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New EPBC Act Koala Referral Guidelines Released

The Department of the Environment (DoE) released new Environmental Protection Biodiversity Conservation Act 1999 ‘(EPBC Act) Referral Guidelines for the Vulnerable Koala’ in late December 2014 (‘the new guideline’). The guidelines supersede the Draft Referral Guidelines that were in operation up to late last year. This blog provides a general overview of the new Referral Guidelines as gleaned by the author through practical application of the guidelines and from a briefing delivered by DoE Director of Assessments, Ms. Vicki Press, on the topic on 21 January 2015.

As background, Koala (combined populations of Queensland, New South Wales and the Australian Capital Territory) were listed as Vulnerable under the EPBC Act on 2 May 2012. Since the listing of the species, there have been three referral guidelines released on the matter. There was the Interim Koala Referral Advice (released in June 2012), the Draft EPBC Act Referral Guidelines (released in December 2013) and now the EPBC Act Referral Guidelines for the Vulnerable Koala (December 2014). It is noted that the new guideline is not a statutory instrument, yet it is used by DoE in referral assessment.

In our view, the new guideline is very similar to the former Draft Referral Guidelines. In that, assessment focus on koala habitat and the habitat assessment tool are generally unchanged. What the new guidelines do however, is provide greater clarity around DoE’s view of what constitutes ‘habitat critical to the survival’ and ‘important populations’ (of koala), provide more detailed definitions of terms used through the assessment process and provide a clearer indication of the ‘weighting’ that DoE will give to particular koala impact mitigation design measures.

A theme that comes through in the new guideline is for the EPBC Act assessment process to focus on larger areas of habitat likely to be important for long term survival / recovery of koala. We understand that the intent is for State and Local government planning processes to manage impacts on koala concerning smaller parcels of habitat. In this way, DoE expect that fewer projects will require EPBC Act approval for impacts on koala.

Key changes between the Draft Referral Guideline and the new guideline include:

  • Greater alignment with State and Local Government definitions and assessment processes;
  • Further detail on the level of habitat clearing likely to be deemed by DoE as significant;
  • Greater detail around survey design expectations;
  • Clarification of use of inputs in applying the ‘habitat assessment tool’ to a project;
  • Clarifies that DoE does not consider koala translocation as an effective impact mitigation measure; and
  • Specifies that DoE won’t consider offsets at referral stage. Rather, mitigation measures around reducing the

impact of development on site are a focus area at initial stages.

A few general points, taken straight from the new guidelines that may be of interest to those planning and managing projects are as follows:

  • The loss of 20 hectares or more of high quality habitat critical to the survival (habitat score of ≥ 8) is highly likely to have a significant impact for the purposes of the EPBC Act;
  • The loss of two hectares or less of marginal quality habitat critical to the survival (habitat score of 5) is highly unlikely to have a significant impact on the koala for the purposes of the EPBC Act;
  • The loss of between 2 and 20 ha of habitat critical to the survival may have a significant impact on the koala for the purposes of the EPBC Act. Whether this is more likely or unlikely depends on the characteristics of your action; and
  • Urban areas are not likely to contain habitat critical to the survival of the koala, as the existing effects of habitat loss, fragmentation, vehicle strike, dog attack and other threats are likely to continue to degrade these areas over the medium to long-term. These existing threats are best addressed by local remedial action, rather than through regulation under the EPBC Act.

As a general ‘heads up’, be aware that DoE has implemented a cost recovery for assessment of referrals process (for referrals made after 1 October 2014). This means that it is no longer free to have an EPBC Act referral assessed. To the contrary, assessment now can be fairly costly, starting with an application fee of $7352 (subject to the nature of the proposal) and in addition to this the cost of assessment (based on hours required to assess application) is passed on to the proponent. In the interest of cost reduction, it is all the more important that referral documentation is as comprehensive and ‘easy to assess’ as possible.

Looking to the future, DoE is in the process of finalising the National Koala Conservation Strategy and is developing the National Koala Recovery Plan in collaboration with State and Territory agencies. On this basis, we could expect to see another version of the koala referral guidelines in the not too distant future upon completion of the Recovery Plan in particular. Further, at a Queensland level, the implementation of the Bilateral Agreement between the Federal Government and Queensland will likely bring change as we start to see Queensland policy and assessment processes accredited under the EPBC Act.

The new guideline can currently be accessed at – http://www.environment.gov.au/biodiversity/threatened/publications/epbc-act-referral-guidelines-vulnerable-koala

Please don’t hesitate to give me a call should you require further detail.

Regards

Nelson Wills

Pieces of the Puzzle – Additions to the Queensland Offsets Framework

The Queensland Government enacted amendments to the Queensland Environmental Offsets Framework (the ‘Framework’) on 19 December 2014. This made for some riveting pool-side reading over the holidays!

The amendments are significant as they include a revised Environmental Offsets Regulation 2014 and further information as to the implementation of the Framework to projects. This blog is intended as a general overview on the tools that are now available which may be of assistance to project managers and technical practitioners. This blog is general in nature and should not be construed as project or situation-specific advice.

Amendments and additions to the Framework are summarised as:

  • Revisions to the Environmental Offsets Regulation 2014;
  • New version of the Queensland Environmental Offsets Policy (version 1.1, dated 19 December 2014);
  • Amendments to the Financial Settlement Offsets Calculator and associated web-based calculator;
  • Introduction of tools to guide proponents in designing their own land-based offset proposition, namely the ‘Guide to Determining Terrestrial Habitat Quality’ and the associated ‘Habitat Quality Scoring Template’; and
  • Introduction of Significant Impact Guidelines.

Each of the amendments and additions listed above are briefly discussed in the following. We note that components of the Framework can currently be found at the following Queensland Government website http://www.qld.gov.au/environment/pollution/management/offsets/.

Revisions to the Environmental Offsets Regulation

The enactment of the Environmental Offsets Regulation 2014 on 19 December 2014 brings into force those provisions of the Environment Protection and Other Legislation Amendment Act 2014 (‘EPOLA Act’) that relate to the Environmental Offsets Act 2014 and Environmental Offsets Regulation 2014. Refer to our blog on EPOLA Act for an overview of some of these introductions (https://www.newground.com.au/resources/update-queensland-offsets-framework/).

New Version of Queensland Environmental Offsets Policy

Version 1.1 of the Queensland Environmental Offsets Policy (‘QEOP’) was released on 19 December 2014 (http://www.ehp.qld.gov.au/assets/documents/pollution/management/offsets/offsets-policyv1-1.pdf). The QEOP clarifies the State’s intent for the delivery of aquatic and the terrestrial offsets. From a practical perspective, the QEOP provides technical detail around State Government expectations for offsets, offset staging and calculation of financial settlement offset contributions. A few key points which may be of interest in project planning are:

  • The QEOP is primarily concerned with offsets for Matters of State Environmental Significance (MSES). While it does describe mechanisms to avoid offset duplication across levels of government, it does not replace the Commonwealth Government’s environmental offsets policy nor those of Local Governments.
  • An offset may only be imposed when a Prescribed Activity is expected to have a Significant Residual Impact on a Prescribed Environmental Matter as determined through reference to a State, Local or Commonwealth Government significant impact guideline.
  • Reference to technical tools outlining requirements for Land-based Offsets, namely introduction of a habitat quality assessment process via the methodology described by EHP’s recently released Guide to Determining Terrestrial Habitat Quality. This Guide is to be used in concert with the Land-based Offsets Multiplier Calculator as a method of determining environmental equivalence between the impact site and offset proposition.
  • A greater focus on offset delivery by Local Governments including more prescriptive requirements for offset placement. Priority is placed upon delivery of offsets within a Strategic Offset Investment Corridor or within the local government area of disturbance.
  • Local Governments can use their own habitat assessment and environmental equivalence calculator tools to determine environmental offset requirements where the offset pertains to a Significant Residual Impact on a Matter of Local Environmental Significance (MLES). However, QEOP caps the MLES offset to impact area ratio at a maximum of 4:1.
  • Koala offsets are generally required to consist of 3 koala habitat tree plantings for each non juvenile tree removed. The Policy outlines locational requirements for the placement of koala offsets in South East Queensland which generally ties an offset site into the same local government area of the impact site. Further, emphasis is placed on offset placement within high or medium value areas suitable for rehabilitation habitat as defined by the South East Queensland Koala Conservation State Planning Regulatory Provisions. Parameters for placement of koala offsets are not as prescriptive in areas of Queensland that are outside of the SEQ region.
  • For those that choose not to find their own offset proposition, the current version of the Financial Settlement Offset Methodology caps the financial settlement contribution for koala habitat in SEQ at $250,000/ha.
  • Amendments to the Financial Settlement Offset Methodology are presented in Appendix 4 of QEOP, which discount administration fees and reduce cost for smaller impact areas. In that, an administrative cost floor price of $50,000 has been introduced for impacts over 2.5 hectares. However, the administrative cost will not be applied for impacts on areas less than 2.5 ha.  At the other end of the spectrum, the upper cap for the administrative cost is $1,000,000.
  • It is noted that local government is able to determine financial settlement amount using their own methodology provided that the amount does not exceed that derived from the Financial Settlement Offset Methodology.
  • ‘Pre-packaged’ Direct Benefit Management Plan offset options are presented by the Policy. A DBMP relates to a management action that benefits the environmental matter of concern and can account for up to 10% of a total offset requirement where the offset relates to a site that is not a Protected Area. Generally, a DBMP cannot be used as part of a koala offset package.
  • Process for staged delivery of offsets in line with stages of a Prescribed Activity is outlined.
  • Particular offset requirements for impacts within Protected Areas are presented. In summary, offset ratios are much higher in these areas (generally 10:1).
  • Detail is provided around requirements for self-administered codes of compliance which can be used by government departments and government-owned corporations.

Significant Residual Impact Guideline

The Significant Residual Impact Guideline was introduced on 19 December 2014 and is a key tool in determining whether State Government offsets apply to a project. This is the case as the Environmental Offsets Act 2014 only allows an administering authority to impose an offset where a prescribed activity is to have a significant residual impact on a prescribed environmental matter after all reasonable attempts are made to avoid and mitigate impacts. The Guideline pertains to MSES only.

The Guideline presents impact thresholds for MSES and themes including:

  • Regulated vegetation (of concern and endangered regional ecosystems). Significant Residual Impact thresholds based on clearing width/area.
  • Connectivity areas. Thresholds based on change in remnant extent at local scale post impact.
  • Prescribed wetlands and watercourses. Thresholds based on nature of hydrogeological, ecological, hydrological and landform change.
  • Protected Wildlife Habitat. Concerned with ‘Essential Habitat’, ‘high risk areas’ on flora survey trigger map, areas of habitat for endangered, vulnerable or special least concern animals and areas containing endangered or vulnerable plants. Significant Residual Impact thresholds based on the nature of impacts on the life history of the given species.
  • Koala habitat in SEQ. Concerned with any area which contains or is known to contain koalas within SEQ. Removal of a non-juvenile koala habitat tree generally constitutes a significant residual impact on this matter.
  • Protected Areas. Thresholds are based around with clearing, inundation, exclusion of public use and reduction of natural or cultural values within a national park, regional park or nature refuge.
  • Fish Habitat Areas and Highly Protected Zones of State Marine Parks. A series of exempt activities, such as public works, are listed by the Guideline. All other actions with a footprint of 40m2or greater generally constitute a Significant Residual Impact on this matter.
  • Waterway providing for fish passage. Relates to waterways (other than areas of these within urban areas) where an activity is expected to limit fish passage. Thresholds are based on impacts of barriers to passage.
  • Marine Plants. In summary, private and public infrastructure works impacting greater than 17m2 and 25m2 respectively of fish habitat (marine plants) will generally form a significant residual impact on this matter.
  • Legally Secured Offset Areas. This relates to impacts on declared environmental offset areas and whether the proposed impact is consistent with its declaration as an offset.

Of note is that the Significant Impact Guideline states that rehabilitation works on an impact site can negate a requirement for an offset or contribute toward an offset requirement.

In Conclusion

The new additions to the Framework provide project proponents with greater certainty around offset triggers, obligations and delivery mechanisms. With this greater certainty comes a higher level of prescriptivism when it comes to the perceived value of an offset proposition and its location, size and technical nature.

While there are many similarities between the Queensland Government’s offset framework and that of the Commonwealth Government, there are stark differences between the two. Namely, the Commonwealth does not tend to focus on the use of local government boundaries in offset location selection nor does it tend to be as prescriptive around how an offset is delivered. Further, offset ratios for the same matter can be different between the two frameworks.

We suggest that our clients and project partners look closely at the level of proposed project impact in deciding whether an offset is required. Further, when planning an offset, it is important to consider the requirements of all levels of government from whom you need an approval. Finally, while a financial settlement contribution offset may be convenient, it may be more cost effective to design your own offset package.

Please don’t hesitate to give me call should you want further information.

Nelson Wills (07 5575 7308).

Re-classification of Queensland Threat-listed Species

The Nature Conservation (Wildlife) Amendment Regulation (No. 2) 2014 (‘Amendment Regulation’) was published on 12 December 2014. The Amendment Regulation presents a suite of amendments to the Nature Conservation (Wildlife) Regulation 2014 which are primarily concerned with the re-classification of near threatened and threat-listed flora and fauna under the Nature Conservation Act 1992. We note that these revisions do not directly affect the conservation status of flora and fauna species under the CommonwealthEnvironment Protection and Biodiversity Conservation Act 1999.

Species conservation status re-classifications concerning 81 species of plants and 69 species of animals were undertaken following a review by the Species Technical Committee. The former and current conservation status of each of the re-classified species is displayed on the Department of Environment and Heritage (DEHP) website (http://www.ehp.qld.gov.au/wildlife/threatened-species/changes-additions-december-2014.html). The decision criteria for assigning a conservation status under the Nature Conservation Act 1992 are also presented within the aforementioned webpage.

In summary, the majority of reclassifications involve the ‘downgrading’ of the protection status of species. Many of these going from a ‘Near Threatened’ to a ‘Least Concern’ conservation status pursuant to theNature Conservation Act 1992.

These reclassifications will have an impact on a number development proposals and development approval conditions, including conditions concerning the provision of environmental offsets.  Please don’t hesitate to give me call should you want to explore how your project is affected.

Nelson Wills (5575 7308)

Update on the Queensland Offsets Framework

02 December 2014

The Queensland Environmental Offsets Framework (the ‘Framework’) came into force on 1 July 2014, enacting a new set of requirements for environmental offsetting in Queensland. The Framework broadly consists of the Environmental Offsets Act 2014 (‘Offsets Act’), the Environmental Offsets Regulation 2014and the Queensland Environmental Offsets Policy (‘offsets policy/the policy’). Since enactment of the Framework, the Queensland Government has been engaging with industry to collect feedback around aspects of the Framework that warrant clarification or improvement. Accordingly, refinements have recently been made to the Offsets Act (as at 7 November 2014) as presented within the Environment Protection and Other Legislation Amendment Act 2014 (‘EPOLA Act’). It is noted that while some parts of the EPOLA Act are currently in force, those parts relating to Offsets are yet to be commenced (by proclamation).

This blog provides a summarised overview of our interpretation and opinions with respect to selected ‘incoming’ refinements to the Offsets Act as presented by the EPOLA Act (at the time of writing). This blog is general in nature and should not be used as a substitute for legal or specialist development planning advice!

1.1       What’s new?

The EPOLA Act seeks to vary/clarify the application of the Offsets Act to development applications and existing approvals in several ways. In the following, we have summarised those clarifications that we expect to be of particular interest to practitioners that are in the process of applying the Framework to their project.

»  Removed the ability for a State agency to impose an offset condition where another State agency has imposed an offset condition concerning the same or substantially the same action (prescribed activity (PA)) and the same or substantially the same environmental matter (prescribed environmental matter (PEM)).

»  A State or Local government administering authority cannot impose an offset condition that relates to a substantially the same or similar environmental matter that has been assessed by the Commonwealth as part of a controlled action. This applies irrespective of a Commonwealth decision to impose an offset condition or not.

»  Notwithstanding the point above, where the offset condition relates to a Protected Area (e.g. nature refuges and regional parks), the State government may impose an offset even if the Commonwealth has decided not to.

»  A Commonwealth assessment that results in a ‘not a controlled action’ decision, does not restrict Local or State Government from imposing an offset condition on the same or substantially similar environmental matter.

»  Local Government may only impose an offset condition on a development approval (authority) for a matter of local environmental significance (MLES) or another prescribed environmental matter that is further prescribed by regulation as relevant. Here we note that neither the Offsets Act nor the EPOLA Act clearly define MLES.

»  The EPOLA Act clarifies the circumstances under which an offset condition ‘stops applying’ in the event that there is an existing offset condition (relating to the same/substantially similar PEM and PA). In short, an authority holder can apply to have an authority amended to remove duplicate offset conditions. Accordingly, a State or Local government offset condition does not apply where a duplicate Commonwealth offset condition is imposed (except when the impact is on a protected area). Similarly, a Local Government offset condition does not apply where a duplicate State condition is imposed.

»  An authority holder can apply for an amendment (of an existing authority) to allow for the implementation of an environmental offset in accordance with the environmental offsets policy or to remove an offset requirement that relates to; an environmental value that is not a PEM under the Offsets Act or an impact on a PEM that is not a significant residual impact. The administering agency must decide the application within 20 business days from receipt of application.

»  An offset delivery arrangement (‘early arrangement’) may now be agreed before an authority is granted. In the event that there is a change in the way the PA is to be conducted (resulting in a change to impact), the administering agency has ten business days (after the authority is granted) to notify the authority holder of any required amendment to the early arrangement.

1.2       What next?

We expect that the Framework will continue to be refined as industry and Government identify further opportunities for its improvement.  In the shorter term, the provisions of the EPOLA Act relating to the Offsets Act are expected to be commenced over the coming months. In addition, it is likely that we will see amendments to the Environmental Offsets Policy and the Environmental Offsets Regulation 2014 as they are brought further into line with EPOLA Act and the Offsets Act. It is anticipated that the environmental values to which the term ‘Matters of Local Environmental Significance’ pertains will be more clearly defined as the volume of projects that are applied to the Framework increases. Finally, we understand that technical guidelines relating to the implementation of the Framework are being finalised by Government.

We appreciate that environmental offsetting is a complex matter! Please don’t hesitate to give me call should you want to bounce any questions around.

Nelson Wills (5575 7308)

Update on Queensland’s Protected Plants Framework

10 September 2014

This blog provides our interpretation, at the time of writing, around what the Protected Plants Framework means to projects in Queensland and some general considerations for applying it to a project. As many of you will be aware the Queensland Government’s protected plant regulatory framework has undergone some fairly major changes and as of 31 March 2014 a new framework was introduced for the protection of plants under the Nature Conservation Act 1992 (NC Act). The new protected plants regulatory framework was established with the intent of offering a simpler, streamlined and more effective way of managing impacts on protected plants. It has now been several months since the introduction of the new framework so we thought it opportune to look at how components of the framework are working ‘on the ground’ and to provide an update on further changes that have occurred since its introduction. In addition, we present some changes that are expected to occur. The focus of our ‘on the ground’ learnings is based on New Ground’s involvement with many flora surveys undertaken in line with the recently released flora survey guidelines.

Before we delve into the updates the following section provides a recap of the changes that were introduced on 31 March 2014 as part of the protected plants legislative framework.

Summary – key changes to the protected plants framework

  • A Protected Plants Flora Survey Trigger Map (‘trigger map’) was introduced that shows high risk areas for protected plants. This mapping is used to determine flora survey and clearing permit requirements for a particular location.
  • If a proposed clearing event occurs in a ‘high risk area’ as presented on the trigger map, a flora survey in accordance with the Flora Survey Guideline- Protected Plants is generally required. The exception to this may occur if a clearing permit exemption is applicable to the particular activity requiring the clearing.
  • Clearing of least concern plants is generally exempt from requiring a clearing permit if located in a low risk area.
  • If a proposed clearing event is located in a high risk area (as per ‘trigger map’) a clearing permit is required for the clearing of endangered, vulnerable and near threatened plants (‘EVNT plants’). If the impact can be avoided or the flora survey identifies that no EVNT plants are present, the clearing would be exempt from requiring a clearing permit.
  • If the proposed clearing is to occur outside of a high risk area, a clearing permit would only be required if EVNT plants are known to occur in that area.
  • When a clearing permit is granted it now authorises the clearing of the land, whereas previously the focus was on the clearing of a specific species. This removes the need to undertake further reassessments during clearing if additional EVNT plants are encountered.
  • The period that an associated clearing permit remains current has increased from six months to two years.
  • Regular repeat clearing or maintenance clearing is permitted for a period of 10 years from the original date of authorised clearing. This is applicable to an actual clearing permit and/or a clearing permit exemption.
  • When making a clearing permit application a lodgement fee of $2587 is now applicable.

Is the guideline set in stone?

After a casual first perusal of the flora survey guidelines the reader may be left with a sense that the requirements of the guideline are overly prescriptive, however with further scrutiny of the document there are a number avenues to pursue variation to the survey methodology. New Ground has had success in obtaining EHP approval to digress from the ‘prescribed methodology’ in circumstances where project or site conditions demonstrably warrant a customised approach. Digressions that are detailed within the guideline range from minor amendments such as varying the area of survey (defined as the clearing impact area within the guideline) to proposing an entirely different methodology for undertaking protected flora surveys.

Areas for refinement/clarification?

In addition to the option of varying some elements of the survey methodology there may also be benefit in clarifying some of the specific details of the guideline itself. New Ground has noted that there may be considerable variance in how two people may interpret the requirements of the guideline. An overly cautious interpretation may result in flora surveys recording field data at a level of detail that is not actually required to be in accordance with the guideline, or was not the intent of the guideline. Alternatively, a less cautious approach may result in a non-compliant survey that may ultimately cause expensive project delays. New Ground’s approach to remove the risk of over and/or non- compliance is to actively engage with EHP to seek solutions which resonate with specific client-project needs. A few examples of areas within the guideline that may benefit from refinement and/or clarification are shown below:

  • The guideline has a requirement to undertake a minimum of two timed meander surveys for areas less than 10 hectares. In many instances, particularly if surveying a relatively small area, the inherent nature of Timed Meander Survey (preferred survey methodology detailed in the guideline) means you would likely cover every square centimetre of the site with just one meander, essentially making the second meander superfluous.
  • The requirement within the guideline to survey distinct areas of habitat does warrant further clarification, for example the interpretation of habitat could be very wide ranging and in many cases proponents may take the overly cautious view and delineate habitat to a finer scale than is intended.

New Ground has been encouraged by EHP’s collaborative approach to the implementation of the framework and in resolving areas of uncertainty such as those noted above.

Updates and upcoming changes since the introduction of the new framework

As many of you will agree we have been in a period of rapid reform from an environmental legislation point of view. To manage risk and optimise opportunities in relation to your project, it’s pertinent to keep a close eye on this change. Relating to the subject of this blog, a few recent changes as well as pending changes, are summarised below:

  • Protected Plants assessment guideline – To assist those involved in a project that may require the disturbance of protected plants, the Protected Plants Assessment Guidelines has been produced. This guideline details each of the steps and considerations relating to the disturbance of protected plants. From a statutory point of view the guideline came into effect on 23 May 2014. The guideline is available on the EHP website
  • Protected Plants Flora Survey Trigger Map revisions – The Queensland Government’s Species Technical Committee (STC) reassessed the conservation status of certain protected plant species under the Nature Conservation (Wildlife) Regulation 2006. On 9 May 2014 a number of EVNT plants were reclassified to least concern plant species. Associated with these reclassifications, the flora survey trigger map was also updated to reflect these changes, in many cases this removed the requirements to undertake flora surveys in accordance with the guideline.
  • Review of the flora survey guideline – This review is scheduled to occur in September 2014. It is assumed that the feedback and discussion provided by practitioners such as New Ground will be considered during any subsequent changes to the guideline. We hope the revised guideline will seek to iron out any of the uncertainty that the first version contained.
  • Future Protected Plants Flora Survey Trigger map revisions – There has been a stated commitment by the Queensland Government to update the flora trigger map at least every 12 months. However, there are provisions in the framework for updates to be made on a more frequent basis. These updates could be on the basis that the reclassification of a plant species (to least concern status) results in an area no longer being high risk area on the trigger map. Alternatively new records of EVNT plants reported to EHP would require the expansion of the high risk areas within the flora survey trigger maps. The key message here is to expect change and ensure that current Protected Plants Flora Survey Trigger mapping is reviewed frequently throughout the lifecycle of a project that involves disturbance of vegetation.

Feel free to give me a call should you require additional information Dr. Dan Rollinson (07 5575 7308)

This is information emanating from our interpretation of the framework. It should not be interpreted as a definitive interpretation or opinion.

Ecological Planning Reform Quick Guide

Recent amendments to environmental planning policy and legislation have resulted in a variety changes to the level of ecological constraint and opportunity for a variety development projects and development sites throughout Queensland. Our Ecological Planning Reform Quick Guide is a targeted review of selected ecological planning reforms that may impact upon our clients and project partners generally.

The Guide is here, along with a series of podcast interviews with keynote speakers from the UDIA Queensland Spotlight on Offsets.

Applying the Queensland Offsets Framework to your Project

9 July 2014

The Queensland Environmental Offsets Framework (‘The Framework’) came into force on 1 July 2014, enacting a new set of requirements for environmental offsetting in Queensland. The Framework broadly consists of the Environmental Offsets Act 2014 (‘Offsets Act’), the Environmental Offsets Regulation 2014and the Queensland Environmental Offsets Policy (‘offsets policy/the policy’).

The Framework introduces a more streamlined approach to offsetting requirements, through amalgamation of the five predecessor State government offsets policies into one policy. Further, it reduces duplication of offset requirements by restricting an administering authority from imposing offset conditions where the Commonwealth Government has imposed (or decided not to impose) a condition concerning the same (or substantially similar) prescribed environmental matter. Similarly, a local government administering authority is restricted from imposing an offset requirement for a prescribed environmental matter that has been addressed by a State government condition. This does not however prevent the potential for offsets to be required across the three levels of government for impacts on features deemed as distinct prescribed environmental matters.

This blog provides our interpretation, at the time of writing, around what the framework means to projects in Queensland and some general considerations for applying it to a project.

1.1 Which projects does the framework apply to?

The Offsets Act sets out a common statutory basis for the application of offset conditions to development approvals granted under other acts/instruments, such as:

  • Sustainable Planning Act 2009 (SP Act) (for example, land development or extractive industry projects which trigger assessment against the State Development Assessment Provisions);
  • South East Queensland Koala Conservation State Planning Regulatory Provisions (Koala SPRP) (for example, reconfiguration of a lot within a Priority Koala Assessable Development Area or Koala Assessable Development Area);
  • State Planning Policy 2013 (Part E Interim Development Assessment Provisions) (for example, assessment of a extractive industry or land development proposal where the subject planning scheme has not been revised to reflect the provisions of the State Planning Policy);
  • Environmental Protection Act 1994 (EP Act) (for example, Chapter 5 activities including mining and petroleum and gas projects);
  • Nature Conservation Act 1992 (NC Act) (for example, protected flora clearing permits and activities within some protected areas);
  • Fisheries Act 1994 (for example, some approvals for removal of marine plants); and
  • Marine Parks Act 2004 (for example, some development activities that interact with marine parks).

It is noted that the Offsets Act does not affect the powers of the Co-ordinator General under the State Development and Public Works Organisation Act 1971.

1.2 When does my project trigger an offset condition?

What calls up an offset?

A key change brought about by The Framework is the reduction in the extent of circumstances that call up an offset. In that, an offset condition may only be imposed to mitigate a ‘significant residual impact’ of a ‘prescribed activity’ on a ‘prescribed environmental matter’.

A significant residual impact is defined by the Offsets Act as; an adverse impact, whether direct or indirect, of a prescribed activity on all or part of a prescribed environmental matter that –

  • remains, or will or is likely to remain (whether temporarily or permanently) despite on-site mitigation measures for the prescribed activity; and
  • is, or will or is likely to be, significant.

The offsets policy makes reference to a ‘significant residual impact test’, it is expected that further detail around this in the form of a guideline made available by the Queensland Department of Environment and Heritage Protection (EHP) in the coming weeks. It is noted that in the case of staged offsets, the full extent of potential project impacts (on prescribed environmental matters) across all project stages must be applied to the significant residual impact test.

A prescribed environmental matter is summarised as:

  • a matter of national environmental significance (MNES) – matters subject to approval under theEnvironment Protection and Biodiversity Conservation Act 1999 (EPBC Act);
  • a matter of state environmental significance (MSES) – matters subject to approval under State legislation; or
  • a matter of local environmental significance (MLES) – matters subject to approval under a local planning scheme or policy.

A prescribed activity is defined by the Offsets Act as an activity:

  • the subject of an authority under another Act; and
  • for which an offset condition may be imposed under the other Act on the authority; and
  • that is prescribed under a regulation.

What if my project has been approved or is currently under assessment?

The new framework does not force retrospective assessment of offsetting activities that were approved prior to 1 July 2014. The offsets policy does however introduce transitional provisions which are summarised as follows according to the given scenario:

Scenario 1 – Applications made but decision stage not commenced/recommenced prior to enactment of the new offsetting framework (1July 2014)

Offset conditions being considered/applied through development assessment under the SP Act

  • the new offset policy may be applied when agreed by both the concurrence agency/assessment manager and authority holder.

Offset conditions being considered/applied through development assessment under other legislation

  • the new offset policy may be applied when agreed by both the administering agency and authority holder.
  • notwithstanding the point above, it is important to confirm that the legislation under which your application is being decided allows for the new policy to be taken into account.

Scenario 2 – Amending approval conditions to allow for consideration of new offsets policy

An authority (approval) that was decided prior to 1 July 2014 under the SP Act, EP Act or NC Act (e.g. pertaining to protected plant clearing permit) may be re-considered to take the new offset policy into account.

  • Namely, authorities pertaining to prescribed environmentally relevant activities and resource activities may be reconsidered under section 224 of EP Act and approvals granted under SP Act may be reconsidered pursuant to sections 367 and 369 of SP Act.

Scenario 3 – Amending approval conditions to reflect change to scope of works

Where an authority holder requests an amendment to an existing authority or seeks a new authority (which relates to an existing activity), the new offsets policy is relevant only to any significant impacts on prescribed environmental matters associated with the new scope.

1.3 Options for delivery

The Framework allows for offsets to take the form of one or, in many instances as a combination of the following three delivery options:

  1. Financial settlement offset – a ‘pay and go’ option whereby offset cost is determined in accordance with the EHP Financial Settlement Offset Calculation Methodology;
  2. Proponent-driven offset – a proponent-prepared offset package primarily consisting of ‘land-based offsets’ with no more than 10% of total offset requirement being mitigated via a ‘Direct Benefit Management Plan’ (DBMP);
  • Land-based offset – Land-based offsets are to meet requirements of the EHP Land-based Offsets Multiplier Calculator. Habitat quality for impact and offset sites is to be determined via rapid assessment (habitat quality factors pre-determined by EHP) or via alternative habitat factor scores through the undertaking of a habitat quality analysis in accordance with the EHPGuide to Determining Terrestrial Habitat Quality. It is noted that local government can apply an alternative habitat quality analysis process.
  • Direct Benefit Management Plan (DBMP) – a type of offset which offers conservation gains via priority management actions that address threats to the prescribed environmental matter that is subject to the given offset condition (this option not applicable to Koala SPRP offsets).

3. Combination of financial settlement and proponent-driven offset.

1.4 What if I’ve got koala habitat to offset?

Koala habitat offsets that are triggered by the Koala SPRP are treated uniquely to other prescribed environmental matters.  In that:

  • DBMPs are not applicable to Koala SPRP offsets;
  • Three new koala habitat trees must be established for every one non-juvenile tree removed;
  • Offset plantings must be in the same local government area as impact site unless impact site occurs in the Koala Coast defined area or within the Pine Rivers area; and
  • Offset is to occur within an area mapped as medium or high value suitable rehabilitation habitat as priority. If this is not available, offset to occur within an area mapped as low value suitable rehabilitation habitat. Enhancement of designated bushland habitat may also be considered.

It should be noted that a requirement for koala offsets may be triggered in areas that are outside of Koala SPRP affected areas. For example, at state level, proposed disturbance of ‘Essential Habitat’ (for koala) may trigger koala offsets under the NC Act. The current State government offset options for proponents here are:

  • Three new koala habitat trees must be established for every one non-juvenile tree removed; and
  • Land-based offset pursuant to the Land-based Offsets Multiplier Calculator tool and the Guide to Determining Terrestrial Habitat Quality.

It should also be noted that, in some instances impacts on koala habitat could constitute a prescribed environmental matter at national level (MNES), while not constituting Matter of State Environmental Significance (MSES) or a Matter of Local Environmental Significance (MLES). The EPBC Act environmental offsets policy may be applicable in such cases.

Reduction of Ecological ‘Red Tape’ On the Cards

On 20 March 2013, the Queensland Government revealed proposed amendments to vegetation management laws (via the Vegetation Management Framework Amendment Bill 2013) that will reduce the level of ecological constraint over many properties. Further, provisions to allow for the creation of self-assessable codes for routine management activities such as thinning and weed and pest management were introduced. One of the key reforms proposed under the Bill is the removal of high value regrowth on freehold and indigenous land which would exclude State Government regulation of high value regrowth clearing in most circumstances. In addition, State-wide vegetation mapping is proposed to be streamlined under the Bill. The refined mapping system would allow for vegetation community boundaries to be ‘locked in’, providing landholders with greater surety when it comes to long term property development planning.

The Bill has been referred to the parliamentary State Development, Infrastructure and Industry Committee for public consultation. The Committee is to provide their report to Parliament by 14 May 2013. If passed through Parliament, the proposed amendments are expected to come into effect towards the end of 2013. The Parliamentary Committee is seeking submissions on the proposed amendments to the vegetation management framework. For more information on the amendments or details on how to make a submission, visit http://www.nrm.qld.gov.au/vegetation/vegetation-management.html

For detail on how this reform would relate to your project or property, please don’t hesitate to contact Nelson Wills at New Ground.

Biodiversity

Part A: Biodiversity Risk Management:

Biodiversity is not a buzz word us ecologist use to sound smart, it is in fact an important factor in environmental management and our own life processes. Biodiversity is basically the diversity of life and their interactions.

Unfortunately, the reality is, to study the biodiversity of a region in its entirety you would need a life time of research. Therefore in order to gain the best understanding within a limited time frame you can target your research. The most commonly applied research is to target threatened flora, fauna, populations, communities and ecosystems. By getting a better understanding of the rarer species, or communities within a region means the most vulnerable can be better managed and researched further. This is essentially biodiversity risk management.

Within Australia, there is relatively little known about many of our unique threatened species. By applying best practice risk management and target research allows us to not only increase the understanding of the threatened species or community, but this also leads into the ability to develop management options to suit all biodiversity aspects interrelated with them. Managing the more rare species often also manages the more common species and communities. As time goes on, a better picture is painted of each threatened species or community (and associated common species/communities).

Part B: Threatened Species:

Threatened Species is a term used for a variety of flora and fauna species that are listed under legislation. They can be grouped into a range of categories, depending on the level of legislation and are a measure of a species becoming extinct in the wild within a specific time period. Under the Queensland Nature Conservation Act Regulation for example, the listed threatened species are in the following categories:

* extinct in the wild;
* endangered;
* vulnerable;
* near threatened and
* of least concern.

These categories are based on current knowledge of a species abundance, distribution and levels of threat in the wild. Within Queensland there are about 1300 threatened plants and animals, 30 being extinct. But why list a species? And what might the threats be?

It is important to list a species as threatened when the accumulated variety of threats, reduced or fragmented distribution and/or overall low species abundance reach a point that may impact on the species viable survival in the wild. Once a species is listed as threatened, it provides a greater level of protection and added management practices for the species. Knowing the level of listing will dictate the level of management and outcomes for the species, but their added protecting also can help conserve more common species that can interact with the threatened species.

Threats to wildlife can be gradual or have more instant effects and can include:

* Habitat destruction and change;
* Introduced species predation, competition, diseases and habitat degradation;
* Exploitation such as illegal trade; and
* Pollution.

Next time you go out, you will likely see many common things, but sometimes these are linked to threatened species. For example, head to the coast and walk through the wildflower heaths, and think about the threatened wallum froglet that maybe there and reliant on the acid soils/water, or those flowering mistletoes west of the great divide that are breeding and feeding sources for the painted honeyeater. Remember nature and biodiversity is all linked, which in the end is linked back to our own health and wellbeing and if we affect those relationships too much and not manage them effectively you will see it start to affect our lives. That is why it is important to develop sound legislative frameworks for threatened species and to improve our understanding and management of our biodiversity, especially the rarer species.

Threatened species:

http://www.derm.qld.gov.au/wildlife-ecosystems/wildlife/threatened_plants_and_animals/index.html

Biodiversity:

http://australianmuseum.net.au/Biodiversity/

Threatened species and biodiversity:

http://www.environment.gov.au/biodiversity/

The wallum froglet (crinia tinnula) is here http://frogs.org.au/frogs/species/Crinia/tinnula/

And a link for the painted honeyeater use:

http://www.birdsinbackyards.net/species/Grantiella-picta

Environmental Liveability

One key area of interest is the re-evaluation of how open space is used within cites. Historically the incorporation of predominately manicured (associated with high maintenance cost) green space within communities has been the standard approach aimed at providing residents with areas to undertake passive recreation. More recently there has been a shift to incorporating some natural features within urban and suburban communities; however these are often poorly planned and can result in a host of negative outcomes such as the introduction of inappropriate flora species and the attraction of nuisance fauna species.

The use of open/green space to achieve both positive ecological outcomes and to improve environmental liveability is a relatively new school of thought and somewhat of a paradigm shift from the traditional approach to open space planning. Historically Australian’s would tend to view natural areas as those within National parks.

New EPBC Referral Guideline for Koala

The combined koala (Phascolarctos cinereus) populations of Queensland (Qld), New South Wales (NSW) and the Australian Capital Territory (ACT) were listed as a vulnerable species by the Federal Government under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) on 2 May 2012. Shortly thereafter, the Department of Sustainability, Environment, Water, Population and Communities (now Department of Environment (DoE)), released Interim koala referral advice for proponents. On 3 December 2013, DoE released the Draft EPBC Act referral guidelines for the vulnerable koala (combined populations of Queensland, New South Wales and the Australian Capital Territory) (‘Draft Guidelines’) as a proposed successor to the aforementioned 2012 referral advice guideline. It is emphasised that the Draft Guidelines are valid from 3 December 2013, however are open for public comment until 7 February 2014. This article touches on the changes that arise from the Draft Guidelines and how these could affect development in Queensland.

Reminiscent of the ‘shock-wave’ that enveloped Queensland’s development industry following the release of the referral advice guidelines in June 2012, the Draft Guidelines have heightened concerns around the viability of greenfield development projects in Queensland. Such concerns and uncertainty have arisen from an apparent change in DoE’s assessment focus; from impacts on an ‘important population’ of the listed species to impacts on stands of potential habitat greater than 2 hectares.

To briefly explain the concept above, the koala listing was made on the basis of a part-range designation, in that, the combined populations of Qld, NSW and ACT are treated as a single designatable unit and it is this unit that is deemed a ‘species’ for the purposes of the EPBC Act. This is an unusual situation as, for the vast majority of EPBC Act species listings, individuals are the designatable species. Given the nature of the koala listing, a commonly-held interpretation is that assessment of ‘significant impact’ and whether habitat is ‘critical to the survival of the listed species’ should be based on impacts on the combined population of koala. However, the Draft Guideline does not appear to lead assessment in this way.

The Draft Guidelines focus on assessment of significant impacts on koala through the assessment of habitat critical to the survival of the listed species and the impact of the given action on the recovery of the koala. As a result, they do not provide guidance for assessment of impact on important populations of koala. This may be viewed as a shortcoming of the guideline, given that DOE’s Significant Impact Guidelines require a proponent to consider the impact of their action at population level (‘important population’) in determining whether it is likely to constitute a significant impact (and hence trigger referral to DoE). As a result, it is likely that a greater number of projects will be identified as referrable than was the case under the previous interim referral advice and several of these will probably not offer a significant impact to an important population.

Despite the disconnect between the significant impact test of the Significant Impact Guidelines and the Draft Guideline’s lack of emphasis on defining impacts on important populations; the draft guideline gives a proponent greater surety as to whether their activity will require referral to DoE. This is achieved via the provision of a koala habitat assessment tool and flow chart for assessment of adverse effects of habitat.

A challenge for industry and regulators alike will be around keeping the development industry viable while managing our interactions with koala. DoE is expected to publicise outcomes of Draft Guideline comment period following 7 February 2014.