State Environmental Planning Policy No 44—Koala Habitat Protection (SEPP 44) has been in force since 13 February 1995. The aim SEPP 44 is to encourage the proper conservation and management of natural vegetation that provide habitat for koalas, to ensure a permanent, free-living population over their present range and reverse the current trend of koala population decline.1
SEPP 44 seeks to achieve this by establishing a process for identifying core koala habitat and also requiring the preparation of plans of management to minimise the impact of development before consent is granted.
SEPP 44 currently applies to 107 local government areas across New South Wales.2
SEPP 44 applies to development applications within those local government areas that have an area of more than one hectare, or, has, together with adjoining land in the same ownership, an area of one hectare.3
For the development control provisions of the SEPP to apply, there are three steps that must be made out:
- whether the land is potential koala habitat;
- if it is potential koala habitat, whether the land is a core koala habitat; and
- if it is a core koala habitat, development consent must not be granted until a plan of management has been prepared in accordance with the Policy.
The term 'potential koala habitat' is currently defined to mean areas of native vegetation, where the type of trees listed in Schedule 2 of the Policy constitute at least 15% of the total number of trees in the upper or lower strata of the tree component. There are currently ten eucalypt species listed.
The term 'core koala habitat' is defined to mean, "an area of land with a resident population of koalas, evidenced by attributes such as breeding females (that is, females with young) and recent sightings of and historical records of a population."4
Under the Policy there are two types of plans of management. There are comprehensive plans of management which cover an entire local government area and individual plans of management which apply to part of a local government area, but which typically apply to the land that is the subject of a particular development application.5
Plans of management need to be approved by the Director of Planning (now the Secretary of the Department of Planning and Environment).6
When SEPP 44 was made councils were encouraged to amend their local environmental plans to identify core koala habitat within an environmental protection zone, apply special provisions to control the development of that land and make detailed provision for the protection of core koala habitat in their development control plans.7
Aim of the proposed changes
The changes seek to update the controls to better protect koala habitat.8 This is to be achieved through updated definitions and improved procedure, with a focus on streamlining the whole process.
The overall aim of SEPP 44 is to remain the same, that being the protection of koala habitat to prevent a further decline in population.
Outline of each of the changes
There are five changes proposed. These are to:
- increase the number of tree relevant species. The species of tree that make up potential koala habitat are being increased from 10 species to 65. The updated list reflects the NSW Koala Recovery Plan9 and includes other tree species supported by established scientific evidence.
- broaden the definition of core koala habitat. Under the revised definition of core koala habitat, the habitat will be identified through whether there are the characteristics plant communities that make up a koala habitat or physical evidence that koalas are present, regardless of tree species.
- update the relevant guidelines. The current guidelines were made by the then Director of Planning in 1995 when the SEPP was made.10 The revised guidelines are being introduced to support comprehensive plans of management and simplify the development process.
- no longer require individual plans of management. Applications will be assessed against revised criterial set out in the guidelines.
- remove the requirements relating amending local environmental plans to identify core koala habitat. These requirements will be taken out of the Policy and dealt with through a local planning direction under section 117 of the Environmental Planning and Assessment Act 1979 (EP&A Act).
Effectiveness of the SEPP 44 to date
From a planning perspective the loss, modification and fragmentation of habitat posed by development is the biggest threat to the koala. SEPP 44 sought to address this by putting koala habitat protection on a strategic footing by seeking to ensure that core koala habitat was mapped and where possible incorporated into council's local environmental plans.
Progress to date indicates that SEPP 44 has not been particularly effective. Only four comprehensive plans of management have been approved under the Policy. There are plans in force for Kempsey, Port Stephens and Lismore City and Coffs Harbour City local government areas.11 Another ten councils are currently in the process of preparing comprehensive plans of management.12
The failure of councils to adopt comprehensive plans of management has meant that applicants have largely borne the costs of establishing whether land is core koala habitat.
While some grant funding has become available to councils through the Saving our Species program, New South Wales would do well to look at the approach adopted in Queensland to mapping koala habitat.
In Queensland, the Government has developed a series of koala maps for the South East corner of the state. These maps classify koala habitat, which helps applicants get a better understanding of whether land is koala habitat and if it is how significant it is and what the specific requirements are that apply to development on that land.
Mapping koala habitat in a consistent way across New South Wales and generating maps that operate at the parcel scale has much greater potential to reduce the risks of habitat fragmentation caused by the planning processes and make the requirements clearer for applicants.
Overall, these changes appear to be aimed at two main areas: to improve the protection of koala species and to seek to streamline administrative processes.
The changes will mean that more land is potentially subject to the Policy and will require plans of management.
It is not clear whether the proposal really addresses the effectiveness or otherwise of the Policy to date - particularly around the failure to map and impose management actions across whole local government areas.
The push away from individual plans of management will be welcome by applicants but it is too early to tell what the changes will mean for them in practice.
Funding for mapping and the preparation of comprehensive management plans is potentially the biggest issue. New South Wales is well advised to look to Queensland which has adopted a risk-based approach to identify koala habitat and give applicants much better information on what to expect when preparing their applications.
cl.3 of SEPP 44
1 These represented the know geographic distribution of koalas in NSW in February 1995
3 cl.6 of SEPP 44
4 cl.4 of SEPP 44
5 cl.11 of SEPP 44
6 cl.11 of SEPP 44
7 cl.15 of SEPP 44
8 Department of Planning and Environment (November 2016) Explanation of Intended Effect: SEPP No 44, p.7
10 The Guidelines are in Part 2 of Planning Circular B35 – Koala Habitat Protection
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