By Senior Solicitor Cerin Loane

Following the stand-off between the NSW Nationals and NSW Liberal Party over koala protections at the end of 2020, the Government has announced its plans for rewriting koala protections, and once again, evidence-based policy making has taken a backseat to political deals.  But this time the Government is seeking to push things through with potentially reduced scrutiny by the NSW Parliament. 

Background  

The NSW planning policy for koala protection was the subject of heated debate at the end of 2020. The much-awaited State Environmental Planning Policy (Koala Habitat Protection) 2019 (Koala SEPP 2019) – which replaced the former State Environmental Planning Policy 44 – Koala Habitat Protection (SEPP 44) – was abandoned by Government after less than 12 months in operation.  

This came after the Government attempted to make changes to both Koala SEPP 2019 and the Local Land Services Act 2013 (LLS Act) via the Land Services Amendment (Miscellaneous) Bill 2020 (LLS Amendment (Miscellaneous) Bill). The proposed changes would have changed the way koala protections applied to rural land, and were viewed as a backwards step, and contrary to advice that koala protections needed to be strengthened to prevent koalas becoming extinct in NSW by 2050. However, the Government’s proposed changes were defeated after a brave and principled crossing of the floor by Liberal MP Catherine Cusack – a member of the recent parliamentary inquiry into koalas (see our update here). The LLS Amendment (Miscellaneous) Bill is now being examined by an Upper House Inquiry. 

Following the stalling of the LLS Amendment (Miscellaneous) Bill, the Government repealed Koala SEPP 2019, and put in place State Environmental Planning Policy (Koala Habitat Protection) 2020 (Koala SEPP 2020) – which mirrored many of the policy setting of former SEPP 44 – as an interim measure, with plans for a new Koala SEPP to be developed in 2021. See EDO’s previous analysis: www.edo.org.au/2020/12/08/new-koala-sepp-2020-commences/ 

Government Announcement  

On 8 March 2021, the Government announced key measures that would be implemented in a new Koala SEPP 2021. 

At this stage, much of the detail is still missing. EDO has not seen a draft SEPP or Explanation of Intended Effects outlining the specific detail of the proposed new Koala SEPP, and proposed changes to both the land clearing codes and codes for private native forestry are yet to be developed. 

However, it appears that the Government is proposing to not only rewrite the Koala SEPP, but to also implement a number of proposals from the LLS Amendment (Miscellaneous) Bill, via a revised Koala SEPP and direct changes to land clearing and private native forestry codes, in order to overcome the scrutiny of the Parliament and despite LLS Amendment (Miscellaneous) Bill being the subject of an ongoing Upper House Inquiry.  

Our initial comments and concerns, based on the key measures outlined in the Government’s announcement dated 8 March 2021 (in italics), are outlined below: 

  • “The existing Koala SEPP 2020 will continue to apply in core rural zones (RU 1, 2 and 3), except in metropolitan Sydney, Blue Mountains and the Central Coast, where Koala SEPP 2021 will apply across all zones” and “Once the codes are finalised and reflected in legislation (as required), the Koala SEPP 2020 will be repealed and the Koala SEPP 2021 will apply to the remaining land”: It appears that the Government intends for core rural zones (RU1, 2 and 3) to be excluded from the operation of the new Koala SEPP. Instead, koala protections in land clearing codes and private native forestry codes will be revised. However, it is unclear how those codes would regulate development in core rural zones that requires development consent under planning legislation (which is the current purpose of the Koala SEPP, and not a current purpose of those codes). 
  • “Koala Plans of Management and guidelines under Koala SEPP 2021 will require the approval of the Secretary of DPIE and the concurrence of the Secretary of DRNSW”: This proposed measure will introduce a new concurrence role for Secretary of the Department of Regional NSW.  
  • “Comprehensive Koala Plans of Management (KPoM) will be finalised to protect koala habitat in Tweed and Byron Shires”: Completing KPoMs for Tweed and Byron Shires is a welcome, long overdue step. However, it is unclear what will happen to other local government areas that have not yet developed a KPoM or had a draft KPoMs finalised. It is unknown whether the Government will try and implement a controversial proposal from the LLS Amendment (Miscellaneous) Bill that will essentially ‘freeze in time’ the identification of koala habitat for the purpose of designating category 2 regulated land in the land clearing code (meaning only those areas that have a final KPoM in place protected from land clearing under the LLS Act) – see our analysis of the LLS Amendment (Miscellaneous) Bill here. 
  • A number of other proposed measures do not directly relate to the operation of the Koala SEPP, but rather to the regulation of rural land. These proposed measures had been addressed by the LLS Amendment Miscellaneous) Bill – see our analysis of the LLS Amendment (Miscellaneous) Bill here. In particular: 
  • “The Minister for Planning will issue a new section 9.1 direction to ensure that only the Minister, and not councils, will be empowered to rezone land used for primary production to an environmental zone, or to rezone land currently in rural zones 1, 2 and 3 to other rural zones”: This change will prevent councils from being able to rezone land used for primary production to an environmental zone.  The LLS Amendment (Miscellaneous) Bill 2020 had attempted to deal with concerns about the rezoning of primary production land to environmental zone by inserting new provisions for “allowable activity land”. This newly proposed measure is an alternative mechanism that could prevent environmental zones from being used as intended, to protect environmentally sensitive land, including koala habitat. 
  • “Dual consent provisions for PNF in local environmental plans will be removed through Koala SEPP 2021”: This is not directly related to Koala SEPP. The LLS Amendment (Miscellaneous) Bill had also attempted to do this. There is a PNF Review currently on foot ,and this change pre-empts the outcomes of that review. 

At this stage it is unclear what community consultation, if any, will be undertaken before the proposed measures are implemented.  

Based on this initial announcement from Government, EDO is concerned that planning protections for koalas are once again being driven by politics, rather than being evidence-based. Further, it would be underhanded to progress controversial changes by changing policy and codes, while similar proposals are under consideration by a parliamentary inquiry. 

Given that an earlier Upper House inquiry 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.