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A proposed action likely to have a significant impact on
certain koala populations must now be referred under the EPBC
Act.
On 30 April 2012 Environment Minister Tony Burke listed the
combined Queensland, NSW and ACT koala populations as
"vulnerable" on the national list of threatened species
after a Senate Inquiry last year found that numbers were declining
in Queensland and NSW.
Listed threatened species are recognised as a matter of national
environmental significance. Any action that is likely to have a
significant impact on this threatened species must be referred to
the Federal Minister administering the Environment Protection and
Biodiversity Conservation Act 1999 (EPBC Act) and,
where determined as a "controlled action", undergo an
environmental assessment and approval process under the EPBC
Act.
If a person proposing to take an action believes that the action
may be, or is a controlled action, they must refer the proposal to
the Minister for a decision as to whether or not the action is a
"controlled action". In relation to threatened species, a
controlled action is an action that:
has or will have a significant impact on a listed threatened
species included in the vulnerable category; or
is likely to have a significant impact on a listed threatened
species included in the vulnerable category.
The Department of Sustainability, Environment, Water, Population
and Communities (DSEWPaC) is in the process of
preparing referral guidelines to assist in determining whether a
proposed action is likely to have a significant impact on these
koala populations.
In the interim, DSEWPaC has published an
Interim koala referral advice for proponents, which complements
the Koala Species Listing Factsheet and should be read in
conjunction with "Significant impact guidelines 1.1 - Matters
of Environmental Significance" to assess whether a proposed
action will have a significant impact on koalas.
If your proposed development action has already been referred
under the EPBC Act and the Minister has already decided whether
that
action is a
controlled action (ie. either it is a controlled action or it
is not a controlled action if undertaken in a manner specified)
your proposal will not be affected by the new koala listing as the
Minister's decision in the first instance cannot be revoked,
varied, suspended, challenged, reviewed, set aside or called in
question because of, or for reasons relating to, the new koala
listing.
If you have not referred an action, but the land the subject of
the proposed action may contain koala habitat, it is recommended
that you seek technical advice as to whether a referral is
required.
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 bulletin.
Persons listed may not be admitted in all states and
territories.
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