On Friday 7 February 2020, the new laws and mapping intended to improve protections of koalas in south east Queensland (SEQ) commenced, introduced through the: Nature Conservation and Other Legislation (Koala Protection) Amendment Regulation 2020 (Qld).
These reforms are intended to better protect remaining koala habitat in SEQ from being cleared and to improve the safe movement of koalas through koala habitat areas.
By Revel Pointon, Senior Law Reform Solicitor, Brisbane
We commend the Queensland Government for seeking to bring more consistency to development assessment that may impact koala habitat. However, we are strongly disappointed that exemptions have been provided for non-essential development to ride over the top of these new laws, such as for Priority Development Areas, state infrastructure or clearing under a property map of assessable vegetation.
Successive Queensland Governments have attempted to protect koalas through various reforms for decades, but each time they have failed as the reforms were full of loopholes. This time, we need the reforms to be regularly evaluated against koala population monitoring data and further strengthened if we don’t see on-ground improvements within populations. We also desperately need improvements to the biodiversity offsets framework so that offsets provided are actually effective.
These amendments may lead to greater protection of mapped koala habitat, through:
- more consistent regulation of clearing of mapped koala habitat in SEQ;
- the removal of some existing exemptions which normally allow clearing without assessment, such as clearing for the broadly framed ‘urban purpose in an urban area’, and limiting the use of some accepted development codes; and
- more consistent application of assessment benchmarks for other development that may impact safe koala movement through koala habitat areas.
However, the framework is let down by:
- numerous exemptions which allow clearing in koala priority areas, including for category X areas subject to a property map of assessable vegetation, priority development areas and state infrastructure;
- lack of reforms to the highly flawed environmental offsets framework in Queensland; and
- mapping that has left out known quality koala habitat, for example through the Redlands and Moreton Bay regions, with only landholders able to seek amendments to the maps formally and no power for koala carers and conservationists to formally nominate unmapped areas with evidence of importance to koalas.
Reportedly more than 15,000 hectares of known koala habitat has not been included in the map from the Moreton Bay Regional Council and approximately 7500 hectares from Redland City Council area. However, the Government states the mapping has increased the protected koala habitat area by more than 421,000 hectares. Scientists are concerned that the protected areas are not sufficiently provided on the coastline, pushing koalas into poorer quality habitat inland.
The koala population has declined in SEQ by up to 80 percent in the past two decades, and since 1960 almost three-quarters of koala habitat has been cleared. The bushfire impacts to south east Queensland have put even greater pressure on our remaining koala habitat, with 30 percent of koala habitat being destroyed nationwide in recent bushfires, increasing the need to protect what is left.
There is concern that these gaps in the framework may jeopardise the strength of these reforms such that koala populations may continue to unsustainably decline, threatening the future of our koalas. Loss of habitat is the leading cause of the significant koala population declines in Queensland, since loss of habitat increases the risk of koalas being exposed to other key risks such as car hits and dog attacks, as well as disease from heightened stress lowering their immune systems.
These reforms only apply to SEQ mapped koala habitat. We encourage the Queensland Government to extend these protections to koala habitat throughout Queensland which is also at risk from broadscale clearing for agricultural, industry and urban activities.
Thank you to all those who put in submissions to the draft mapping and the Draft South East Queensland Koala Conservation Strategy 2019–2024 in the last few months. The Queensland Government has released information to help explain these reforms, including factsheets, available here. Below we provide more detail on the new laws.
What has changed?
These reforms introduce numerous changes to our planning laws in SEQ. The key things to be aware of are the following changes:
- A new Koala Conservation Plan Map has commenced, which designates priority koala areas and koala habitat areas, along with koala districts, which links to the planning laws regulating whether and how clearing can be undertaken on the mapped sites in SEQ. Amendments were also made to Koala district C to bring it into line with the SEQ Regional Plan area;
- Changes to our planning laws, particularly the: Planning Regulation 2017 (Qld) (Planning Regulation), which provides for:
- restrictions on clearing in koala priority areas, except where an exemption applies – see below for information on exemptions;
- the State Assessment and Referral Agency to be triggered, either as a referral agency or assessment manager where it is not otherwise regulated by the local government, for all assessable clearing activities in koala habitat areas, which will be assessed, under the new State Development Assessment Provision (SDAP) for Development in South East Queensland Koala Habitat Areas (State Code 25). A Guideline has been released to assist officers in applying the code. This clearing will be code assessable development;
- new assessment benchmarks to be applied by local governments for development applications which do not involve clearing, in mapped koala priority areas or koala habitat areas (see Schedule 11 of the Planning Regulation, and the Guideline). An updated Koala-sensitive design guideline has been released which can be applied in development assessment to determine what appropriate requirements for development, but is not a statutory document.
- Amendments to the definition of koala habitat to broaden it to include any vegetation, not just woodlands, in recognition of the diversity of vegetation koalas require and utilise, reflected in changes to the Nature Conservation (Koala) Conservation Plan 2017. The definition of a koala habitat tree remains the same but has been inserted into this Plan;
- Some minor changes to the Environmental offsets Regulation 2014, the Vegetation Management Regulation 2012 and a new version of the Queensland Environmental Offsets Policy (Version 1.8) which clarifies that local governments may only provide offsets for matters of local environmental significance;
How do the exemptions apply to the restriction on clearing in koala priority areas?
The exemptions to the restrictions on clearing are provided in schedule 24 of the Planning Regulation (definition of ‘exempted development), and include the following clearing activities:
- any clearing of 500m2 on any site;
- firebreaks and fences;
- priority development areas;
- state development areas;
- areas mapped as category X under a property map of assessable vegetation made or applied for prior to 7 February 2020;
- state infrastructure; and
- clearing under an accepted development code, unless the clearing is in excess of these newly introduced triggers applicable only for SEQ koala habitat areas:
- the construction or maintenance of a fence, road, track, irrigation channel, contour bank or other linear infrastructure, other than a powerline or drainage and erosion control structure, if the cleared area is more than 5m wide
- the construction or maintenance of an airstrip or helipad if the cleared area is more than 500m2
- the construction or maintenance of non-linear infrastructure, other than an airstrip or helipad, in a category B area or category C area if the cleared area is more than 500m2
- an extractive industry, other than clearing for a fence, road, track, irrigation channel, contour bank or other linear infrastructure, in a category C area if the cleared area is more than 500m2
- the diversion of a section of a watercourse or drainage feature, within the meaning of the Water Act 2000, schedule 4, in a way that replicates the section, in a category C area if the cleared area is more than 500m2
The exemption for clearing for an ‘urban purpose in an urban area’ no longer applies to clearing of koala habitat in a koala priority area. This exemption remains for any other regulated clearing.
What remains the same?
Development or clearing that does not require assessment under the Planning Act 2016 (Qld) framework will not be impacted by these changes, for example clearing under an accepted development code except where above the threshold described below.
There are also no changes to the protections of koalas outside of SEQ through these reforms.
The federal Environment Protection and Biodiversity Conservation Act 1999 (Cth) will continue to apply to any activity which may have a significant impact on koalas in Queensland.
How are offsets impacted?
There are no substantial changes to the Environmental Offsets Act 2014 (Qld) framework through these reforms. A new version of the Queensland Environmental Offsets Policy (Version 1.8) has been released which makes minor changes, including clarifying that local governments may only provide offsets for matters of local environmental significance. The government is expected to release the results of the review of Queensland’s Environmental Offsets Framework in the next few months (see here for information on this review).
The new map is intended to be reviewed and updated annually. Under the Regulations only landholders or parties acting under consent of the landholder can apply to make, amend or revoke koala habitat area mapping on their land. This is unfortunate given the amount of community knowledge and interest there is in proposing areas that may have been missed through the map modelling used. Those applying for an amendment to the map must use the approved process, outlined in this Guideline, with changes taking effect if it is determined that the map requires amendment to reflect on-ground koala habitat. Interested citizens who do not have an interest in land concerned have the ability to declare sightings through WildNet and the Atlas of Living Australia. This data may be used to inform the Queensland Government’s review in updating the maps annually.
How does this affect the powers of local governments?
Local governments will not be allowed to map koala habitat separately from the State map, as koalas are a matter of state environmental significance, as has been the case for some time. However they may continue to map other environmental values that are matters of local environmental significance, including biodiversity areas more broadly. Local governments are empowered under these changes to continue to regulate development that may affect koalas in a way that is stricter than provided for by the State Government, as long as their laws are not inconsistent with the State laws.
Opportunities to be involved in Qld koala policy from here?
There are no more formal opportunities to input into the government on their work on the SEQ Koala Conservation Strategy. The Strategy is intended to be released later in 2020. You can of course always write to the government to inform them of your concerns about the policy, new regulations or mapping.
The Koala Advisory Council will continue to meet to provide input into the evaluation of how effective these measures are at achieving the aim of better protecting koalas in SEQ.
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