Can council require a Biodiversity Development Assessment Report for a proposed development in circumstances where prior unlawful clearing has occurred?
Unauthorised development (or clearing) should be dealt with separately as a compliance matter through the appropriate criminal and civil processes. Consideration of previous unauthorised development (or clearing) in the assessment of proposed development is not a compliance action.
In certain circumstances, and separate from compliance action, it may be appropriate for a consent authority to consider the impacts of previous unauthorised development (or clearing) in the assessment of proposed development when it relates to the matters for consideration under section 4.15 the Environmental Planning and Assessment Act 1979 (NSW).
A decision to consider previous unauthorised development (or clearing) will depend on:
- the relevance of past unauthorised development (or clearing) to the matters for consideration under section 4.15 of the Environmental Planning and Assessment Act
- the likelihood of a link between the prior unauthorised development (or clearing) and the subsequent proposed development (for example, the prior development may have been a portion of the full proposed project)
- evidence of the nature and scope of the prior unauthorised development (or clearing).
For example, if a consent authority considers that the impacts of the previous unauthorised development (or clearing) are clearly linked to the proposed development and would have been likely to significantly affect threatened species, there may be good reason to consider what was there before the unauthorised development (or clearing). In such situations, the consent authority may decide that a Biodiversity Development Assessment Report is required.
It is recommended that consent authorities seek independent legal advice for their individual circumstances.