Draft Biodiversity Offset Scheme Changes for Developers
The NSW Government has released draft changes to the Biodiversity Offset Scheme, here is a simple breakdown of the implications for developers.
The draft regulation aims to reduce projects entering the scheme and to be more explicit about what an assessment must contain.
It also seeks to reduce reliance on payments into the Biodiversity Conservation Fund, while putting more of the process on the public record.
The result is that offset obligations will need to be planned early in the project cycle as they may be more difficult to resolve at construction commencement.
BOS trigger changes
A project can enter the Biodiversity Offsets Scheme through several routes:
the area cleared relative to lot size,
a listing on the Biodiversity Values Map,
a declared area of outstanding biodiversity value,
or a statutory test of significance.
The Biodiversity Values Map is the government map of land with biodiversity value, and it is one of the main things that decides whether a project is pulled into the scheme.
The draft gives landholders a way to amend how their land is mapped. A landholder will be able to apply to the Environment Agency Head to amend how the Map applies to their land where they believe they can demonstrate that it is not accurate.
Thresholds will also be changed. Clearing 100 square metres or less of mapped land no longer triggers the scheme through the Biodiversity Values Map, unless the land is a declared area of outstanding biodiversity value.
This narrows one entry route rather than the scheme itself, so a project below the threshold can still be caught another way, such as the area-relative-to-lot-size test. A tool for proponents to check where they sit against the threshold will be required before this can be implemented.
Where development involves subdividing land, the subdivision is now taken to include the clearing that is required, or likely required, for the purposes the land is being subdivided for.
That clearing counts toward the threshold at the subdivision stage. Clearing already counted at that stage is not counted again when later development on the land is assessed against the threshold.
What is a BDAR
The Biodiversity Development Assessment Report (BDAR) is the accredited assessment that establishes a project's impact on biodiversity and the number and class of credits it must retire to offset that impact.
The draft replaces a short clause with a detailed mandatory list. A BDAR will be required to include:
mapping of the site's biodiversity values;
documented feasible alternative impact footprints, with evidence that direct, indirect and prescribed impacts were avoided;
mapping of entities at risk of serious and irreversible impact, with footprints showing how those impacts are avoided;
the number and class of credits required under the like-for-like offset rules;
the accreditation of the person who prepared the report, and the qualifications of anyone commissioned to research it;
where impacts cannot reasonably be avoided, a justification for proceeding; and
where the proponent relies on measures to be taken after approval, management plans that are clear, evidence-based, implementable and enforceable, and that apply the principles of adaptive management.
The change sets a fixed content list every BDAR must meet, so assessors are now working to a checklist rather than deciding what's relevant, making what a BDAR must contain more consistent from project to project.
Requirements apply to reports certified after the relevant provisions commence, with transitional arrangements for reports already underway.
Changes to avoided land
Before a proponent can offset a residual impact, a decision-maker weighs whether they have avoided and then minimised impacts.
The draft sets out when a measure counts as genuine. An assessor may treat a measure as genuine only where it:
was not already legally required when it was identified;
responds to the biodiversity values found on the site;
reduces impact compared both with doing nothing and with taking every practicable measure;
is supported by evidence; and
is independently verifiable.
In practice this means a developer cannot count something they were always going to do, or were already required to do, as a genuine avoidance measure.
Clearer, evidence-based standards should also make assessments more predictable, both for planning a project and for estimating the offset liability that follows.
Credit procurement changes
Retiring 100 credits of the same class via a payment to the Biodiversity Conservation Fund will require a declaration that the developer has taken an approved "acceptable measure" to attempt compliance another way.
The developer must show a genuine attempt to meet the obligation another way, for example by lodging a demand expression of interest and joining a reverse auction, or listing on the credits-wanted register, before the Fund can absorb the obligation above the threshold.
Developers can still source and retire credits directly, and nothing proposed forces them into a particular channel.
Modification changes
Where a consent authority modifies a development consent that changes an offset obligation, the modification draws the full BDAR assessment process back in.
Developers planning changes to approved projects should check whether the change touches an offset obligation before assuming a simple modification path, because the assessment cost and timeline can reappear.
Speeding up development
The draft sets a prescribed period of 10 business days for the concurrence mechanism for State significant development and infrastructure. Concurrence is the sign-off a decision-maker must obtain from the environment agency before approving development that triggers the scheme.
This replaces an open-ended wait with a defined timeframe, and excluding the end-of-year shutdown means the period is not consumed by the holiday break.
A defined concurrence period is useful for anyone sequencing approvals against construction programs and finance.
New public registers
Proposed new registers will:
publish details on areas likely to be subject to serious and irreversible impacts, and
details of refused decisions.
For developers, the refusals register is a useful planning input. Knowing what has been refused, where, and why supports earlier desktop feasibility work, so a proponent can identify projects likely to be refused before committing to costly site assessments.
Accredited Brokers
The draft establishes a mandatory accreditation scheme for conservation brokers. Once it commences, a person must be accredited to provide broking services.
A developer would still be able to source, buy and retire credits directly, without engaging a broker.
Timeline
Have your say. The draft regulation and consultation paper are open for submissions until 5pm on 17 July 2026, by email to the department. Full details and documents are here.
