Australia: Changes to koala habitat protection State Environment Planning Policy in NSW

Last Updated: 13 December 2016
Article by Peter Holt and Samuel Lane

Most Read Contributor in Australia, February 2017

Background

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.

Conclusions

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.

Submissions can be made online up until 16 December 2016 at www.planning.nsw.gov.au/proposals. A copy of the explanation of intended effect can be found here.

Footnotes

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

9 http://www.environment.nsw.gov.au/resources/threatenedspecies/08450krp.pdf

10 The Guidelines are in Part 2 of Planning Circular B35 – Koala Habitat Protection

11 http://www.environment.nsw.gov.au/animals/KoalaConservation.htm

12 http://www.environment.nsw.gov.au/animals/KoalaConservation.htm

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.