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21 Feb 2020

New koala regulations for South East Queensland

By Patrick Byrne, Ian Motti and Kathryn Pacey

The amendments have the potential to significantly impact clearing activities on land, and requirements for development to improve protection of and connectivity for koalas.

On 7 February 2020 the Queensland Government announced legislative changes to implement the Draft South East Queensland Koala Conservation Strategy and associated mapping that were released for consultation at the end of 2019.

Under the changes, more than 690,000 hectares in South East Queensland are now mapped as koala habitat areas, and 577,000 hectares are within a Koala Priority Area (KPA). The mapping has been slightly amended compared to the draft mapping following submissions.

The amendments, which take effect from 7 February 2020, have the potential to significantly impact clearing activities on land, and requirements for development to improve protection of and connectivity for koalas.

Landowners, vendors, purchasers and infrastructure providers should all be checking mapping to confirm whether land is within a koala habitat area or a KPA, and consider the implications for future development potential including offsets requirements.

Impact on Planning Framework

Impact on development

Generally, the Nature Conservation and Other Legislation (Koala Protection) Amendment Regulation 2020 provides the following controls:

  • interfering with koala habitat in an area that is both a koala habitat area and a KPA is prohibited, which means a development application cannot be made, unless the interference falls within an exemption, or is otherwise permitted (set out below);
  • interfering with koala habitat in an area that is a koala habitat area but outside of a KPA is assessable development, and is assessed by the Chief Executive, Department of State Development, Manufacturing, Infrastructure and Planning (either as the assessment manager or as a referral agency) against a new code in the State Development Assessment Provisions (SDAP). Development that falls within the exemptions, or is otherwise permitted (below), can proceed without a development approval;
  • development within a KPA that does not interfere with koala habitat in a koala habitat area is assessed by the local government against new assessment benchmarks to be contained in the Planning Regulation 2017.

The exemptions for interfering with koala habitat in an area that is both a koala habitat area and a KPA include, amongst others:

  • development in a State development area;
  • development for a coordinated project;
  • development for particular infrastructure, if the development is carried out by the or for the State or a public sector entity;
  • PDA-related development;
  • development for public housing;
  • a once-off 500m2 of clearing per premises;
  • clearing in accordance with relevant assessable development vegetation clearing codes under the Vegetation Management Act 1999, some of which were updated and are effective from the same date that the Regulation takes effect;
  • the clearing of vegetation for essential management (eg. clearing for firebreaks) or particular types of routine management; and
  • development that is operational work for the clearing of native vegetation under a PMAV for Category X vegetation that was made on or before 7 February 2020.

The Regulation also clarifies that some development is permitted if it involves clearing of koala habitat areas, either in a KPA or outside of a KPA, including development that is:

  • in an identified koala broad-hectare area that is accepted or assessable development under a local government's planning scheme, or is reconfiguring of a lot;
  • carried out under a development permit given for an application that was properly made before 7 February 2020; or
  • consistent with a development approval, which includes a preliminary approval, that is in effect for the premises on which the development is carried out, and is given for an application that was properly made before 7 February 2020.

Development for an extractive industry in a key resource area that interferes with a koala habitat area, including with a KPA, is assessable development and requires a development approval.

Assessment benchmarks

New assessment benchmarks have been introduced for development that might involve interfering with koala habitat areas, or is within a KPA (and that is not exempt or otherwise permitted).

The new code in the SDAP, State Code 25: Development in South East Queensland koala habitat areas, applies to development:

  • that interferes with koala habitat areas, but is outside of a KPA; and
  • for an extractive industry in a key resource area that interferes with a koala habitat area.

Schedule 11 of the Planning Regulation 2017 has been replaced with revised assessment benchmarks that apply to development:

  • on premises that are located within a KPA, that does not involve interfering with koala habitat areas; and
  • in identified koala broad-hectare areas.

Both sets of assessment benchmarks are directed at minimising damage to koala habitat areas, ensuring safe movement of koalas and implementing measures so as to not increase the risk of injury or death to koalas.

The Queensland Government has published the following guidelines to assist in meeting the new assessment benchmarks:

  • Guideline: Assessment Benchmarks in relation to Koala Habitat in South East Queensland;
  • Guideline: State Development Assessment Provisions – State Code 25: Development in South East Queensland koala habitat areas;
  • Koala-sensitive Design Guideline: A guide to koala-sensitive design measures for planning and development activities.

Impact on Environmental Offsets

The Queensland Environmental Offsets Policy has also been updated in relation to offsets for development in koala habitat areas.

It now includes specific criteria for the location of land-based, proponent driven offsets to be delivered in a restoration area identified in Koala Habitat Restoration Areas Map, in the KPA closest to the relevant site. The Queensland Government has stated that Koala Habitat Restoration Areas have been identified as land that could be restored and established as koala habitat, as they feature low threats or constraints, and high conservation opportunities.

Mapping

Although the mapping has now been finalised, landowners (or someone on behalf of a landowner) may make a request to make, amend or revoke mapping identifying koala habitat areas. There is no ability to make a request to amend KPAs.

Any request is to be made to the Queensland Government and must state the grounds on which the determination, amendment or revocation is sought.

Maps will be updated annually, however the explanatory notes for the Regulation identifies that there may be an issue in that determinations of mapping changes by the Chief Executive may not be publicly available. To overcome this concern, approved amendments to the mapping will be maintained by the Department of Environment and Science so that the most up to date mapping is available for viewing in between updates.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.