Breellen Warry, Partner; Peter Holt, Special Counsel and Georgia Appleby, Associate at Holding Redlich discuss the new State Environmental Planning Policy (Koala Habitat Protection) 2019, by examining its implications, including the native Veg code.
When the new State Environmental Planning Policy (Koala Habitat Protection) 2019 (Koala SEPP) commenced on 1 March this year, it was difficult to foresee that the Policy had the potential to bring the New South Wales Coalition Government unstuck.
It is a relatively rare thing when a State planning policy moves from within the planning system into wider public debates. The last time something this big happened in the planning space was in 2011 when the Coalition, then in opposition, made the repeal of Part 3A (Major infrastructure and other projects) of the Environmental Planning and Assessment Act 1979 a centrepiece of its campaign to get elected.
The aim of the new Koala SEPP was to seek to reverse the trend of population decline by stopping the loss, modification and fragmentation of koala habitat in NSW. In this way, the Policy would overcome the criticisms of the former State Environmental Planning Policy No. 44 – Koala Habitat Protection (SEPP 44) which was understood to be doing very little to prevent the degradation of koala habitat.
However, discussions regarding the scope and effectiveness of the Koala SEPP soon became centre stage when in September a political dispute arose as to the wider impact of the Policy on farmers and their ability to clear vegetation on private land using self-assessable codes.
In one corner you had the Deputy Premier and Nationals leader John Barilaro forcefully advocating that the Koala SEPP represented a “nail in the coffin for farmers”[1] as it unreasonably expanded the scope of core koala habitat and restricted the nature of the clearing activities that could be undertaken by farmers on their properties. Concerns were also raised by the timber industry who were concerned that the Policy would shut down private native forestry operations.[2]
In the other corner was the NSW Premier Gladys Berejiklian and Planning and Public Spaces Minister Rob Stokes whose position was that the Koala SEPP was only intended to apply where a development application was required and that the Policy would not interference in routine agricultural practice.[3]
A month on from the initial fracas – there has been something of a truce called. Changes were made to the Koala SEPP which were published on 16 October 2020. The NSW Government has also introduced the Local Land Services Amendment (Miscellaneous) Bill 2020 (Bill) which has passed the NSW Legislative Assembly and is set to be debated in the Legislative Council in the coming weeks.
In this article, we look at the issue that was at the heart of the dispute, namely the relationship between the Koala SEPP and the Local Land Services Act 2013 (LLS Act) and its implications on the ability to clear native vegetation. We also look at how the changes proposed in the Bill seek to change this relationship.
Implications of the Koala SEPP on the clearing of native vegetation
One of the key changes brought about by the commencement of the Koala SEPP was the expansion of the scope of the definition of core koala habitat.
Under former SEPP 44, for land to be core koala habitat, it needed to be 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.
The Koala SEPP significantly reduced this threshold by removing the requirement for breeding females and instead including land where koalas are present, or have been recorded as being present in the last 18 years, or where the land has been assessed as being highly suitable koala habitat.
By expanding the scope of core koala habitat, the Koala SEPP impacts on a landholder’s ability to clear native vegetation in two ways:
- firstly, it means that some form of consent or approval may be required to clear land where previously none existed; and
- secondly, and more significantly, it changes the classification of land under the LLS Act so that it is excluded from the operation of the Land Management (Native Vegetation) Code 2018 (Native Veg Code) where previously some forms of self-assessable clearing were authorised under that Code.
How is the Native Veg Code switched off?
Part 5A of the LLS Act enables the mapping of designated areas of land into 4 categories:
- Category 1 – Exempt Land, where the clearing of native vegetation is not regulated under Part 5A of the LLS Act (Cat 1 Land);
- Category 2 – Regulated Land, where the clearing of native vegetation is regulated under Part 5A of the LLS Act (Cat 2 Land); and
- Category 2 – Vulnerable Regulated Land, where the clearing of native vegetation is regulated under Part 5A of the LLS Act but, because of its vulnerability, is subject to additional restrictions and extended to the clearing of dead and non-native plants; and
- Category 2 – Sensitive Regulated Land (Cat 2 Sensitive Land), where clearing of native vegetation is not permitted under the Native Veg Code.
Critically, the identification of land as koala habitat under a Koala Plan of Management (KPOM) approved under the Koala SEPP, being land which in the opinion of the Environment Agency Head is core koala habitat, has the consequence that the land becomes Cat 2 Land under the LLS Act.[4]
Once the land becomes Cat 2 Land, the LLS Reg effectively designates it as Cat 2 Sensitive Land.[5]
This is significant because Cat 2 Sensitive Land is excluded from the Native Veg Code.[6]
Therefore, the introduction of the Koala SEPP has had the effect that more land may be designated as Cat 2 Land, which might otherwise have been designated Cat 1 Land. This then has implications for the types of clearing activities that can be undertaken because once the land becomes Cat 2 Land, it is then designated Cat 2 Sensitive Land by operation of the Local Land Services Regulation 2014 (LLS Regs), and the Native Veg Code does not apply to authorise clearing of native vegetation on that land.
It is also much easier for land to become Cat 2 Land (and then Cat 2 Sensitive Land), because the land only needs to be identified as koala habitat under a KPOM and be, in the opinion of the Environment Agency Head, core koala habitat (consistent with the now much broader definition).
It is therefore possible that any land identified as koala habitat under the 5 existing KPOMs adopted under SEPP 44, or the newly made KPOM for Campbelltown City Council, may become Cat 2 Land (and therefore Cat 2 Sensitive Land) if the Environment Agency Head reasonably believes that the land is core koala habitat in accordance with the now much broader definition under the Koala SEPP.
How do these most recent changes address these concerns?
The introduction of the Bill and published amendments to the Koala SEPP are a clear acknowledgement that the concerns raised by farming interests back in September were not all “mistruths”[7] and were matters that required clarification.
This is why the Bill has been announced as striking a better balance between safeguarding koala habitat and ensuring certainty for farmers.[8]
The State Government have sought to address these concerns by amending the definition of core koala habitat in the Koala SEPP so that it only captures land that is either highly suitable habitat and koalas are present, or highly suitable habitat and there is a verified record of koalas.
The Bill also decouples the Private Native Forestry and the Land Management Codes within the LLS Act from the Koala SEPP.[9] However, it preserves the application of SEPP 44 in circumstances where land:
- is identified as core koala habitat within the meaning of SEPP 44 (being the former narrower definition);
- is subject to a KPOM approved under SEPP 44 and in force on or before 6 October 2020; and
- is located in the local government areas of Ballina, Coffs Harbour, Kempsey, Lismore or Port Stephens.
In this way, the Bill effectively grandfathers the existing KPOMs that are in force prior to the introduction of the Bill.
Other changes to the Policy
The published amendments to the Koala SEPP also make the following notable changes:
- the pink Development Application Map has been removed from the Koala SEPP in favour of returning to an on-the-ground survey method;
- the minimum exhibition periods for KPOMs have been increased from 28 days to 90 days; and
- references to koala feed trees have been amended to koala use trees to recognise their importance as habitat and a feed source.
The State Government did not, however, reduce the number of protected tree species which was increased from 10 under SEPP 44 to 123 under the Koala SEPP.
Lessons from the dispute over the Koala SEPP
Beyond the Policy being a focal point for the wider tensions between the Coalition partners, the key message in this debate is about understanding the wider-policy implications of any planning initiative.
Here, the focus was on the impacts of the Policy on urban expansion on the north coast of NSW or in peri-urban areas around our major cities.
Initially, the concerns about the wider-implications on farming activities were dismissed as being not relevant. After a somewhat tortured process there was a begrudging acceptance that changes were required to address those concern and changes were made.
Both sides of the debate want to protect koala habitat – for a time neither was listening to the others perspective.
Despite the resolution of the issue at a political level, within the Coalition the matter is not finally resolved. The Government still has to negotiate the Bill through the NSW Legislative Council where the numbers are such that the passage of the Bill in its current form cannot be guaranteed.
The public debate now seems to have changed focus: for the Government these changes have been about clarifying the law to better focus the Policy on ‘problem areas’. For others, the most recent changes reflect a real erosion of the protections afforded to koala habitat under the Policy as originally introduced.
So despite the Government making peace with itself, the public debate over the Koala Policy may not have ended.
[1] Kevin Nguyen, ‘The NSW Government is split of koala policy – this is why John Barilaro hates it’, 10 September 2020, ABC News.
[2] https://timbernsw.com.au/wp-content/uploads/2020/05/Timber-NSW-Submission-to-Department-of-Planning-Industry-and-Environment-Koala-Habitat-Protection-Guideline-April-2020.pdf
[3] Rob Stokes, ‘Opinion: My colleague Barilaro’s koala claims are a pack of mistruths: Stokes fires back’, 10 September 2020, The Sydney Morning Herald.
[4] See section 60I(2)(j) of the LLS Act and clause 111 of the LLS Regs.
[5] See clause 108(2)(b) of the LLS Regs.
[6] See clause 124(1)(a) of the LLS Regs.
[7] Rob Stokes, ‘Opinion: My colleague Barilaro’s koala claims are a pack of mistruths: Stokes fires back’, 10 September 2020, The Sydney Morning Herald.
[8] Paul Toole and Rob Stokes, ‘NSW Government finalises koala SEPP’, Ministerial Media Release, 7 October 2020.
[9] Paul Toole and Rob Stokes, ‘NSW Government finalises koala SEPP’, Ministerial Media Release, 7 October 2020.
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
Connect with Georgia Appleby via LinkedIn
