Article summary:

– State Environmental Planning Policy (Koala Habitat Protection) 2019 replaces the former SEPP No 44 – Koala Habitat Protection. The SEPP was introduced 1 March 2020 but was amended on 16 October 2020 due to concerns raised by the National Party.

– This article discusses the processes under this updated version. The new SEPP has been developed to try and address the continued decline of the Koala across NSW.

– There are some key changes to the way the new SEPP relates to Development Applications (DAs) in NSW, including an increase in the number of Koala habitat trees from 10 (under the former SEPP44) to 124 (under the new Koala Habitat Protection SEPP).

– A development occurring in core Koala habitat, as identified during an assessment by a “suitably qualified Ecologist”, triggers the need for a Koala Assessment Report (KAR) to accompany a DA.

Steven Ward
Associate Ecologist

02 9493 9500
sward@emmconsulting.com.au

There has been a lot of recent press about Koalas, and the State Environmental Planning Policy (or SEPP) called SEPP (Koala Habitat Protection) 2019 (the Koala Habitat Protection SEPP). This is a new policy that came into effect on 1 March 2020, replacing the old SEPP No 44 – Koala Habitat Protection (SEPP 44). Both policies sought to protect and stop the decline of the Koala in NSW.

Recently, the new Koala Habitat Protection SEPP has been the subject of contention between the NSW Liberals and the National Party, with the Nationals raising concerns about the implications of the new SEPP for farmers and threatening to move to the crossbench. This resulted in some amendments to the SEPP that have changed the way the SEPP operates.

The background: SEPP 44 v Koala Habitat Protection SEPP 

First a brief background to what’s changed between the SEPP’s. The old SEPP 44 applied to particular local government areas (LGA’s) and this has remained the same (inclusive of name changes). A key difference is that the new SEPP has a much longer list of tree species that Koalas utilise, expanding from 10 species under SEPP44 to 124 tree species under the Koala Habitat Protection SEPP, broken down by seven Koala Management Areas (different parts of NSW).

The revised SEPP introduced the concept of a ‘Koala Development Application Map’ with areas mapped requiring additional assessment. This was a key concern raised by the Nationals. The SEPP was amended on 16 October 2020, which removed the use of a ‘Koala Development Application Map’. Thus, this no longer applies.

The revised Koala Habitat Protection SEPP assessment process

The Koala Habitat Protection Guideline was first introduced back in February 2020 as a draft. Following the recent political upheaval, the guideline has been updated to reflect the revised assessment process. The guidelines identifies the process for a development application, which is provided below. The key change is the removal of the ‘Koala Development Application Map’ and the need to engage a “suitably qualified and experienced person” to conduct a survey and determine whether the site contains “core Koala habitat”. Core Koala habitat is defined as highly suitable Koala habitat (where more than 15% or greater of the total number of trees within any vegetation community are the regionally relevant species) and the presence of Koalas (current or historical) within or adjacent to the site (2.5 km for coastal areas and up to 5km for inland areas). Where core Koala Habitat is identified as being present on a site, the DA must be accompanied by a Koala Assessment Report (KAR).

Source: Koala Habitat Protection Guideline, NSW Department of Planning, Industry and Environment (2020).

The exceptions 

There are a number of instances where the Koala Habitat Protection SEPP does NOT apply in addition to the pathways identified in the DPIE flowchart:

  • State Significant Development and State Significant Infrastructure. For these projects Koalas will need to be considered during the preparation of a Biodiversity Development Assessment Report (BDAR);
  • if a house is being rebuilt after being damaged or destroyed by bushfire, as long as the application is made within 5 years of bushfire damage and the asset protection zone is in accordance with Planning for Bushfire Protection; and
  • if the land can be shown to not contain ‘core koala habitat’.

Overlap with other legislation and Koala assessment requirements

It is important to note that the SEPP operates independently to the requirements of other NSW and Commonwealth legislation protecting the Koala. There will be situations where assessment under the SEPP is not required, but impacts to the Koala still need to be considered, such as within a Flora and Fauna Assessment to support a Review of Environmental Factors under Part 5 of the Environmental Planning and Assessment Act 1979).

In part 2 of this article series I discuss whether the Koala Habitat Protection SEPP could be improved further.

About the author:

Dr Steven Ward is an Associate Ecologist who has led assessments for multiple large-scale projects and has wide-ranging experience across sectors including infrastructure, urban development, water, and power. He holds a Bachelor of Science (Hons) and a Doctorate in Philosophy (Koala ecology in southern Sydney). Steven is also a Biodiversity Assessment Method (BAM) Accredited Assessor.