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15 Oct 2020

Clutching for life – new State Environmental Planning Policy to improve protections for koala habitat

By Claire Smith, Emma Whitney and Cloe Jolly

The new Koala Habitat Protection SEPP commenced on 1 March 2020 with the final SEPP to be released on 16 October 2020; here is what we know about the changes so far.

Widespread drought and bushfires have significantly impacted the koala population in NSW. On 1 March 2020, the State Environmental Planning Policy (Koala Habitat Protection) 2019 (Koala SEPP) commenced, repealing and replacing the State Environmental Planning Policy No 44 – Koala Habitat Protection (SEPP 44), which came into effect in 1995. On 7 October 2020, the NSW Government agreed on amendments to be made to the Koala SEPP and the Local Land Services Act 2013 which "strikes a balance between safeguarding the future of our national icon while ensuring certainty for farmers". Changes to the Koala SEPP will be published on 16 October 2020 alongside a new Koala Habitat Protection Guideline and will include:

  • retention of the 123 tree species proven to be critical to koala survival;
  • redefining the definition of 'core koala habitat';
  • decoupling the land management codes under the Local Land Services Act 2013;
  • strengthening landholders rights when council creates a Koala Plan of Management;
  • return to on-the ground surveys to remove the need to rely on the Development Application Map; and
  • redefining the blue Site Investigation Map.

So how does the Koala SEPP currently operate?

SEPP 44 was a policy that applied to Local Government Areas (LGAs) classified as containing koala habitat or potential koala habitat. SEPP 44 provided that affected Councils, before determining development applications, had to determine whether the development site contained "potential koala habitat" or "core koala habitat". Before a Council could grant consent to a development within an area of "core koala habitat", a plan of management had to be prepared and any development needed to be consistent with that plan. SEPP 44 also provided for affected Councils' to survey land within their LGA for "potential koala habitat" and "core koala habitat" and include core koala habitat within an environmental protection zone.

The Koala SEPP retains the policy intent of SEPP 44 however the key differences with the Koala SEPP include:

  • introduction of the Koala Habitat Protection Guideline;
  • a change in the definition of "core koala habitat";
  • introduction of a "Koala Habitat Map" which identifies areas where landowners need to consider the Koala SEPP as part of their development application. It also provides guidance to Councils on where to concentrate survey efforts for preparing Koala Plans of Management.
  • significant expansion in koala feed trees from 10 to 123 species, which includes a range of non-eucalyptus species;
  • provision for clearing and development within an Asset Protection Zone; and
  • streamlining of development assessment processes where the proposed development impacts on "core koala habitat".

Koala Habitat Protection Guideline

A new Guideline replaces Circular B35 which supported SEPP 44. The draft Guideline was on exhibition from 2 March 2020 until 6 April 2020 and the final Guideline is to be released on 16 October 2020. The Guideline will provide more detailed information regarding Koala Plans of Management, the assessment criteria for development applications where no Koala Plan of Management has been approved, and an updated surveying methodology.


Updates to the definition of "core koala habitat"

The definition of "core koala habitat" under SEPP 44 was criticised for being impractical and difficult to demonstrate as it required evidence of a resident population of koalas, including evidence of attributes such as breeding females and a historical record of the population. The definition of "core koala habitat" in the new Koala SEPP makes it easier for areas with demonstrated koala presence to be recognised and protected.

The Koala SEPP states that "core koala habitat" will include:

  • an area of land where koalas are present, or
  • an area of land where koalas have been recorded as present in the previous 18 years and which has been assessed as being highly suitable koala habitat by a "suitably qualified and experienced person".

A "suitably qualified and experienced person" means a person who has:

  • a tertiary qualification in ecology, environmental management, forestry or other equivalent qualifications, and
  • experience in flora and fauna identification, survey and management, including experience in conducting koala surveys in accordance with the techniques specified in the Guideline.

The new definition will be relevant to:

  • those lodging development applications for land which has been identified on the Koala Development Application Map but are seeking to show that their land is not "core koala habitat"; and
  • to Councils seeking to identify "core koala habitat" in a Koala Plan of Management.

Koala Habitat Map

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 – which identifies areas that have highly suitable koala habitat and are likely to be occupied by koalas.

This is relevant to whether landowners need to consider the Koala SEPP's development application criteria as part of their development application. It is important to note that the map only applies if the type of development proposed requires development consent. In such circumstances, a council must consider the proposed development having regard to the Guideline and the supporting documentation prepared addressing whether the land is core koala habitat or contains any feed tree species.

  • The Site Investigation Area for Koala Plans of Management Map – which identifies land which should be surveyed by a council in order to identify whether it contains core koala habitat.

This is relevant to the preparation of Koala Plans of Management as these plans can only identify land that is mapped on the Site Investigation Area Map and land that is "core koala habitat".


Changes to tree species data

The Koala SEPP expands the list of feed tree species protected under Schedule 2 following extensive scientific research over recent years that shows there are far more tree species used by koalas than the 10 feed tree species afforded protection under SEPP 44. The Koala SEPP now recognises 123 species of feed tree for protection and categorises them into nine Koala Management Areas.


Impacts on clearing

A new provision has been included in the Koala SEPP to facilitate the safe and speedy rebuilding and repair of homes impacted by bushfires by enabling an Asset Protection Zone to be created around the damaged or destroyed home. Any clearing and development within this zone will not need to consider the Koala SEPP, saving applicants time and money in the development application process.

This change is supported by several checks and balances to ensure development does not impact koalas (despite not having to consider to Koala SEPP). This includes requiring any clearing to be consistent with the Rural Fire Service's Planning for Bushfire Protection. Further, protections/plans for koalas and other native animals provided for by other legislation (or otherwise) will continue to apply.


Changes to the preparation of plans of management and the development application process

The Koala SEPP only applies to 'development' under Part 4 of the Environmental Planning and Assessment Act 1979, specifically excluding Part 5 'activities' (which are primarily carried out by or on behalf of public authorities). It also only applies to sites within the 83 Local Government Areas (LGAs) listed in Schedule 1 (hese are the same as those included under the former SEPP 44).

The Koala SEPP provides for more 'streamlined' assessment of development applications where land is identified on the Koala Development Application Map, has an area of at least 1 hectare and does not have an approved Koala Plan of Management in place. Under the SEPP 44, a development site was required to be individually surveyed to identify if it was a potential koala habitat and any impacts to koala habitat on a development site needed to be managed through an individual Plan of Management, which required approval from the relevant council and the Director-General of National Parks and Wildlife. Instead, the Koala SEPP requires decision-makers to assess a proponent's development application in accordance with new standard assessment criteria which is to be set out in the new Guideline. If a Koala Plan of Management is in place for the area where the relevant development site is located, then the requirements of the Koala Plan of Management need to be followed in considering the impact of a proposed development on koala habitat.

As per SEPP 44, councils can prepare Koala Plans of Management for part or all of their LGAs. However, Koala Plans of Management can only apply to areas identified in the Site Investigation Area Map.

A Koala Plan of Management must be prepared:

  • by a "suitably qualified and experienced person", and
  • in accordance with the Guideline, and
  • having regard to a survey of the land for core koala habitat.

The Koala SEPP introduces consultation requirements for the preparation of Koala Plans of Management, including the exhibition of draft plans for at least 28 days and a requirement to notify effected landholders. This has been introduced in an effort to strengthen landholder rights in balance with the protection of koala habitats.

Takeaways

The Koala SEPP offers greater protection than its predecessor SEPP 44 particularly in increasing the scope of what constitutes core koala habitat and expanding the list of protected fee tree species. Development proponents need to be aware of these changes and check whether the Koala SEPP and a Koala Plan of Management applies to their development site. We will be providing a further update once the final SEPP and corresponding Guidelines are released.

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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.