29 January 2020
A new State Environmental Planning Policy (SEPP) seeking to protect koala habitat will take effect from 1 March 2020. The new State Environmental Planning Policy (Koala Habitat Protection) 2019 (Koala Habitat Protection SEPP) will repeal and replace the existing SEPP 44 – Koala Habitat Protection (SEPP 44).
The protection of koala habitat under the planning system has a fairly long history. SEPP 44 was first introduced in February 1995 with the aim of protecting koala habitat to ensure that there continues to be a permanent free-living population, and to reverse the trend of population decline.
Sadly that has not occurred. Recent studies estimate a 26 per cent decline in koala numbers over the last 15 to 21 years. Koalas are also listed as vulnerable to extinction under the Biodiversity Conservation Act 2016 (NSW). Critically, the loss, modification and fragmentation of habitat has been identified as the key threat to koalas. Habitat destruction has been further put under the spotlight recently, with the damage caused by bushfires wiping out an estimated 30 per cent of koala habitat in the NSW mid-north coast.
Arguably SEPP 44 did very little to arrest the degradation of koala habitat partially because of concerns that the scope of what constituted core koala habitat for the purposes of the policy was too narrow and that only five comprehensive plans of management for areas containing koala habitat (also referred to as koala plans of management) had been prepared.
So for many, the introduction of the new Koala Habitat Protection SEPP has been heralded as a much needed reform which will hopefully increase the protections afforded to koala habitat.
What the SEPP does
The SEPP applies to each of the 83 Local Government Areas listed in Schedule 1 to the policy and identifies the relevant koala management area for each of those areas.
Where a development application applies to land to which the policy applies, and that there is an approved koala plan of management, the council’s determination must be consistent with the approved koala plan of management that applies to the land.
Where there is no approved koala plan of management applying to the land and the development application is for land that is identified on the koala development application map and has an area of at least one hectare, the council must, before granting consent to the application on the land, take into account the requirements of the Koala Habitat Protection Guideline (Guideline), or information prepared by a suitably qualified and experience person in accordance with the Guideline stating that:
Requirements for the preparation of a koala plan of management – core koala habitat
The Koala Habitat Protection SEPP provides that a council may prepare a koala plan of management in respect of whole or part of its local government area. This koala plan of management must be prepared:
Land may only be identified in a Koala Plan of Management if it is identified on the Site Investigation Area for Koala Plans of Management Map, and is core koala habitat.
Key changes from SEPP 44
1. Updates to the definition of ‘core koala habitat’
The definition of core koala habitat under SEPP 44 was criticised for being difficult to narrow as it required evidence of resident populations, including evidence of breeding females. The new SEPP simplifies this by stating that core koala habitat will include land where koalas are present, land where koalas have been recorded as being historically present, and will also extend to land which has been assessed as highly suitable koala habitat.
This definition will be relevant to people lodging development applications whose land has been identified on the Koala Development Application Map but are seeking to show that their land is not core koala habitat via carrying out ecological surveys.
It will also be relevant to local councils seeking to identify core koala habitat in a Koala Plan of Management.
Also of note, the new Koala Habitat Protection SEPP expands the list of feed tree species protected under Schedule 2 of the SEPP. New scientific research, combined with consultation with koala experts, has identified that there are 123 tree species used by koalas. This is far in excess of the 10 feed tree species afforded protection under SEPP 44. The Koala Habitat Protection SEPP recognises these species and categorises them into nine Koala Management Areas, which vary from region to region.
2. Introduces two new SEPP maps
The Koala Habitat Protection SEPP introduces two new maps which are publicly accessible on the NSW Planning Portal, as well as on the NSW legislation website. The two maps are:
3. Introduces the Koala Habitat Protection Guideline to be published by the Department of Planning, Industry and Environment
The new Guideline replaces Circular B35 which supported SEPP 44. The Guideline will provide more detailed information regarding Koala Plans of Management, the assessment criteria for development applications were no Koala Plan of Management has been approved, and an updated surveying methodology. The release date for the Guideline is not currently known, however it is due for publication sometime prior to the commencement of the SEPP on 1 March 2020.
4. Streamlines development assessment processes
SEPP 44 incorporated lengthy and costly development assessment processes where land was required to be surveyed to identify if it was a potential koala habitat. This involved the preparation of Individual Plans of Management which required approval from the Secretary of the Department.
However, under the new regime, there is no longer a need to conduct a preliminary koala survey because land is mapped under the Koala Development Application Map. Further, instead of preparing Individual Plans of Management, proponents will simply need to frame their development applications in accordance with the assessment criteria published in the new Guideline.
5. Introduces new consultation and referral requires for Koala Plans of Management
The Koala Habitat Protection 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 landholders in proposed core koala habitat ahead of exhibition.
6. Plan-making provisions are transferred to a Ministerial Direction
SEPP 44 contained planning principles to be considered in the preparation of draft LEPs. These no longer apply and instead a new Ministerial Direction requires councils who are preparing planning proposals to identify areas of core koala habitat and zone those areas Environmental Protection.
7. Savings and transitional arrangements
The Koala Habitat Protection SEPP will not apply to development applications that have been made but not finally determined before the commencement of the policy.
Further, plans of management prepared and approved under SEPP 44 will continue to apply in accordance with the former SEPP.
While the introduction of the Koala Habitat Protection SEPP is undoubtedly a step in the right direction and contains some usual initiatives to address habitat degradation, it remains unclear whether it will be enough to stop the continued fragmentation of habitat and stem the rapid population decline.
This is because to some extent, the Koala Habitat Protection SEPP is not that different from its predecessor, SEPP 44. It is also hamstrung by certain limitations, including that it only applies to local councils and will not apply where the Minister or the Court is the consent authority. The SEPP also excludes sites smaller than one hectare.
A further limitation which is yet to be addressed is the severe lack of funding for councils to produce comprehensive plans and undertake detailed surveys to investigate the existence of core koala habitat in their local government areas. Without this, it is difficult to see how the policy can achieve its lofty aims.
Finally, the question of rezoning needs to be address. Land which is currently koala habitat is being rezoned to enable development which results in the removal of trees, thereby directly contributing to habitat loss and fragmentation.
Authors: Peter Holt & Georgia Appleby
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.