Bilateral agreements can reduce duplication. They allow states or territories to use their own processes to assess actions under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).
The Australian Government updated its agreement with NSW in 2020.
Bilateral agreements allow each state or territory to assess proposed actions (projects or developments) on behalf of the Australian Government.
Bilateral agreements allow each state or territory to assess proposed actions (projects or developments) on behalf of the Australian Government.
They remove the need for a separate assessment, reducing duplication. The Australian Government environment minister uses a state or territory's environmental assessment report to inform the final decision about whether to approve an action.
Your project may need to be assessed under both NSW and Australian Government laws. In this case, the 2 agencies will look to undertake the assessments under the bilateral agreement process. You will need to submit your referral well before the exhibition of your project’s assessment documents. The bilateral agreement will then apply. Referrals should be submitted early in the NSW assessment process.
NSW Department of Planning, Housing and Infrastructure
The NSW Department of Planning, Housing and Infrastructure is responsible for the Environmental Planning and Assessment Act 1979. For information on this law visit Environmental Planning and Assessment Act 1979.
Assessment agreement with NSW
Under the assessment bilateral agreement, the Commonwealth minister can use the NSW process to inform an assessment of the impacts of any eligible action.
In March 2020, the NSW and Australian governments signed Amending Agreement No. 1 in response to changes to NSW legislation. This updated the 2015 assessment bilateral agreement made under section 45 of the EPBC Act.
Amending Agreement No. 1 (PDF 2 MB)
Amending Agreement No. 1 (DOCX 162 KB)
The agreement now includes 2 new pages, with additions and deletions, in Attachment A.
Amending Agreement No. 1 took effect on 24 March 2020. The original agreement still applies for projects the NSW Government was already assessing.
Find out more
- NSW Bilateral Agreement Public Comment report (PDF 4.2 MB)
- public consultation on previous agreements
- notice of intent to enter into Amending Agreement No. 1 (PDF 33 KB)
- the Commonwealth minister’s Statement of Reasons (PDF 2.9 MB)
Agreement reviews
Section 65 of the EPBC Act requires a review of the Agreement's operation at least once every 5 years.
An evaluation was completed by Resource Strategies to inform the Review. It used the revised KPIs agreed by the Committee in 2023 as framework for the evaluation.
In addition, the 2025 Review addressed three key questions:
- How matters required by the Bilateral Agreement are addressed in NSW assessments.
- The effectiveness of the Australian Government’s endorsement of NSW offset approaches to ensure long-term environmental outcomes for relevant matters of MNES.
- The effectiveness of the Bilateral Agreement in reducing duplication in regulatory processes.
The review found the agreement continues to achieve strategic and operational effectiveness, while successfully reducing duplication in regulatory processes.
It identified a number of key priorities to support continuous improvement of the effectiveness of the agreement’s implementation:
- NSW and Australian governments should continue to take every opportunity to streamline processes for major projects in NSW, by reducing duplication of effort and cost for governments and proponents.
- The investment in collaborative work on Bilateral Agreement implementation should be maintained.
- The process improvement opportunities highlighted in the KPI Evaluation Report should be implemented, as these collectively offer an opportunity for continuing improvement.
Updates to the bilateral assessment agreement between NSW and the Australian Government will be needed. This is to ensure it is consistent with reforms to the EPBC Act and to NSW’s planning system. This is an opportunity to consider the outcomes of the 5-year review as well as environmental reform.
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Together with us, NSW finalised the first review of the Bilateral Assessment Agreement in November 2021.
The review identified several priorities to make the agreement's operation more effective. These included:
- reviewing the existing key performance indicators (KPIs) and strategy. This ensures that they best support and measure environmental and efficiency goals
- clarifying roles and educating stakeholders on the bilateral assessment process
- reviewing capacity-building measures and governance arrangements to ensure they're effective, efficient and timely
- exploring ways to improve state assessment reports, so they better support our decision-makers
- exploring ways to increase offset impact mitigation transparency for protected matters. This includes ensuring that offsets meet environmental goals.
We worked together with the NSW Government to implement these priorities. We continued to monitor how offsets are secured under NSW offsetting arrangements for protected matters.
As part of undertaking the review, Nous Group evaluated how the agreement had performed.
The length of time since an offset has been secured can significantly influence how effective a review is. Due to the timing of the review, only 11 projects made up the data set. The 2025 review considered a much larger set. This provides statistically better data. It will reveal more meaningful findings on the effectiveness of the agreement.
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First five-year review of the Bilateral Agreement relating to environmental assessment (PDF 445 KB)
First five-year review of the Bilateral Agreement relating to environmental assessmentt (DOCX 223KB)
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The original agreement included a 12-month review to see if it was meeting its objectives. Since no project assessments were completed under the agreement, the review took place after 2 years.
The review found that both parties had made good progress in implementing the agreement. This resulted in increased:
- awareness of obligations under the EPBC Act
- consistency and coordination of issuing environmental assessment requirements.
It also identified some areas for improvement, such as:
- early engagement
- reviewing administrative arrangements.
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Transitional review of the New South Wales Bilateral Agreement (PDF 464KB)
Transitional review of the New South Wales Bilateral Agreement (DOCX 76KB)
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Endorsement of the NSW Biodiversity Offsets Scheme
The Australian Government has endorsed the NSW Biodiversity Offsets Scheme (BOS). This includes the:
- Biodiversity Assessment Method (BAM)
- biodiversity credit system
- offset rules set out in the Biodiversity Conservation Regulation 2017 (BC Regulation).
Both governments agree this will help outcomes be robust, transparent and streamlined.
NSW has also amended the BC Regulation to align with Australian Government requirements. This will mean like-for-like offsets for listed threatened species and communities under the EPBC Act.
The endorsement applies to all NSW projects that need EPBC Act approval, not just those assessed under the bilateral agreement.
See a list of endorsed policies in Appendix A of the EPBC Act Condition-setting Policy.
Using the BOS under the EPBC Act
If you hold an approval under the EPBC Act, you can meet your offset obligations in line with the BOS. This means you may be able to generate and retire like-for-like credits through Biodiversity Stewardship Agreements.
You can also buy and retire credits directly from the market.
You may also be able to pay into the NSW Biodiversity Conservation Fund to meet your approval conditions. To do this, you must have both:
- a legal obligation to retire biodiversity credits under NSW law (generally via development consent conditions issued under the EP&A Act)
- an EPBC Act approval dated 24 March 2020 or after.
If you received your approval before 24 March 2020, check if your approval conditions allow you to pay into a Commonwealth-endorsed fund.
If you don't meet the criteria and want to pay into the Biodiversity Conservation Fund instead of existing offset obligations, email postapproval@nationalepa.gov.au.
Biodiversity Assessment Method
The BAM establishes a single consistent approach to assessing biodiversity values and impacts from development. It builds on previous NSW statutory assessment and offsetting mechanisms such as BioBanking and the Framework for Biodiversity Assessment.
The BAM uses a framework to avoid, minimise, mitigate and offset proposed impacts to biodiversity.
Despite technical changes, the BAM’s coverage and approach are similar to earlier systems.
Applying the offset rules under the NSW Biodiversity Conservation Regulation
The offset rules in the BC Regulation require either:
- like-for-like biodiversity credits
- funding conservation actions that directly benefit the protected matter that an action impacts.
They allow for variations if there's no like-for-like offset. However, NSW has amended the BC Regulation to stop variation rules applying to projects that:
- need EPBC Act approval
- have an offset obligation for an EPBC Act protected matter.
This amendment ensures offsets under the BOS for EPBC Act purposes achieve like-for-like outcomes.
The NSW Government will also disburse payments into the Biodiversity Conservation Fund for EPBC Act projects in a like-for-like manner.
Mine rehabilitation
The Australian Government sees mine rehabilitation as an important component of landscape-scale biodiversity conservation. Rehabilitation activities can help to restore habitat. They can do this while also contributing to offsets that directly benefit protected matters.
We determine how much of a mine’s offset obligation you can meet through rehabilitation on a case-by-case basis.
Get in touch
If you have any questions about bilateral agreements with NSW:
- Email: NSWbilateralteam@nationalepa.gov.au
- Phone: 1800 423 135 between 9am and 5pm Canberra time.