In a recent decision delivered on 13 April 2023, the Queensland Civil and Administrative Tribunal (QCAT) set aside the Department of Environment and Science's decision regarding a koala habitat determination (the decision on review) and substituted this with a decision that the determination of the area the subject of the proceeding as a koala habitat area is revoked.
The koala habitat and the decision on review
Under the Nature Conservation (Koala) Conservation Plan 2017 the Department may determine an area in a koala district to be a koala habitat area if:
- the area contains koala habitat; and
- the koala habitat is essential for the conservation of a viable koala population in the wild.
The Coolum Beach Christian College obtained a development approval for development of part of its campus which approval was subject to conditions because the land was determined to be a koala habitat area under the Koala Conservation Plan.
The College requested that the Department amend or revoke its designation of the College land as koala habitat area. The Department excluded part of the area, but did not completely revoke the determination. Approximately 1.1 hectares of land that the College proposed to develop remained as a koala habit area.
Key arguments as to what is "essential" koala habitat
The College contended the area could not be regarded as "essential" for conservation of a viable population in the wild because:
- there had not been a koala sighting on the land in the last 18 years;
- a site inspection found no evidence of koalas; and
- the nearest koala sighting was some 2.3 kilometres to the north west.
Statutory test of "essential" koala habitat
In his decision, Member Olding considered the terms in section 7B of the Koala Conservation Plan which empowered the Department to determine whether an area is a koala habitat area and found that they are "specific and absolute" and that the Department must be satisfied that a particular koala habitat is essential for the conservation of koalas to enliven the power to make the determination. In that regard, Member Olding concluded that:
"It is not sufficient for the Department to consider the koala habitat to be desirable for conservation of a viable koala population in the wild, nor that a determination would contribute to best practice objectives for maintaining koala habitat. Nor does the governing legislation authorise treating all land in a district containing koala habitat as a koala habitat area."
Having regard to the size of the area in question, which was relatively small, and the absence of any evidence of that area being used by koalas on this land or in the vicinity, Member Olding ultimately held that the habitat on the College land was not essential for the conservation of a viable koala population in the wild. In a footnote in the decision, Member Olding clarifies that this finding is "not to be taken to suggest that a determination could only ever be made if land is actually used by koalas. Each case must be decided on its own facts."
What does this mean for koala habitat area designations?
Consistency with a stated statutory objective is not the same as, and cannot be substituted for, satisfaction of an explicit statutory test. The statutory test as described above must be strictly applied when making a koala habitat area determination.
Land can still be "essential" to sustain a viable koala population in the wild, even if there is no evidence of use by koalas. However, although land in a Koala District may be perceived as "desirable" or "necessary" to sustain a viable koala population in the wild, that does not mean the land is essential for the purposes of a koala habitat area declaration. The "essential" character of a koala habitat area will be determined on a case-by-case basis.
Want to understand more?
If you would like to understand more about koala habitat area determinations or the koala habitat protection framework more broadly, please contact us.