The Commonwealth Government recently released the final EPBC Act referral guidelines for the vulnerable koala to assist proponents such as property developers in determining whether their project will trigger a controlled action.
A loss of two hectares of critical habitat may be considered significant enough to trigger a controlled action requiring approval. Care needs to be taken when planning a project to ensure that the new guidelines are used to assess the impact of projects on the koala population.
The guidelines provide much needed guidance to proponents and will be relevant to projects and development sites across Queensland.
On 2 May 2012, the combined koala populations of Queensland, New South Wales and ACT were listed as a vulnerable threatened species under the Environment Protection and Biodiversity Conservation Act 1999. This listing meant that any proposed action that will have (or is likely to have) a significant impact on the koala must be referred to the Commonwealth Environment Minister for approval before the action commences.
Under the Act, a person must not take an action that has, will have, or is likely to have, a significant impact on any of the matters of national environmental significance without approval from the Commonwealth Environment Minister.
Since the listing, three referral guidelines have been released, being the Interim koala referral advice (June 2012), the Draft EPBC Act referral guidelines (December 2013), and the final guidelines (December 2014).
Key changes between the draft guidelines and the final guidelines
The final guidelines generally follow the same approach as the draft guidelines, but provide clarity on some of the more specific matters of detail. Some of the major changes include:
- alignment with state and local government definitions, standards and resources;
- details as to the level of habitat clearing that may be deemed significant;
- details surrounding the survey guidance, which now identifies key survey methodologies outlining benefits and limitations;
- revisions to the habitat assessment tool and mitigation tables; and
- clarity that offsets will not be considered at referral stage.
How to use the guidelines
The purpose of the guidelines is to:
- assist proponents in deciding whether their projects should be referred for consideration;
- guide proponents on the information that will be expected to support a referral, survey planning and standards for mitigation impacts; and
- provide an aid for determining impacts and offsets for significant residual impacts on the koala in approval decisions (not for referral decisions).
One of the key tools provided by the guidelines is the koala habitat assessment tool, which will be important in assisting proponents to assess the likely impact of the project. An impact area that scores five or more using the koala habitat assessment tool is considered highly likely to contain habitat critical to the survival of the koala and may require referral.
Another key tool provided by the guidelines is the impact mitigation tables, which assist in evaluating any impacts likely to substantially interfere with the recovery of the koala (such as dog attacks, vehicle strikes, spread of disease, barriers to movements or changing hydrology). The impact mitigation tables set out avoidance and mitigation measures considered desirable for mitigating potential impacts.
Some of the key points that can be taken from the guidelines:
- The focus of assessing whether your project will have a significant impact on the koala is determined by the impacts on 'habitat critical to the survival of the species' and impacts that 'substantially interfere with the recovery of the species'.
- The loss of 20 hectares or more of high quality habitat critical to the survival (having a habitat score of more than 8) is highly likely to have a significant impact for the purposes of the Act and trigger referral.
- The loss of habitat that is not considered habitat critical to the survival of the koala is highly unlikely to have a significant impact and require referral for the purposes of the Act.
- The loss of 2 hectares or less of marginal quality habitat critical to the survival (having a habitat score of 5 or less) is considered highly unlikely to have a significant impact, however, the loss of between 2 and 20 hectares of habitat critical to the survival may have a significant impact and require referral for the purposes of the Act.
- In the majority of cases, a proposed action is unlikely to trigger referral in existing urban areas.
What this means for you
You must carefully consider whether your current projects and proposed future projects have, will have, or are likely to have, a significant impact on koala populations as part of the approval process. There are substantial penalties involved if your action has not been referred and has a significant impact on habitat critical to the survival of the koala.
Winner – EOWA Employer of Choice for Women Citation 2009,
2010, 2011 and 2012
Winner – ALB Gold Employer of Choice 2011 and 2012
Finalist – ALB Australasian Law Awards 2008, 2010, 2011 and 2012 (Best Brisbane Firm)
Winner – BRW Client Choice Awards 2009 and 2010 - Best Australian Law Firm (revenue less than $50m)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.