The new Koala assessment requirements in NSW - what does it all mean?

Martin Sullivan, Principal Ecologist

What is the difference between the new Koala Habitat Protection SEPP and the previous framework under SEPP No 44 ?

The key differences with the new Koala Habitat Protection SEPP include:

•  Introduction of a Koala habitat map, which is the trigger for development assessment.  Two units are mapped:

       o Koala Development Application Area (areas requiring development assessment); and

       o Site Investigation Areas (applies to the development of Koala Plans of Management only)

• A change in definition of ‘Core Koala Habitat’ to:

      o Land where Koalas are present; or

      o Land which has been assessed by a suitably qualified and experienced person as highly suitable Koala habitat and where Koalas have been recorded locally within the past 18 years.

• A significant expansion in Koala feed trees from 10 to 123 species which includes a range of non-eucalypt species

• ‘Streamlining’ of development assessment processes in relation to impacts to Core Koala habitat. 

What happens if you have an existing development application which was lodged prior to 1 March 2020?

Don’t worry, savings and transitional arrangements apply to all Development Applications (DAs) lodged, but not yet approved, prior to the commencement of the new Koala Habitat Protection SEPP.  These developments are subject to the former SEPP44 (and any existing Koala Plans of Management - KPOMs) which applied at the time of submission. 

Any KPOMs made under the former SEPP44 (e.g. Campbelltown, Port Stephens, Port Macquarie-Hastings etc.) continue to apply under the Koala Habitat Protection SEPP (i.e. they don’t need to be updated).  Any DAs lodged after 1 March 2020 will need to consider Koala habitat under the Koala Habitat Protection SEPP if it applies, so read on.

Where does the new Koala Habitat Protection SEPP apply?

The new Koala Habitat Protection SEPP only applies to ‘development’ under Part 4 of the NSW Environmental Planning and Assessment Act 1979 (EP&A Act), specifically excluding Part 5 ‘activities’ (which are also excluded from assessment under the Biodiversity Assessment Method).  It also only applies to sites within certain Local Government Areas (LGAs) – these are the same as included under the former SEPP44 and effectively cover all of eastern NSW.

Application of the Koala Habitat Protection SEPP is in addition to any assessments which may be required through the Biodiversity Assessment Method (see this article to determine whether your site triggers assessment) and EPBC Act.  Depending on the location of your site, vegetation and habitat present, and potential impacts, you may be required to:

• Assess Koala habitat in accordance with the Koala Habitat Protection Guideline, potentially undertake detailed site surveys to map habitat and determine Koala presence, prepare a Koala Assessment Report and provide compensatory measures.

• Assess the presence of Koala and suitability of habitat through the Biodiversity Assessment Method (using potentially different methods to the guideline) and provide biodiversity offsets through Koala ‘Species Credits’, or payment to the Biodiversity Conservation Fund.

• Assess the significance of your proposal in accordance with the EPBC Act referral guidelines for the vulnerable Koala.  If there is potential for a significant impact then prepare a referral to the Federal Government, potentially prepare a more detailed assessment (depending on the nature of impact), and provide offsets for residual impacts to Koala which may be in addition to those required under the guideline or Biodiversity Assessment Method.  Importantly, impacts to Koala habitat of more than 2 hectares may require referral.

Can you walk me through the process?

Step 1: Is your proposal a Part 4 ‘development’ under the EP&A Act?

• If yes, proceed to step 2.

• If no, then Koala Habitat Protection SEPP does not apply.  You may still need to consider requirements under the BC Act and EPBC Act.

Step 2: Does a Koala Plan of Management exist for your LGA or the part of your LGA in which your site is located? 

• If yes, then you will need to follow the requirements of the KPOM in considering impacts to Koala as a result of your proposed development.  You may still need to consider requirements under the NSW Biodiversity Conservation Act 2016 (BC Act) and EPBC Act.

Note: Impacts to Koala habitat identified through a KPOM in rural areas cannot be approved through a code-based assessment under the NSW Local Land Services Act 2016 (LLS Act) and formal assessment through the Biodiversity Assessment Methodology is required.

• If no, then you need to consider lot size (Step 3).

Step 3: Is your lot size (including all adjoining lots under the same ownership) greater than 1 hectare?

• If yes, proceed to step 4.

• If no, then Koala Habitat Protection SEPP does not apply.  You may still need to consider requirements under the BC Act.  It is unlikely that the EPBC Act will apply in relation to Koala, but you still may need to consider other values protected under the EPBC Act.

Step 4: Has any Koala Development Application Area been mapped on your site? (includes adjoining lots in the same ownership)

• If yes, proceed to step 5.

• If no, then Koala Habitat Protection SEPP does not apply.  You may still need to consider other requirements under the BC Act and EPBC Act.

Step 5: Are you proposing to clear any native vegetation or is your proposed development likely to impede Koala movement?

• If yes, then your proposed development impacts Koala or Koala habitat, proceed to step 6.

• If no, then your proposal is considered to have low or no direct impact (Tier 1).  Management measures outlined in the Koala Habitat Protection Guideline to address key indirect impacts may need to be included to support your DA.  You may still need to consider other requirements under the BC Act and EPBC Act.

Step 6: Are you willing to accept the Koala Development Application Area mapping on your site? (i.e. do you believe it has accurately mapped Koala habitat which may affect your development?)

• If yes, then a site assessment is not required, proceed to step 8.

• If no, then a site (field based) assessment is required, proceed to step 7.

Step 7: Engage a suitably qualified and experienced person to undertake a field-based assessment of the presence of Koala and highly suitable Koala habitat following the survey methods for Core Koala habitat detailed in the Koala Habitat Protection Guideline.  Eco Logical Australia (ELA) has experts ready to assist you here.  Following field assessment and mapping, is Koala habitat still present?

• If yes, proceed to step 8.

• If no, then Koala Habitat Protection SEPP does not apply.  You will need to demonstrate this conclusion through a detailed assessment to accompany your DA.  You may still need to consider other requirements under the BC Act and EPBC Act

Step 8: Engage a suitably qualified and experienced person to prepare a Koala Assessment Report which details how the proposed development avoids, minimises and compensates for impacts to Koala habitat following the Koala Habitat Protection Guideline. Again, ELA are experienced in this area and can assist.

What are the strategic planning implications?

The Koala Habitat Protection SEPP has (when compared to SEPP44) provides for ‘streamlined’ assessment where Koala habitat is to be impacted.  Under the former SEPP44, impacts to Koala habitat on a development site needed to be managed through an individual Plan of Management (PoM) which needed to be approved by the former Director-General of the National Parks and Wildlife Service, where the new Koala Habitat Protection SEPP approach requires assessment through the guidelines and does not require approvals other than those from the consent authority.

The new Koala Habitat Protection SEPP provides Ministerial direction for Councils to consider Koalas as part of Planning Proposals.  Either ‘Core Koala Habitat’ is to be zoned as Environmental Protection, or provisions need to be included to control development on land which is ‘Core Koala Habitat’.  The elevation of Koala habitat above other biodiversity values at the strategic level may go some way to compensate for the recent losses to Koala populations through ongoing drought and wildfire.

As per the previous SEPP 44, Councils can prepare Koala Plans of Management (KPOMs) for part or all of their Local Government Areas, however they can only apply to areas in the Koala habitat map identified as site investigation areas.  Any KPOM prepared by Council must demonstrate Core Koala Habitat, plus other features which may support Core Koala Habitat (e.g. landscape connectivity features).  A KPOM must be approved by the Department of Planning, Industry and Environment (DPIE) and be prepared in consultation with the Environment, Energy and Science division of DPIE and other relevant stakeholders including the Local Land Services (LLS).  There are statutory requirements for the public exhibition of KPOMS and notification for effected landholders. 

The important part to consider here is that other habitat identified as ‘Site Investigation Areas’ on the Koala habitat map may become ‘Core Koala Habitat’ through the development of a KPOM by the relevant Council should Koala or appropriate habitat values be present.

Are there likely to be implementation or consistency issues?

While the Koala Habitat Protection Guideline essentially requires an assessment to follow the sustainable development principles of avoid, minimise then offset, there is potential for conflict with requirements under the NSW Biodiversity Conservation Act 2016 (BC Act) and the implementation of the Biodiversity Assessment Method (BAM), as well as within the guideline itself. 

For example, under the guideline, the use of compensatory measures (including Biodiversity Offsets) for impacts to Koala is only permitted once it has been demonstrated that options to avoid, minimise and manage impacts to Koala habitat have been exhausted.  While these are the same principles outlined in the Biodiversity Assessment Method, the guideline requires a much higher level of compliance than what may be otherwise required. 

The guideline outlines six principles and 13 criteria which are required to be considered.  Principle 3 includes criteria that require the proposed development to avoid the direct loss of Koala habitat and avoid fragmentation, whilst Principle 4 includes criteria to demonstrate how impacts can be managed in a way that habitat is not fragmented, higher value areas are retained and function is maintained. 

The guideline does not provide clear guidance on the priority or ranking of various principles or criteria, and therefore it may be interpreted by the consent authority that no impact to Koala habitat is to occur (Principle 3), despite later principles allowing further detailed assessment and some impact to Koala habitat. 

How the guideline is interpreted, and principles applied by the various consent authorities remains to be seen, however delivering a consistent approach across NSW will be challenging.

So how do we do this?

In general, application of the Koala Habitat Protection SEPP can only be undertaken by a suitably qualified and experienced person.  This includes ecologists with tertiary qualifications, a minimum of three years’ experience, demonstrated experience in Koala survey methods over more than 10 surveys, the ability to accurately identify Koala feed trees and distinguish Koala pellets (scats) from other similar species (such as Brush-tailed Possum).  Evidence of experience and qualifications must be demonstrated in the Koala Assessment Report. 

These onerous requirements demonstrate the need to ensure you engage the right people to assist with your development.  At ELA, we have over 20 ecologists that have the skills and experience to apply the Koala Habitat Protection Guideline, over 20 Accredited Assessors who can apply the Biodiversity Assessment Method, and a team of EPBC Act specialists who can help you navigate the complexities of biodiversity assessment in NSW.

Contact us on 1300 646 131 to assist!