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New Koala Regulation For South East Queensland Now In Effect

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The Nature Conservation and Other Legislation (Koala Protection) Amendment Regulation commenced on 7 February 2020 and amends the Environmental Offsets Regulation 2014, Planning Regulation 2017, Nature Conservation (Koala) Conservation Plan 2017 and Vegetation Management Regulation 2012 to introduce a new environmental planning framework which applies to development and its interaction with koala habitat areas in South East Queensland. This blog sets out to provide a generalised overview of the key mechanisms of the new framework relating to land development in South East Queensland.

The framework introduces new designations, namely ‘Koala Priority Areas’ (‘KPAs’) and ‘Koala Habitat Areas’ (‘KHAs’) (replacing former Koala SPP habitat and Koala SPRP mapping). ‘Koala Broad-Hectare Areas’ (KBHA) have been carried forward and consist of areas with established development commitments (including declared master planned areas). Property-scale mapping is now available to identify whether a site is designated as within a KPA or KBHA and whether it is designated as hosting KHA. Mapping can be accessed at https://www.qld.gov.au/environment/land/management/vegetation/maps/map-request. Here it is noted that there is a map correction process available should a landholder wish to contend mapping. The mapping forms the basis for koala regulation development assessment triggers. Summary of triggers/prohibitions:

  • Clearing of KHA in a KPA is now prohibited development.
  • Development within a KPA that does not propose clearing of KHA will trigger Local Government assessment against a revised Schedule 11 of Planning Regulation 2017 (Planning Reg). We note that such projects may also be subject to assessment against any additional koala planning provisions of the given planning scheme.
  • Schedule 11 of the Planning Regulation contains assessment benchmarks specific to KBHAs. These will apply to development that is assessable under a planning scheme or reconfiguration of a lot under the Land Title Act.
  • Development outside of a KPA that proposes clearing of KHA will trigger State Government assessment against a new State Code (State Code 25).

Exemptions from Development Prohibition in KPA involving KHA clearing

The revised schedule 10, Part 10 of the Planning Reg states that prohibitions concerning development within a KPA that involves interfering with KHA do not apply to the extent the development is –

(a) is exempted development (refer to schedule 24 of Planning Reg); or

(b) is assessable development under section 16C; or

(c) is in an identified koala broad-hectare area and is—

(i) accepted development, or assessable development, under a local categorising instrument, other than development that is for an extractive industry and is not assessable development under section 16C; or

(ii) reconfiguring a lot that is assessable development under part 14, division 1, section 21; or

(d) is carried out under a development permit given for an application that was properly made before 7 February 2020; or

(e) is consistent with a development approval—

(i) in effect for the premises on which the development is carried out; and

(ii) given for an application that was properly made before 7 February 2020

Exemptions from Assessment Against State Code 25 (applies to Development involving clearing of KHA outside of KPA)

The revised schedule 10, Part 10 of the Planning Reg describes that regulation (i.e. State Code 25) concerning development outside of the KPA that involves interfering with KHA does not apply to the extent the development is –

(a) is exempted development (refer to schedule 24 of Planning Reg); or

(b) is assessable development under section 16C; or

(c) is in an identified koala broad-hectare area and is—

(i) accepted development, or assessable development, under a local categorising instrument, other than development that is for an extractive industry and is not assessable development under section 16C; or

(ii) reconfiguring a lot that is assessable development under part 14, division 1, section 21; or

(d) is carried out under a development permit given for an application that was properly made before 7 February 2020; or

(e) is consistent with a development approval—

(i) in effect for the premises on which the development is carried out; and

(ii) given for an application that was properly made before 7 February 2020.

Exemptions from Assessment Against Schedule 11 of the Planning Reg (Development within KPA not involving clearing of KHA)

Development exempt from Schedule 11 assessment benchmarks includes projects where:

  • the chief executive is the prescribed assessment manager for the development application; or
  • the development is for a coordinated project; or
  • the development is in a State development area; or
  • the development is in the area of a development control plan that the old Act, section 857 applies to; or
  • the development is for infrastructure stated in schedule 5 and is carried out by or for the State or a public sector entity; or
  • the development is PDA-related
  • the development results in a development footprint of 500m2 or less; or the development is carried out under a development permit given for an application that was properly made before 7 February 2020; or
  • the development is consistent with a development approval—
    • in effect for the premises on which the development is carried out; and
    • given for an application that was properly made before 7 February 2020.

An overview of the Schedule 11 Assessment Benchmarks (applies to assessable development in KPA not proposing to clear KHA)

Projects will be assessed against Schedule 11 of the Planning Reg by the relevant local Council. Some of the key environmental planning considerations of the Schedule 11 assessment benchmarks are:

  • Benchmark 1a – Development will be required to demonstrate that it provides for safe koala movement both within a KHA on the development site and between KHAs or ecological corridors that are within 200 m of each other. It is likely that restrictions will apply concerning removal of vegetation that is between KHAs. In addition, restoration of corridors to facilitate movement may be required in some circumstances.
  • Benchmark 1b – A default 50 m buffer is to be applied between development and KHA. An alternative buffer/treatment can be proposed provided that this is accepted as technically justified.
  • Benchmarks specific to identified koala broad-hectare areas (KBHA) are presented by Schedule 11. These include a safe koala movement benchmark (consistent with intent of benchmark 1a described above) as well as benchmarks requiring that clearing and construction works accord with a Koala Management Plan which addresses clearing requirements of the Nature Conservation (Koala) Conservation Plan 2017.

An overview of State Code 25 (applies to assessable development outside KPA proposing to clear KHA)

State Code 25 consists of six (6) performance outcomes (PO1-PO6). A short overview of these is as follows:

  • PO 1 requires that a development proposal demonstrates that it has attempted to avoid and minimise impacts upon KHA. A response to this PO will be required to include a review of options considered (to minimise clearing of KHA) and justification for the proposed disturbance footprint. In addition, the response will need to demonstrate that clearing impacts (on koalas, koala habitat areas and koala habitat values) have been mitigated. Accordingly, it is likely that some proposals to clear KHA outside of a KPA will be refused.
  • PO2 is concerned with avoidance of fragmentation of KHAs. This will likely carry requirements to avoid clearing vegetation that links KHA patches and corridors that are <200 m apart as well as requirements to restore corridors/movement conduits.
  • PO3 is centred around ‘koala friendly design’ to provide for safe koala movement (particularly between KHA patches that are <200m apart) throughout the given development site and surrounds. This could include specific design expectations for infrastructure such as fences and roads. Here it is noted that a revised Koala-sensitive Design Guideline: A guide to koala sensitive design measures for planning development activities (DES, 2020) was released today with the new koala regulation framework.
  • PO4 outlines koala protection expectations for construction and clearing works, drawing on the sequential clearing provisions of the Nature Conservation (Koala) Conservation Plan 2017.
  • PO5 is concerned with the use of environmental offsets to mitigate impacts upon koala habitat. Pertinent aspects of this item are that an ‘avoid, mitigate, offset’ hierarchy applies. Accordingly, an offset will not be supported unless efforts to avoid and mitigate are accepted. Offset requirements will be based on the effort required to mitigate significant residual impacts (of development) to an acceptable level. The Queensland Environmental Offsets Policy outlines criteria for determining whether an activity poses a significant residual impact on koala habitat areas. In short, removal of a non-juvenile koala habitat tree constitutes a significant impact. A few additional comments on environmental offsets and koala are presented in the respective heading below.
  • PO6 outlines impact avoidance and minimisation requirements specific to category C and category R vegetation. This PO exists because category C and R vegetation cannot be offset under the Queensland Environmental Offsets Framework. Accordingly, a project must demonstrate that impacts have been avoided, minimised and mitigated to the greatest extent possible without drawing on an offset to assist in impact mitigation.

Koala Offsets

The current koala regulation framework carries new requirements for koala habitat offsets where triggered by State Code 25 (amongst other potential state triggers). The 3:1 offset ratio outlined by the Queensland Environmental Offsets Policy is unchanged by the new framework. Further, financial settlement and proponent driven (delivered) offsets remain as the main offsetting approach option. However, the new framework provides more specific requirements around where a State Government koala offset is to be located. In particular, the preference is for offset to be located within a mapped ‘restoration area’ (a new koala habitat mapping category) in the next closest (to impact) KPA. There is scope however to deliver offsets in a ‘restoration area’ that is outside of a KPA or to deliver an offset that improves connectivity between koala habitat or KPAs if the preference is not achievable. Of note is that offsets under the new framework are to be delivered in the same local government area as the impact.

For more details go to https://environment.des.qld.gov.au/wildlife/animals/living-with/koalas/mapping/legislation-policy#document_availability

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