Following the defeat of the Land Services Amendment (Miscellaneous) Bill 2020 in the NSW Upper House in November (see our update here), the NSW Government has now taken steps to revert back to koala policy in line with the former State Environmental Planning Policy No. 44 – Koala Habitat Protection (SEPP 44).
On 30 November 2020, the Government published State Environmental Planning Policy (Koala Habitat Protection) 2020 (Koala SEPP 2020), and repealed State Environmental Planning Policy (Koala Habitat Protection) 2019 (Koala SEPP 2019) (and the Koala Habitat Guideline made under Koala SEPP 2019).
Koala SEPP 2019 commenced on 1 March 2020 following a lengthy review of SEPP 44, providing some long-waited improvements to koala protections (see our Analysis: Koala: new laws – old tricks). However, following a stoush within the NSW government (see our Updated Analysis: The truth about the Koala SEPP) the Government has abandoned its new koala policy and gone back to the drawing board.
Koala SEPP 2020 essentially replicates the objectives and provisions of SEPP 44 in relation to the processes for preparing koala plans of management, determining whether land contains potential or core koala habitat, and determining development applications on core koala habitat.
However, there are some notable changes, including:
- Bushfire rebuilds: A clause inserted into Koala SEPP 2019 that enabled the clearing of feed tree species to create an asset protection zone as part of the replacement of a lawfully erected dwelling house that has been damaged or destroyed by a bush fire has been retained – see clause 6 of Koala SEPP 2020. We note that this clause has been amended since it was first introduced to remove the requirement that the replacement dwelling house is within the existing building footprint. We also note that this clause is not limited to the bush fires of the 2019/2020 bush fire season.
- Changes to clause 16 – surveys, environment protection zones and development control plans: The wording of clause 16 of Koala SEPP 2020 (formerly cl 15 of SEPP 44) has changed to provide that a council of a local government area listed in Schedule 1 must (rather than should) survey the land within its area to identify possible potential and core koala habitat but must only consider rezoning land as an E-zone (rather than rezoning the land to an E-zone).
- Updates to outdated references: Koala SEPP 2020 updates outdated references to public officials and legislation, and the list of councils in Schedule 1 has been updated to reflect recent council mergers.
- Savings and Transitional provisions: Provisions have been included to ensure that koala plans of management made under former SEPP 44 and former Koala SEPP 2019 remain in force.
- Other minor language changes: There have been some minor changes made to the legal drafting of some clauses (e.g. cl 7, 8 and 9).
The Government has indicated that it intends to develop a new koala policy in 2021.
The decision to revert back to SEPP 44 is a significant backward step for koala protection in NSW, and going back to the drawing board in 2021 undermines the review process, engaged in in good faith by the community, that led to Koala SEPP 2019. Given that an Upper House Inquiry recently found that “the future of koalas in the wild in New South Wales cannot be guaranteed unless the NSW Government takes stronger action to prevent further loss of koala habitat”, any new policy developed in 2021 must put in place genuine, evidence-based protection for koala habitat that ensures the ongoing survival of koalas for generations to come.