Legal Insights

Watch out for drop bears! What does the Koala Protection SEPP actually do?

Patrick Ibbotson

• 11 September 2020 • 6 min read

The main operative provisions restrict a council from granting development consent.

The SEPP applies to local government areas listed in schedule 1 of the SEPP. The controls apply to three categories of land:

Category	Control
Land where there is a koala plan of management in place	A council determining a development application must make a determination consistent with the koala plan of management.
Land which: is identified on the Koala Development Application Map has an area of at least 1 hectare there is no koala plan of management in place	A council determining a development application must take into account either: the requirements of the Guideline^[1] information^[2] demonstrating that: the land does not include any trees belonging to the feed tree species^[3], or the land is not core koala habitat.
Land where the policy applies but the land is: not identified on the Koala Development Application Map not subject to a plan of management and not core koala habitat.	Council is not constrained.

Category

Control

Land where there is a koala plan of management in place

A council determining a development application must make a determination consistent with the koala plan of management.

Land which:

is identified on the Koala Development Application Map
has an area of at least 1 hectare
there is no koala plan of management in place

A council determining a development application must take into account either:

the requirements of the Guideline^[1]
information^[2] demonstrating that:
- the land does not include any trees belonging to the feed tree species^[3], or
- the land is not core koala habitat.

Land where the policy applies but the land is:

not identified on the Koala Development Application Map
not subject to a plan of management and
not core koala habitat.

Council is not constrained.

Notably the SEPP does not constrain:

works and land uses that do not require development consent – which is likely to include many rural land uses on existing farms and which would extend to works and activities that are ancillary to the farming use
existing uses
local land services when authorising clearing under the Local Land Services Act 2013
development for which the Council is not the consent authority^[4]
state significant development^[5]
regionally significant development^[6]
state significant infrastructure
assessment of activities under part 5.1

Koala plans of management need to be prepared by the Council and subject to consultation, devolving this to the local communities subject to the applicable guidelines. Where there is no koala plan of management the real constraint is where the following are true:

development consent is required
the Council is the consent authority
it is not possible to show there are no feed trees
it is not possible to show the land is not core koala habitat
the land is identified on the Koala Development Application Map
more than 1Ha is involved
there is no koala plan of management.

In that situation it will be necessary to assess the development in accordance with the Guidelines.

The Guidelines require categorisation of development as either:

tier 1 – low or no impact development
tier 2 – development applications impacting koalas or habitat

Tier 1 development is development which can be demonstrated to have low or no direct impact on koalas or koala habitat as follows:

indirect impacts that will not result in clearing of native vegetation within koala habitat
the development is below the Biodiversity Offsets Scheme threshold under the Biodiversity Conservation Act 2016
there is no native vegetation removed
the development footprint will not impede movement between koala habitat
adequate mitigation measures such as those listed in Table 1 in the Guideline are implemented as necessary.

Tier 1 development can obtain consent subject to implementing management measures such as are specified in Table 1 or similar measures in a Development Control Plan.

Tier 2 development is likely to impact koalas and/or koala habitat and does not meet the criteria for Tier 1. Tier 2 development must address the criteria against each of the seven planning principles set out in part 3.2 of the Guideline.

How might the SEPP apply to some example developments?

Use	Application of SEPP
Grazing or cropping on existing cleared farmland	Does not normally need development consent.
Building a shed	Would often be exempt development so no consent is required. If not exempt and consent is required and the land the subject of the application is more than 1Ha then will likely be tier 1 development under the guideline.
Clearing land for farming	Does not normally require development consent for farms on rural land. Approvals under the Local Land Services Act are not development consent. If consent is required then SEPP will apply
Fencing	Does not normally require development consent. If consent is required then SEPP will apply.
Subdivision of land for residential development	Normally need consent and the SEPP will apply.

^{[1] Koala Habitat Protection Guideline prepared by the Department of Planning, Industry and Environment, approved by the Planning Secretary}
^{[2] Prepared by a suitably qualified and experienced person in accordance with the Guideline, provided by the applicant to the council}^{[3] Listed in Schedule 2 for the relevant koala management area}^{[4] Where there is a local planning panel the panel exercises the function of the council and so references to the Council would include the panel}^{[5] The Independent Planning Commission or the Minister is the consent authority}^{[6] The Sydney district or regional planning panel is the consent authority}