Koala controversy - what does the new Koala SEPP actually do?



It’s not every day that SEPPs make headline news, let alone threaten the stability of the NSW Government. So it was with interest that we followed the political controversy that unfolded this month surrounding the recent State Environmental Planning Policy (Koala Habitat Protection) 2019 (the Koala SEPP).

Absent in the media was any real discussion of how the Koala SEPP actually operates. We thought it timely to provide this little explainer.

In summary

  • The Koala SEPP establishes a specific regime for assessing the impact of proposed development on koalas and their habitat.
  • The SEPP also facilitates the preparation by local councils of Koala Plans of Management which then become the basis for assessing any development application (DA), rather than the SEPP.
  • The intent is to create greater consistency in how impacts on koalas and habitat are assessed when considering a new DA.
  • The Koala Habitat Protection Guideline, which underpins the operation of the SEPP and provides much of the detail on how DA assessment is to be carried out, is yet to be finalised.

What does the SEPP do?

The Koala SEPP is a replacement for SEPP 44 – Koala Habitat Protection. The Koala SEPP commenced in March this year however, the Koala Habitat Protection Guideline (the Guideline) which is central to the operation of the Koala SEPP, is yet to be finalised.

Application of the Koala SEPP is triggered by an application for development consent under the Environmental Planning and Assessment Act on land covered by the SEPP. This is any land within a specified list of local government areas (including some on the fringe of Sydney, such as Hornsby and Ku-ring-gai).

The consideration of the DA then depends on whether the local council has adopted a Koala Plan of Management (KPOM).

If the land is subject of a KPOM adopted by the council The council must be satisfied the DA is consistent with the adopted KPOM
If the land is not the subject of a KPOM adopted by the council

If the land subject of the DA is more than one hectare and the land is identified on the Koala Development Application Map

The council must take into account requirements of the Guideline in assessing the DA

Alternatively, the applicant can provide a report from a suitably qualified consultant confirming that either:

  • The land does not include any feed tree species listed in the SEPP
  • The land is not core koala habitat

Some points to note

  • The one hectare trigger applies to the size of the land the subject of the DA and any adjoining land within the same ownership. It is not a reference to the footprint of the proposed development. 
  • Similarly, when determining whether land includes feed tree species or is core koala habitat, the whole lot the subject of the DA is considered.
  • The list of feed tree species, which links to the assessment of whether land is “highly suitable koala habitat”, has been significantly expanded – from 10 species under SEPP 44 to 123 species under the new SEPP. The list of species is particular to regional areas (referred to as Koala Management Areas).
  • The threshold of what constitutes core koala habitat has been lowered in the Koala SEPP as compared with SEPP 44. Core koala habitat is defined by the SEPP as either an area:
    • Where koalas are present
    • Which has been assessed as being “highly suitable koala habitat” and where koalas have been recorded as being present in the previous 18 years

Assessment under the SEPP

Once a DA needs to be assessed against the Guidelines, a risk-based approach to assessment is taken. The Guidelines identify two tiers of development: 

  • Tier 1: development applications which can be demonstrated to have low or no direct impact on koalas or koala habitat
  • Tier 2: development applications which are likely to impact koalas and/or koala habitat

Tier 2 DAs are required to be supported by a Koala Assessment Report prepared in accordance with the Guideline. The Guideline provides a number of principles and criteria that need to be addressed in the report, with a focus on identifying options to avoid, minimise and manage impacts to koalas and koala habitat.

The other function of the SEPP and the Guideline is to create a framework for the preparation by local councils of KPOMs. Preparation of KPOMs require extensive survey and other ecological work to be carried out and the SEPP includes specific consultation requirements. Generally, KPOMs then need to take the risk-based approach to DA assessment outlined above. The SEPP does not impose any requirement on councils to prepare KPOMs.

Final thought

Although the recent political discussion has focused on the SEPP itself, (including the expanded list of tree species and the definition of core koala habitat), it is really the drafting of the Guideline that will determine the significance of the changes from SEPP44 and how onerous on proponents the new regime will prove to be. It will be interesting to see what changes, if any, are ultimately made to the draft Guideline once it’s finalised - watch this space!

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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