The NSW government announced the creation of a new State Environmental Planning Policy (SEPP) on 20 December which will come into effect on 1 March 2020. The policy will replace the existing SEPP 44 - Koala Habitat Protection, which came into effect in 1995.
The government announcement indicates that the intention of the new policy is to "help deliver on the Government’s objective to stabilise and protect koala protections across the State, as outlined in the NSW Koala Strategy".
Before providing a discussion of the new SEPP, it is worthwhile looking at what the existing SEPP 44 does. It is a policy that applies to local government areas that are classified as containing koala habitat or potential koala habitat. These are a range of areas covering much of the eastern coastal strip, some inland areas and areas of outer metropolitan Sydney.
The policy provides that affected Councils (before determining Development Applications), must determine whether the land to which the development applies is "potential koala habitat" or "core koala habitat". Before a Council can grant consent to a development within an area of core koala habitat, a plan of management must be prepared and the development needs to be not inconsistent with the plan of management. Plans of management prepared under the SEPP require the approval of the Council and the Director-General of National Parks and Wildlife. (While the SEPP applies to a large number of Council areas, it is believed that only six comprehensive plans of management have been approved by the government since the introduction of the SEPP. Many other Councils prepared draft plans and submitted them to the government, which have not been approved).
SEPP 44 also provided for affected Councils to survey land within their area for potential koala habitat and core koala habitat and include core koala habitat within an environmental protection zone. There were also provisions for Councils to prepare appropriate development control plans on land adjoining core koala habitat. The SEPP lists a total of ten species of tree as "feed tree species".
A summary of the main changes and features of the new SEPP is provided below:
- The SEPP references new mapping provided by the state government that identifies established and potential koala habitat.
- The number of tree feed species is increased from 10 to 123.
- Where a plan of management applies, the Council's determination of a development application must be consistent with the plan of management.
- For land where no plan of management applies, there are different procedures applicable depending on whether the land is identified on the koala development application map. These include relying on a guideline prepared by the state government, or relying on a specialist report/study provided by the applicant in accordance with the guideline.
- The new SEPP provides for koala plans of management to be approved by the Planning Secretary rather than Director-General of National Parks and Wildlife, although consultation must take place with a public service employee nominated by the Minister for Energy and Environment.
Conclusion:
The new SEPP contains many similarities with the existing SEPP 44. Some requirements have been downgraded in that if development is proposed on koala habitat, a plan of management with approval from Council and National Parks no longer needs to be prepared, but rather Council can rely on yet to be published guidelines or on a report submitted by the applicant. The approval role of National Parks and Wildlife in approving plans of management has also been removed and replaced with a consultation role.
The introduction of state-wide mapping and guidelines may provide greater certainty on controls that are applicable, as very few Councils with koala habitat have prepared plans of management and even fewer of those have been approved by the government. It is unclear whether the new SEPP will provide greater impetus for new plans of management to be prepared and approved.