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12 Nov 2020

Has a balance been struck? The final piece in the NSW Government's policy to protect koala habitat has been released

By Claire Smith, Emma Whitney and Cloe Jolly

The Koala Habitat Protection Guideline, which supports the Koala SEPP 2019, has been released. We provide an overview of the Guideline and provide an assessment of whether a balance has been struck.

On 16 October 2020, the revised and finalised Koala Habitat Protection Guideline (Guideline), which accompanies the recently commenced State Environmental Planning Policy (Koala Habitat Protection) 2019 (Koala SEPP), was published. The Guideline provides guidance to consent authorities, professionals and the community to understand and implement the requirements of the Koala SEPP. We recently published an Insights Articlethat sets out the key changes brought about by the introduction of the Koala SEPP.

The overarching aim of the Koala SEPP is to:

"…encourage the conservation and management of areas of natural vegetation that provide habitat for koalas to support a permanent free-living population over their present range and reverse the current trend of koala population decline."

The Guideline supports this aim by:

  • guiding councils on how to prepare and what to include in their Koala Plans of Management (KPoM) (Appendix B of the Guideline sets out the detailed criteria);
  • defining standard criteria and requirements for applicants and consent authorities when preparing and assessing development applications applicable to the Koala SEPP (if a council does not have a KPoM in place for that land);
  • setting out the process for identifying core koala habitat; and
  • informing the wider community about the Koala SEPP's role in protecting koalas and their habitat.

The Guideline applies to the same local government areas (LGAs) to which the Koala SEPP applies, as listed in Schedule 1 of the Koala SEPP. These are the same LGAs as the repealed State Environmental Planning Policy No 44 – Koala Habitat Protection (SEPP 44) applied to.

Mapping & Koala Plans of Management

The Koala SEPP introduces two new maps which are publicly accessible on the NSW Planning Portal and NSW legislation website: the Koala Development Application Map and the Site Investigation Area for KPoM Map. An overview of each was provided in our previous Insights Article.

The Guideline provides additional information on the Site Investigation Area for KPoM Map. This Map identifies areas that are likely to contain koala feed tree species listed under Schedule 2 of the Koala SEPP and excludes areas that have a low probability of containing habitat that may be suitable for koalas. The Map is restricted by the application of the Koala SEPP. That is, it does not capture:

  • land in the LGAs where the Koala SEPP does not apply (consistent with Schedule 1 of the Koala SEPP);
  • land dedicated or reserved under the National Parks and Wildlife Act 1974, or acquired under Part 11 of that Act (as set out in clause 5 of the Koala SEPP);
  • land dedicated under the Forestry Act 2012 as a State forest or flora reserve (as set out in clause 5 of the Koala SEPP); and
  • cleared areas pursuant to the NSW Native Vegetation Map, which differentiates native tree cover from native grasslands, non-native areas, forestry plantation and water bodies areas that the Koala Habitat Information Base has identified as having a low probability of koala use trees.

The purpose of the Map is to direct councils to certain areas that they must focus their surveying efforts to identify "core koala habitat" for the purpose of including in a KPoM. Land identified as "core koala habitat" in a KPoM (as consistent with the definition of "core koala management" in the Koala SEPP) will also be included on the Biodiversity Values Map under the Biodiversity Conservation Regulation 2017. This means that a development proposal on land containing core koala habitat, or the clearing of native vegetation in areas where State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 applies, will trigger the Biodiversity Offset Scheme Threshold and will require Native Vegetation Panel approval.

Areas outside of the Map cannot be identified as core koala habitat (but the Map will be updated regularly). Councils may, however, identify other types of koala habitat beyond what is considered "core koala habitat", even where situated outside the bounds of the Map. However, these types of koala habitat will be recognised under other legislation as "core koala habitat" is.

Landholder participation

There is now a process allowing landholders to contest the proposed designation of core koala habitat on their land that was not previously available under SEPP 44.

Councils must publicly exhibit proposed KPoMs, and in some instances re-exhibit amendments, for a minimum of 90 days. Councils must also notify, by post or email, all landholders within proposed core koala habitat areas and clearly identify the implications for land identified as core koala habitat if the KPoM is approved. This correspondence must clearly state the procedure that landholders need to follow to contest the proposed core koala habitat designation.

Landholders who wish to contest proposed core koala habitat on their land must provide evidence that the land does not contain core koala habitat using the survey method set out in Appendix C of the Guideline. There is also an opportunity for landholders to request an extension of up to 60 days where they require more time to gather and present evidence to assist their objection.

Where it is appropriate for a council to make changes to a KPoM in response to feedback, these changes are required to be detailed and justified in a submission report. Further, the submission report must detail any objections and evidence submitted by landholders, along with the council's response to such objections and a clear justification of the action taken. The submissions report must be provided with the associated draft KPoM when submitted to the Secretary for approval.

Assessment of Development Applications

Where land is covered by a KPoM, a development application (on that land) is to be determined by considering whether the development application is consistent with the requirements outlined in that KPoM, instead of the Guideline.

Alternatively, development applications must consider the Guideline if they are:

  • in a LGA covered by the SEPP; and
  • the landholding is more than 1 hectare; and
  • on land without an approved KPoM.

If all three of these criteria are met, the development proponent must consider the development assessment requirements set out in Part 3 of the Guideline.

A risk-based approach is taken to development applications that need to be assessed against the Guideline. The Guideline identifies two tiers of development:

  • Tier 1 – development applications which can be demonstrated to have low or no direct impact on koalas or koala habitat; and
  • Tier 2 – development applications which are likely to impact koalas and/or koala habitat.

Proponents of Tier 2 development applications must engage a "suitably qualified and experienced person" to survey the land affected by the development proposal for core koala habitat in accordance with Appendix C of the Guideline.  Core koala habitat that is identified through this process has no effect on other legislation or mapping, unlike core koala habitat identified in an approved KPoM.

A Koala Assessment Report must also accompany a Tier 2 development application.  The Guideline provides a number of principles and criteria that need to be addressed in the report (as well as a template for such a report), with a focus on identifying options to avoid, minimise and manage impacts to koalas and koala habitat.

Has a balance been struck?

The NSW Government intended for the Koala SEPP and the Guideline to strike an appropriate "balance between safeguarding the future of our national icon while ensuring certainty for farmers".  The new Koala SEPP is a strengthening of protection for koalas and koala habitat.   As mentioned in our last Insights Article, the threshold of what constitutes "core koala habitat" has been lowered in the Koala SEPP as compared with SEPP 44 and the list of feed tree species has been expanded from 10 species under SEPP 44 to 123 under the new Koala SEPP. 

However, the Koala SEPP and Guideline also supports landowners/farmers by permitting vegetation management and bushfire protection measures as well as facilitating the rebuilding and repair of homes impacted by bushfires by enabling the establishment of "Asset Protection Zones". Assessment of development applications on land impacted by the Koala SEPP has been streamlined and landholders will now be directly consulted and provided the opportunity to dispute, with evidence, the designation of core koala habitat on their land.

Ultimately, the strength (or weaknesses) of the new changes in performing the important job of protecting koalas and koala habitat will be dependent on Councils preparing robust Koala Plans of Management where core koala habitat is identified as these are what will be taken into consideration when determining a large proportion of development applications that have the potential to impact koalas and their habitat.

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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.