The draft South-East Queensland Koala State Planning Regulatory Provisions came into effect on 12 December 2008. The final Regulatory Provisions came into effect on 1 July 2009 following consultation with conservation groups, local government and the development industry.
In March 2009, HopgoodGanim Partner David Nicholls and Solicitor Robyn Lamb undertook an in-depth analysis and critique of the Draft Regulatory Provisions in their paper titled " Conserving South-East Queensland Koalas". This alert will outline the major differences between the draft Regulatory Provisions and the final Regulatory Provisions.
When the Regulatory Provisions do not apply
Division One now includes a list of circumstances to which the Regulatory Provisions do not apply, including:
- development carried out under an effective development approval for an application that was properly made before the Regulatory Provisions began; and
- development 'consistent with' an effective preliminary approval under section 3.1.6 of the Integrated Planning Act 1997 (that is, a preliminary approval varying the effect of a local planning instrument) where the application for preliminary approval was properly made before the Regulatory Provisions began.
The exemptions also extend to particular rezoning approvals (where the resulting zone has been "preserved" by a transitional planning scheme, development application (superseded planning scheme) or Integrated Planning Act planning scheme), and to development that is declared to be a significant project, or in a State development area, under the State Development and Public Works Act 1971.
The exemptions do not appear to have dealt with circumstances where a development permit has been granted for one component of development (for example, Material Change of Use), but a development permit has not yet been granted in respect of other types of development (for example, reconfiguration of a lot) involved in undertaking a project.1
However, the exemptions appear to address a serious flaw contained in the Draft Regulatory Provisions, where subsequent applications made for development permits for Material Change of Use and/or reconfiguration of a lot, contemplated by a section 3.1.6 preliminary approval, required referral to the Department of Infrastructure and Planning2. The exemptions do not clarify the scope of the term 'consistent with' a section 3.1.6 preliminary approval. The question will arise as to whether development will only be exempt if it is strictly in accordance with the preliminary approval, or if there is room for flexibility under the Regulatory Provisions.
Development in an interim koala habitat area
The trigger for the application of the Regulatory Provisions is an application for Material Change of Use, reconfiguration of a lot or operational works in the interim koala habitat area. The interim koala habitat area is identified on a series of maps – SEQ regulatory maps (version 2) numbered SEQKH1 – SEQKH7.
Division 2 has been significantly reworked, with Table 1 and 2 replaced by a single table that applies to development applications for Material Change of Use, reconfiguration of a lot and operational works.
Development in Column 1 does not need to be referred to and assessed by the Department of Infrastructure and Planning. Column 1 is largely self-explanatory, with schedule 2 providing definitions for 'mature koala habitat tree' and 'private residence'. It should be noted that Item 3 considers that reconfiguration of a lot is confined to permanent boundary realignment and amalgamation of lots.
Column 2 and 3
Assessable development not contained in Column 1 will need to be referred to and assessed by the Department of Infrastructure and Planning. The assessment criteria are set out in Columns 2 and 3 of the Table. Column 2 will be satisfied if it can be shown that development in an interim koala habitat protection area does not adversely affect movement of koalas through a koala movement corridor. Schedule 3 states that this requires an assessment of whether there is any connectivity value for koala movement through the landscape, including movement within and between areas of intact bushland habitat. The connectivity value of an area as a koala movement corridor will be determined by assessing:
- areas of ecological significance;
- waterway and ecological corridors;
- koala habitat areas;
- site attributes, including specific habitat/vegetation types, condition and conservation status;
- distribution and density of koalas across the site;
- edge effects and other indirect impacts of development on ecological features; and
- the presence of infrastructure and services such as roads, which present barriers for koala movement and dispersal.
In effect, demonstrating that Column 2 is satisfied will likely require qualified koala and ecological experts to extensively investigate and report on the area.
If a development is found to have an adverse affect on the movement of koalas through a koala movement corridor, and is not identified in Column 1, it must meet the following criteria set out in Column 3:
1. be consistent with the proposed biodiversity outcomes in a planning scheme for the premises;
2. maximise opportunities for safe koala movement through its design and layout; and
3. offset the loss of mature koala habitat trees through replanting koala habitat at a rate of one tree for every one metre height of tree lost, either on-site, or if this is not possible, off-site.
The Regulatory Provisions and Integrated Planning Act provide no definition or guidance for the terms 'consistent with' or 'proposed biodiversity outcomes'. It would appear, however, that this will be somewhat easier to satisfy than that provided for in the Draft Regulatory Provisions, which required consistency with the planning intent of a planning instrument.
However, this is unlikely to be the case for development applications for preliminary approvals made under section 3.1.6 which seek to vary the effect of the planning scheme. These applications by their very nature are often not consistent with particular provisions of the planning scheme.
Koala Habitat Management Plan and Offsets
Criteria 2 and 3 in Column 3 require the preparation of a Koala Habitat Management Plan to ensure safe koala movement and provide for offsets to mitigate the loss of mature koala trees. Schedule 4 states that the purpose of a Koala Habitat Management Plan is to protect and enhance koala habitat values by describing the action and processes that will be undertaken to manage habitat and vegetation before, during and after construction at the development site, and if required, additional actions and processes off-site. The Koala Habitat Management Plan requires an outline of the:
- protective fences and/or other vegetation protection measures implemented;
- fauna-friendly fencing/fauna movement facilitation structures and fauna exclusion fencing constructed; and
- location, description and extent of habitat/vegetation to be retained cleared and planted.
owners must achieve long term protection by:
- securing a covenant under the Land Act 1994 or the Land Title Act 1994;
- securing a conservation agreement under the Nature Conservation Act 1992;
- inviting declaration of an area of high conservation value under the Vegetation Management Act 1999 (that identifies vegetation that cannot be cleared);
- gifting the area to the state (if acceptable to the Department of Environment and Resource Management) or local government for the purpose of inclusion in the protected area or parkland estate; or
- proposing its inclusion within a zone under a planning scheme, which has biodiversity/conservation intent.
The complexities surrounding the offset provisions in the Draft Regulatory Provisions have been reduced with the introduction of Koala Habitat Management Plans. However the Koala Habitat Management Plans themselves introduce more requirements for affected applications in an interim koala habitat area.
Comments contained in " Conserving South-East Queensland Koalas" regarding 'properly made applications' after the start of the Draft Regulatory Provisions on 12 December 2008 are equally applicable to applications made from 1 July 2009 to which the Regulatory Provisions apply. Many criticisms of the Draft Regulatory Provisions contained in "Conserving South-East Queensland Koalas" remain unresolved.
The Regulatory Provisions came into effect on July 1 2009. A copy of the Regulatory Provisions and the associated mapping of interim koala habitat protection areas are available on the Department of Infrastructure and Planning website.
1 Conserving South-East Queensland Koalas, David Nicholls and Robyn Lamb, p6
2 Conserving South-East Queensland Koalas, David Nicholls and Robyn Lamb, p6
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