Back in early November, we declared that peace had been reached over the controversial new State Environmental Planning Policy (Koala Habitat Protections) 2019 (Koala SEPP 2019) (see article here). However, it appears that we called it too early.
This is because by mid-November, the NSW Premier Gladys Berejiklian had announced that the NSW Government would scrap the Koala SEPP 2019, following the defeat of the Local Land Services Amendment (Miscellaneous) Bill 2020 (Bill) in the Upper House on 19 November 2020.
The Bill was defeated when Liberal MP and then Parliamentary Secretary Catherine Cusack crossed the floor and voted to send the Bill to a committee to debate the proposed amendments to the Local Land Services Act 2013 (LLS Act), thereby pushing the passage of the Bill into 2021. Cusack did so on the basis that the Bill had more to do with patching up a political disagreement than with protecting koalas. Cusack’s vote was the decider, and the Bill failed to pass – 18 votes to 19.
The Bill was introduced to give effect to a compromise that had been reached between the Liberals and the Nationals in October concerning criticisms that the Koala SEPP 2019 unreasonably restricted the ability of farmers to undertake clearing of native vegetation under the LLS Act. This is because it effectively switched off the Land Management (Native Vegetation) Code 2018 (Code) where previous some forms of self-assessable clearing were authorised under that Code. If passed, the Bill would also have authorised clearing in E zoned land.
Given the defeat of the Bill, the NSW Government has made a new State Environmental Planning Policy (Koala Habitat Protection) 2020 (Koala SEPP 2020) which commenced on 30 November 2020 and repealed the former Koala SEPP 2019, as well as the corresponding Koala Habitat Guideline made under Koala SEPP 2019.
The Koala SEPP 2020 has been made on terms similar to former State Environmental Planning Policy No. 44 – Koala Habitat Protection (SEPP 44), which is a Policy that has been heavily criticised for failing to prevent the continued destruction of koala habitat and rapid population decline.
However, there are two key changes to be aware of:
Clause 6 of the Koala SEPP 2020 includes a provision which states that the Policy does not apply to restrict the clearing of feed tree species if the trees are located in the asset protection zone for a replacement dwelling house that has been damaged or destroyed by bushfire. This was a provision that was included in the Koala SEPP 2019, but has been amended to remove the limitation that the feed tree be located within the existing building footprint.
Clause 16 of the Koala SEPP 2020 mandates that local councils (identified in Schedule 1 to the Policy) must survey its local government areas to identify areas of potential koala habitat and core koala habitat. This is a change from the original wording in clause 15 of SEPP 44 which made surveys a recommended but discretionary process. Also, clause 16 only requires that the council consider rezoning the land to an E-zone.
Notably, the new Koala SEPP 2020 has not adopted the longer list of koala use trees, being the 123 tree species identified in Schedule 2 to the Koala SEPP 2019. This means that the Policy now only includes protections for the 10 species identified in former SEPP 44. This does not align with the research conducted by the then Office of Environment and Heritage in 2018 which found that the number of species in fact relied upon by koala populations in NSW far exceed those 10 species identified in SEPP 44.
While the NSW Government has indicated that it will continue working on a new Policy in 2021, it is clear that the scrapping of the Policy has been a major setback in the protection of koala habitat in NSW. Urgent action is required as it is clear that SEPP 44 (and its reinvention in the Koala SEPP 2020) will likely be inadequate to stop the rapid koala population decline that we have seen in recent years.
We await the Upper House inquiry, headed by Greens MP Cate Faehrmann, with interest when Parliament resumes in the New Year.
Breellen Warry is a Partner within the Property and Projects team and specialises in environmental, development and planning and natural resources law. Breellen advises both private and public sector clients across various industries on planning, environment and government matters and has worked both within and for government agencies in NSW and in the UK. You can connect with Breellen via email or LinkedIn
Peter Holt is a Special Counsel in our Property & Projects Group and specialises in environmental, planning and local government law. He is regarded as an influential thought leader in the public policy debates about environmental planning matters in New South Wales. Prior to joining Holding Redlich, Peter worked for the Department of Planning and Environment and was responsible for the New South Wales Government’s planning reform agenda. Peter lectures casually at the Western Sydney University School of Law where he teaches planning and environmental law. Connect with Peter via email or LinkedIn
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