.17 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.18 Trust agreements are binding on the parties,19 and can be enforced by either party in the Land and Environment Court.20 All Trust agreements are available on a public register.21

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.22 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.

6.4.4 Property vegetation plans

Property vegetation plans are made under the Native Vegetation Act 2003.23 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 local Catchment Management Authority for approval.24 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.25

See fact sheet 5.3 for more information on property vegetation plans.

6.4.5 Wildlife refuges

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 wildlife refuge by making a proclamation in the Government Gazette.26

6.4.5.1 Voluntary and binding while in place

Wildlife refuges are voluntary and are binding while they are in place. Once the declaration is gazetted, it is noted on the property title. However, unlike conservation agreements or trust agreements, a landholder can easily revoke a wildlife refuge declaration and future landholders do not have to be bound by the wildlife refuge agreement if they do not wish to be.27

Wildlife refuges 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.

6.4.5.2 Department of Environment, Climate Change and Water

Wildlife refuges are managed DECCW. DECCW can assist with identifying land which is suitable for a wildlife refuge, and can help to prepare a property report and management plan.

6.4.6 Biobanking Scheme

In 2008, the NSW Government introduced a scheme under which landowners may be granted biodiversity credits in return for agreeing to protect threatened vegetation and threatened species on their 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 may then sell them to a developer who may be required to purchase them to offset the impact of their development.

6.4.6.1 Biobanking agreements

Biobank sites are created through biobanking agreements. Once a landowner has identified a potential biobank site, the landowner may then enter into a biobanking agreement with the Environment Minister.28

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. Biobanking agreements are legally enforceable. They may be enforced by the Environment Minister or by any person in the Land and Environment Court.29 A serious breach of a biobanking agreement may 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.30

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.

The amount and type of credits that can be created for the site are specified in the biobanking agreement.31

6.4.6.1.1 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.32 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.33

A biobanking agreement is registered on the land title.34 The agreement runs with the land and therefore binds both current and future owners of the land.35

6.4.6.1.2 Public register for biobanking agreements

The biobanking agreement is then entered onto a public register.36

6.4.6.1.3 Land Alive - Biobanking for Aboriginal landowners

As part of the Biobanking Scheme, DECCW has established the Land Alive (Aboriginal land management for biodiversity) project. Land Alive provides specific assistance to Aboriginal communities to help them to participate in the 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:

• Download the Land Alive brochure from the DECCW website. Call the Land Alive team at DECCW on (02) 9995 5000
• Email the Land Alive team at DECCW on landalive@environment.nsw.gov.au

6.4.6.2 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 in line with the biobanking agreement.37

6.4.6.3 Interaction between biobanking agreements, conservation agreements and wildlife declarations

The Biobanking Scheme was designed to complement the NSW 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, participation in conservation programs may 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.

A grace period in which participation in both an existing conservation program as well as a BioBanking Scheme was permitted. This grace period ended on 9 March 2009. After that date, the principle of 'additionality' applies.

6.4.7 Ramsar wetlands

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 (EPBC Act). 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 public reserve system, with most being located on private and leasehold land.38

Landholders who wish to consider protecting the wetlands on their property as a "Ramsar Wetland" should contact the Commonwealth Department of Sustainability, Environment, Water, Population and Communities.

For more information on Ramsar wetlands, see Fact Sheet 3.1 on the Environment Protection and Biodiversity Conservation Act 1999 and Fact Sheet 6.3 on Protected Areas.

6.4.8 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 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.

6.4.8.1 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.

6.4.8.2 Bush Heritage Australia

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.

1. NSW State of the Environment Report 2009, Table 7.6 Extent and types of terrestrial protected areas
2. National Parks and Wildlife Act 1974, Division 12, s. 69B.
3. National Parks and Wildlife Act 1974, s. 69E and s. 69F.
4. National Parks and Wildlife Act 1974, s. 69C(2).
5. National Parks and Wildlife Act 1974, s. 69D.
6. National Parks and Wildlife Act 1974, s. 69D(4).
7. National Parks and Wildlife Act 1974, s. 69G, and Land and Environment Court Act, s. 20(1)(ce).
8. National Parks and Wildlife Act 1974, s. 69I.
9. National Parks and Wildlife Act 1974, s. 69H.
10. National Parks and Wildlife Act 1974, s. 70 and 71. Section 5 defines a "conservation area" as land subject to a conservation agreement.
11. National Parks and Wildlife Act 1974, ss. 69C(2) and (3).
12. Local Government Act 1993, s. 555(1)(b1).
13. Local Government Act 1993, s. 555(3).
14. Nature Conservation Trust Act 2001, s. 30.
15. Nature Conservation Trust 2001, s 14 and 15.
16. Nature Conservation Trust 2001, s 7.
17. Nature Conservation Trust Act 2001, ss. 36 and 37.
18. Nature Conservation Trust 2001, s. 34.
19. Nature Conservation Trust 2001, s. 32.
20. Nature Conservation Trust 2001, s. 38.
21. Nature Conservation Trust 2001, s. 39.
22. Nature Conservation Trust 2001, s. 33.
23. 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.
24. Native Vegetation Act 2003, s. 26.
25. Native Vegetation Act 2003, s. 28(d).
26. National Parks and Wildlife Act 1974, s. 68(1).
27. National Parks and Wildlife Act 1974, s. 68(6).
28. Threatened Species Conservation Act 1995, s. 127D; Threatened Species Conservation (Biodiversity Banking ) Regulation 2008, cl. 14.
29. Threatened Species Conservation Act 1995, s 127L.
30. Threatened Species Conservation Act 1995, s 127O.
31. Threatened Species Conservation Act 1995, s. 127E.
32. Threatened Species Conservation Act 1995, s. 127G.
33. Threatened Species Conservation Act 1995, s. 127G(6).
34. Threatened Species Conservation Act 1995, s. 127I.
35. Threatened Species Conservation Act 1995, s. 127E and s 127J..
36. Threatened Species Conservation Act 1995, s. 127X.
37. Threatened Species Conservation (Biodiversity Banking) Regulation 2008, cl. 29.
38. NSW State of the Environment Report 2006, Chapter 6.7 Aquatic protected areas.

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