Last week, the NSW Nationals threatened to break up the state’s governing coalition over a koala protection policy they say creates an unfair amount of “red and green” tape for farmers.  But as EDO Policy and Law Reform Director Rachel Walmsley writes, the regulation is a minor update that does not do enough to protect koala habitat.

Of all the policies in the world to get upset about, this is really not one of them. There has been a lot of misinformation about the NSW Government’s planning policy on development in areas of koala habitat – the State Environmental Planning Policy (Koala Habitat Protection) 2019 (Koala SEPP) – that needs to be clarified. The current political debate appears to be triggered by assessment requirements proposed in a draft guideline being prepared under the updated SEPP – itself a subordinate regulatory instrument, which has already been in operation since March 2020. There is no change to the legislation that currently allows the clearing of koala habitat in NSW.

The new SEPP is one limited legal tool intended to help koalas, and on our expert analysis (see below) the SEPP will remain largely ineffective in addressing the exacerbated threats currently facing them.  It took just weeks for almost a quarter of koala habitat in NSW to be burnt in the bushfires, while it has taken the NSW Government 10 years to update the list of relevant koala habitat trees in the SEPP and fix up the definition of core koala habitat. The need for enforceable and effective laws is now more urgent than ever. The suggestion that this limited policy should be further weakened is 100% politics and 0% evidence-based.

Here are 10 facts about the new Koala SEPP:

  1. The new Koala SEPP is a minor strengthening of an existing instrument. There has been a policy setting out requirements for plans and development assessments in core koala habitat since 1995.[1]
  2. It is standard practice for Development Application processes to require assessment of impacts on a threatened species. This is not new, not unusual, and not unreasonable for a species headed for extinction.
  3. The Koala SEPP does not prohibit the clearing of koala habitat. In fact, outside of national parks, no areas of koala habitat are off limits to development under NSW laws.
  4. The Koala SEPP only applies for development that requires development approval under planning laws – the rules for routine farming activity and rural land clearing have not changed. That is, the Koala SEPP may apply to a farmer lodging a development application to their local council to carry out development in koala habitat, but it’s highly likely that such a development would have required assessment under the previous SEPP anyway.
  5. The relationship between the Koala SEPP and land clearing laws has not changed. Even if areas become mapped as core koala habitat under a comprehensive koala plan of management (a mechanism in both the former and current koala policy, and one that requires consultation and approval), and subsequently code-based clearing is excluded from those sensitive regulated areas, farmers can still apply and get approval to clear koala habitat under land clearing laws.
  6. The definition of koala habitat has been expanded due to the fact that the list of relevant tree species has been updated to improve scientific accuracy. While there are now 123 species identified, the listings are region specific and some regions such as Riverina, only list 9 relevant species. It has taken 10 years to update the definition of koala habitat so that it is scientifically accurate.
  7. Both the former and new Koala SEPPs apply to specified local government areas, (excluding National Parks and State Forests), and only on land over one hectare.
  8. Under the new SEPP, where a proposed development has low or no impact on koala habitat, no survey is required.
  9. The new SEPP does not rezone land, and the option for Councils to do a Koala Plan of Management is still voluntary, and involves consultation.
  10. Koala populations are headed for extinction by 2050 (or sooner) unless their habitat is protected. The policy under debate is still nowhere near the standard of regulation needed to effectively protect habitat of this iconic species.

Read our detailed analysis of the SEPP reform process:

The new NSW SEPP – State Environmental Planning Policy (Koala Habitat Protection) 2019 – commenced on 1 March 2020. With koala numbers having been in decline in NSW over the past two decades, a revised Koala SEPP was highly anticipated as an opportunity to bolster legal protections for koalas. Frustratingly, the finalised Koala SEPP does little more than tinker around the edges. The fact remains that NSW laws fall far short of providing tangible protection for koalas. And with koala populations and their habitats significantly impacted by the summer’s devastating bushfires, it’s going to take more than just a few revisions to provide our koalas and their habitats the real legal protection they need.

The status of koalas in NSW

Koalas are currently listed as a vulnerable threatened species in NSW, meaning there is a high risk of extinction in the medium-term.[2] Additionally, individual populations at Hawks Nest and Tea Gardens on the lower north coast, between the Tweed and Brunswick Rivers east of the Pacific Highway in the Northern Rivers area and within the Pittwater Local Government Area in northern Sydney are listed as endangered populations.[3]

Accurately estimating koala numbers is difficult. Despite regulations, policies and community initiatives, overall koala numbers in NSW are in decline. In 2016, the NSW Chief Scientist relied on the figures of Adams-Hoskings et.al. in estimating approximately 36,000 koalas in NSW, representing a 26% decline over the past three koala generations (15-21 years).[4] We note however that other reports suggest koala numbers are even lower than this.[5]

These estimates were made before the catastrophic bushfire events of this summer, which have been devastating for koalas, with estimates showing that more than 24% of all koala habitats in eastern NSW are within fire-affected areas.[6] Many people are asking how our environmental laws can help conserve and restore vulnerable wildlife at this time – this is something that EDO continues to look at as we start to move forward from the events of this summer (see our response to Australia’s climate emergency).

A new state environmental planning policy is one legal tool intended to help koalas, but on our analysis the SEPP will remain largely ineffective in addressing the exacerbated threats currently facing them.  It took just weeks for almost a quarter of koala habitat in NSW to be burnt in the bushfires, while it has taken the NSW Government 10 years to simply update the list of relevant koala habitat trees in the SEPP. The need for enforceable and effective laws is now more urgent than ever.

Key changes to the NSW Koala SEPP[7]

On 1 March 2020, the NSW State Environmental Planning Policy No 44 – Koala Habitat Protection (SEPP 44)[8], which has been in place since 1995, was repealed and replaced by a new State Environmental Planning Policy (Koala Habitat Protection) 2019 (new Koala SEPP).[9]

SEPP 44 aimed to protect koalas and their habitat, but its settings were weak and not targeted at the type or scale of projects with highest impact. Additionally, the problematic definitions of core koala habitat and potential koala habitat were adopted by other legislation (including the Local Land Services Act 2013 (LLS Act) and the Biodiversity Conservation Act 2016 (BC Act)), where they were used as a benchmark for triggering processes and regulation relating to land clearing and development assessment.[10]

EDO has been calling for changes to SEPP 44 for the best part of a decade. In December 2010, EDO wrote to the Government on behalf of Friends of the Koala noting that SEPP 44 ‘is in urgent need of reform’.[11] In 2016, the Government announced a review of SEPP 44.[12] EDO made a submission on the Review of the Koala SEPP outlining our key concerns with its operation and making recommendations for improvement.[13] It wasn’t until fires began burning across the state late last year that the Government announced the release of the new Koala SEPP, just days before Christmas.

Despite recommendations that the Government consult on the text of a draft SEPP and any relevant guidelines or supporting material following its 2016 review, the final SEPP was made without any additional consultation; but it does address a number of stakeholder concerns. Most significantly, it updates the definition of ‘core koala habitat’ and removes the problematic concept of ‘potential koala habitat’, instead relying on mapping (a new Koala Development Application Map and new Site Investigation areas for Koala Plans of Management Map) to initially identify koala habitat. However, certain legal mechanisms still apply only to core koala habitat.[14]

The new SEPP also updates the list of feed tree species in Schedule 2, used to help identify koala habitat, from 10 species to 123 species, categorised into 9 distinct regions. Other key changes include:

  • Removing the requirement for site specific plans of management (in instances where a comprehensive Koala Plan of Management is not in place), instead requiring decision-makers to take into account new standard requirements in a Koala Habitat Protection Guideline. Concerningly, the Guidelines have not yet been seen, there are no formal requirements for developing the Guidelines (e.g. no requirements for community consultation or peer review) and the standards within the Guidelines are not mandatory – the new Koala SEPP requires only that they be taken into account.
  • Moving provisions relating to how local environment plans and other planning instruments should give effect to protection to koalas from the SEPP to a new Ministerial planning direction (which is yet to be made).

Ongoing concerns

There are also a number of key concerns that have not been addressed by the new Koala SEPP. For example:

  • No areas of koala habitat are off-limits to clearing or offsetting  NSW laws do not prohibit the clearing of koala habitat. Despite declining koala numbers and the devastation caused by this summer’s fires, NSW laws still allow koala habitat to be cleared with approval. The new Koala SEPP simply requires decision-makers to ensure development approvals are consistent with koala plans of management (PoMs) or, if a PoM is not in place, that the (yet-to be-made) Guidelines are taken into account. If our laws are to truly protect koalas and their habitats then the approval process must not allow important koala habitat to be offset or cleared in exchange for money, in the way that the NSW Biodiversity Assessment Method does. Rather, all development that has serious or irreversible impacts on koala habitat must be refused.
  • The requirement for councils to prepare Comprehensive Koala PoMs remains voluntary – Due to the slow uptake by councils (only 5 comprehensive PoMs have been finalised since SEPP 44 commenced in 1995),[15] EDO has previously recommended that the preparation of comprehensive koala PoMs (CKPoMs) be mandatory (i.e. the SEPP require that draft CKPoMs be prepared and exhibited within a particular timeframe).
  • The new Koala SEPP still only applies to limited types of development – As was the case with SEPP 44, the new Koala SEPP still only applies to council-approved development. This means that the new Koala SEPP does not apply to the wide range of development and activities that can impact on koala habitat, including complying development, major projects (State significant development and State significant infrastructure), Part 5 activities (e.g. activities undertaken by public authorities) and land clearing activities requiring approval under the LLS Act.
  • The 1 hectare requirement has not been removed – The arbitrary threshold of 1ha for triggering SEPP 44 has been carried over to the new Koala SEPP. Excluding sites below 1ha from the Koala SEPP leaves small koala habitat areas, particularly koala habitat in urban areas, without adequate protection. The 1 hectare requirement also contributes to cumulative impacts and can reduce connectivity across the landscape by allowing small patches to be cleared.
  • Climate change considerations have been overlooked – The review of SEPP 44 provided an opportunity to incorporate requirements to identify and protect habitat and corridors that will support koalas’ resilience to more extreme heat and natural disasters, even if there is no koala population in those areas now, however there is nothing in the new Koala SEPP that specifically addresses climate change.
  • Monitoring and compliance requirements have not improved – There are no new requirements relating to monitoring, review, reporting and compliance in the new Koala SEPP.

The future for NSW koalas

The new Koala SEPP highlights the overarching deficiencies in NSW laws to provide genuine protections for wildlife and nature. The way our laws are designed, very little is off limits to development or activities such as urban development, mining, and agriculture. While environmental laws provide processes for assessing environmental impacts, at the end of the day weak offsetting laws and discretionary decision-making powers allow destructive activities to go ahead to the detriment of our wildlife and natural resources. Contradictory policy settings in NSW laws mean that laws  aimed at conserving biodiversity and maintaining  the diversity and quality of ecosystems (such as the BC Act) are undermined by  other legislation that facilitates forestry, agricultural activities and developments (such as the LLS ActForestry Act 2012 (Forestry Act) and Environmental Planning and Assessment Act 1979 (EP&A Act)).  

Many of the recent initiatives by the NSW Government to address koala conservation have focused mainly on funding and policy, without substantial legislative or regulatory reform to increase legal protections for koala populations and habitat. The new Koala SEPP is no exception. While some improvements have been made, particularly in relation to the definition of core koala habitat, overall many concerns remain and the Koala SEPP is unlikely to result in improved outcomes for koalas.

Until our laws are strengthened to truly limit or prohibit the destruction of koala habitat, koala populations and their habitat will continue to be at risk and koala numbers will continue to decline in NSW, possibly to the point of local extinction. 

References

[1] The former State Environmental Planning Policy No. 44 – Koala Habitat Protection, commenced in 1995.
[2] Biodiversity Conservation Act 2016, s 4.4(3)
[3] See www.environment.nsw.gov.au/threatenedSpeciesApp/profile.aspx?id=20300www.environment.nsw.gov.au/threatenedSpeciesApp/profile.aspx?id=10615 and www.environment.nsw.gov.au/threatenedSpeciesApp/profile.aspx?id=10614
[4] NSW Chief Scientist & Engineer, Report of the Independent Review into the Decline of Koala Populations in Key Areas of NSW, December 2016 above no 6, citing Adams-Hosking, C, McBride, M.F, Baxter, G, Burgman, M, de Villiers, D, Kavanagh, R, Lawler, I, Lunney, D, Melzer, A, Menkhorst, P, Molsher, R, et al. (2016). Use of expert knowledge to elicit population trends for the koala (Phascolarctos cinereus). Diversity and Distributions, 22(3), 249-262. doi: 10.1111/ddi.12400
[5] See, for example, Paull, D., Pugh, D., Sweeney, O., Taylor, M.,Woosnam, O. and Hawes, W. Koala habitat conservation plan. An action plan for legislative change and the identification of priority koala habitat necessary to protect and enhance koala habitat and populations in New South Wales and Queensland (2019), published by WWF-Australia, Sydney, which estimates koala numbers to be in the range of 15,000 to 25,000 animals. In 2018, the Australian Koala Foundations estimates koala numbers in NSW to be between 11,555 and 16,130 animals, see www.savethekoala.com/our-work/bobs-map-%E2%80%93-koala-populations-then-and-now
[6] See Department of Planning, Industry and Environment, Understanding the impact of the 2019-20 fires, https://www.environment.nsw.gov.au/topics/parks-reserves-and-protected-areas/fire/park-recovery-and-rehabilitation/recovering-from-2019-20-fires/understanding-the-impact-of-the-2019-20-fires
[7] See https://www.planning.nsw.gov.au/Policy-and-Legislation/Environment-and-Heritage/Koala-Habitat-Protection-SEPP
[8]See https://www.legislation.nsw.gov.au/#/view/EPI/1995/5 
[9] See https://www.legislation.nsw.gov.au/#/view/EPI/2019/658
[10] As noted earlier in our submission, for example, for the purpose of the land management regime under Part 5A of the Local Land Services Act 2013, category 2-sensitive regulated land (on which clearing is more strictly regulated) is to include ‘core koala habitat’. 
[11] EDO NSW Submission on State Environmental Planning Policy No 44 – Koala Habitat, December 2010, available at https://d3n8a8pro7vhmx.cloudfront.net/edonsw/pages/3547/attachments/original/1485908888/Attachment_A_-_2010_EDONSW_SEPP_44_Submission_for_FOK.pdf?1485908888
[12] See https://www.planning.nsw.gov.au/Policy-and-Legislation/State-Environmental-Planning-Policies-Review/Draft-koala-habitat-protection-SEPP
[13]See https://d3n8a8pro7vhmx.cloudfront.net/edonsw/pages/3547/attachments/original/1485908884/170131_Koala_SEPP_44_Review_Submission_-_FINAL_to_DPE.pdf?1485908884
[14] For example, under clause 9 of State Environmental Planning Policy (Koala Habitat Protection) 2019, which applies to development on land for which no PoM is in place, the Guidelines will not apply if a suitably qualified and experienced person provides information that the land is not core koala habitat. [15] There are only  approved plans for five council areas, and a further nine Councils who have drafted or undertaken koala habitat studies See https://www.environment.nsw.gov.au/topics/animals-and-plants/native-animals/native-animal-facts/koala/koala-conservation