Freehills has put together Australia’s first BioBanking agreement in which land owned by the Missionaries of the Sacred Heart at St Mary’s Tower near Douglas Park, NSW will be protected in perpetuity in return for ‘biodiversity credits’, in this case purchased by the NSW Department of Environment, Climate Change and Water.
Freehills partner Peter Briggs said this was groundbreaking legal work and the contractual process involved complex legal issues and novel solutions that would likely set a model for all such activity in the future.
‘This policy recognises the limitations of ‘command and control’ planning instruments in protecting biodiversity in the long term,’ he said. ‘It creates a market mechanism to put a price on biodiversity and create economic incentives for preservation of high value sites. Similar legislation is in place in Victoria and being considered in Queensland and by the Federal Government.
The agreement is administered under the NSW Government’s Biodiversity Banking and Offsets Scheme (or BioBanking), a market-based scheme that provides a streamlined biodiversity assessment process for development approval, a rigorous and credible offset scheme as well as an opportunity for landowners to generate income by managing their land for conservation.
BioBanking enables ‘biodiversity credits’ to be generated by landowners who commit to enhance and protect biodiversity values on their land through a BioBanking Agreement. These credits can then be sold, generating funds for the management of the site as well as value for the landowner’s property. Credits can be used to counterbalance (or offset) the impacts on biodiversity values that are likely to occur as a result of development on other lands with similar biodiversity. The credits can also be sold to those seeking to invest in conservation outcomes, including developers, miners, government and philanthropic organisations.
Freehills consultant, John Taberner said land owners can create significant financial value from their property by agreeing to preserve its biodiversity.
‘Local or state government may also choose to make it a condition of development consent to require the purchase of biodiversity credits,’ he said. ‘This would make it attractive to buy land with high biodiversity value, either to obtain credits for use in developing other comparable land, or for the land’s own value through the scheme.’
The Agreement between the Society and the DECCW is the first of its kind and it is hoped that it will provide an efficient platform for similar agreements to be entered into with other landowners in the near future. The Society was advised by Freehills.
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