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HG Alert: South East Queensland Koala State Planning Provisions - 20 Nov 2009

Over the past 12 months, there has been a complex and layered response from the State Government to planning policy for koala conservation. Further changes introduced earlier this month will have a significant impact on the development of land within South East Queensland.

Background

In December 2008, the State Government released the Draft South East Queensland Koala Regulatory Provisions. These draft regulatory provisions made the Environmental Protection Agency a referral agency for particular material changes of use, reconfiguration of lots and operational work in a koala conservation area or koala sustainability area. For an in-depth analysis and critique of the these provisions, please see “Conserving South-East Queensland’s Koalas”.

On 1 July 2009, the South East Queensland Koala State Planning Regulatory Provisions took effect and replaced those draft provisions released in December 2008. The State Planning Regulatory Provisions incorporated changes to the draft regulatory provisions following consultation with conservation groups, local government and the development industry. For more details, please see “Conserving our Koalas: South-East Queensland Koala State Planning Regulatory Provisions”.

New koala planning provisions

On 2 November 2009, the State Government released:

  • the draft South East Queensland Koala State Planning Regulatory Provisions, which replace the State Planning Regulatory Provisions and introduce a moratorium on the clearing of mature koala habitat trees across a significant portion of South East Queensland.
  • an exposure draft of the Proposed South East Queensland Koala Proposed Conservation State Planning Regulatory Provisions, which we understand are to be introduced in December 2009 as a draft for consultation, and will replace the Draft Regulatory Provisions when released. These proposed provisions will substantially regulate new development in koala habitat.

The State Government is inviting submissions from stakeholders on two issues:

  1. The moratorium on clearing vegetation, part of the draft Regulatory Provisions. Submissions close on 24 December 2009.
  2. The Biodiversity Development Offset Area Policy, which is part of the Proposed Conservation State Planning Regulatory Provisions. Submissions close on 1 December 2009.

Submissions have not yet been sought for the balance of the Proposed Conservation State Planning Regulatory Provisions. However, because we understand that they will take effect once a draft is formally released for consideration later this year, we suggest that thought be given to making submissions, especially in respect of the associated mapping to the Proposed Conservation State Planning Regulatory Provisions, given the ramifications of the provisions.

This Alert outlines the major changes brought about by the introduction of the moratorium on the clearing of mature koala habitat trees, and discusses the significance of the biodiversity development offset area policy that will be introduced in December 2009.

The moratorium - draft Regulatory Provisions

Division 1 of the draft Regulatory Provisions provides a list of circumstances to which they do not apply, including:

  • development carried out under an effective development approval for a development application that was properly made before the draft Regulatory Provisions; and
  • development ‘consistent with’ an effective preliminary approval under section 3.1.6 of the Integrated Planning Act 1997 (that is, a preliminary approval varying the effect of a local planning instrument) where the development application for preliminary approval was properly made before the draft Regulatory Provisions commenced.

The exemptions also extend to particular rezoning approvals where the resulting zone has been “preserved” by a transitional planning scheme, development application (superseded planning scheme) or Integrated Planning Act planning scheme, and to development that is declared to be a significant project, or in a State development area, under the State Development and Public Works Act 1971.

Under the draft Regulatory Provisions, development is effectively divided into two categories:

  • development within the prohibited koala bushland habitat area; and
  • development in an interim koala habitat protection area.

Division 2 introduces a moratorium on clearing mature habitat koala trees and applies to development within the protected koala bushland habitat area. Protected koala bushland area means an area shown as a protected koala bushland habitat area on the maps mentioned in schedule 1 numbered SEQKH 1 to SEQKH 32. This mapping is extensive and captures land inside the urban footprint, and the scale of the mapping seeks to achieve a prohibition of broad scale clearing. Table 1 applies to all development in the protected koala bushland habitat area.

Table 1: Development in the protected Koala bushland habitat area

Column1
Assessable development not requiring assessment under this draft SPRP

Column 2
Development that may not occur

  1. Development for a private residence on an existing lot.
  2. Development on premises that will result in:
    a) a gross floor area of no more than 500m2 ; and
    b) the clearing of no more than 2500m of native vegitation; and
    c) the excavation or filing of an area no more than 5000m2 ; and
    d) no loss of mature Koala habitat trees.
  3. Reconfiguring a lot that will not result in the creation of an additonal lot.
  4. Development for community infrastructure on state government land.

Development not identified in column 1

 

 

 

 

 



Development contained in column 1, as defined under section 1.3.2 of Integrated Planning Act 1997, does not require assessment under the draft Regulatory Provisions. Column 1 is largely self explanatory, with schedule 2 providing definitions for ‘mature koala habitat tree’ and ‘private residence’. It should be noted that item 3 contemplates that reconfiguration of a lot is confined to permanent boundary realignment and amalgamation of lots. Development contained in column 2 - all development not identified in column 1 - is contrary to the draft Regulatory Provisions and may not occur. In other words, in any prohibited koala bushland habitat area, the draft Regulatory Provisions effectively bring about a prohibition on any broad scale clearing.

The trigger for the application of the draft Regulatory Provisions in an interim koala habitat protection area under division 3, table 2, is an application for material change of use, reconfiguration of a lot or operational works. The interim koala habitat area is identified in the mapping contained in schedule 1. Development contained in column 1 does not require assessment under the draft Regulatory Provisions and is largely self explanatory. Assessable development set out in column 2 must show that development in an interim koala habitat protection area does not adversely affect movement of koalas through a koala movement corridor. Schedule 3 states that this requires an assessment of whether there is any connectivity value for koala movement through the landscape, including movement within and between areas of intact bushland habitat. In effect, demonstrating that column 2 is satisfied will likely require extensive investigation and reporting by qualified koala and ecological experts.

If a development is found to have an adverse affect on the movement of koalas through a koala movement corridor as set out in column 2, it must meet the following criteria set out in column 3:

  1. be consistent with the proposed biodiversity outcomes in a planning scheme for the premises;
  2. maximise opportunities for safe koala movement through its design and layout; and
  3. offset the loss of mature koala habitat trees by replanting koala habitat at a rate of one tree for every one metre height of tree lost, either on-site, or if this is not possible, off-site.

Proposed Conservation State Planning Regulatory Provisions

Division 1.4 of the Proposed Conservation State Planning Regulatory Provisions provides a list of circumstances to which they do not apply, including:

  • development that is outside the South East Queensland Koala Protection Area;
  • development that is inside the South East Queensland Koala Protection Area if it is:
    -  carried out under an effective development approval for a development application that was properly made before the Proposed Conservation State Planning Regulatory Provisions commenced; and
    -  ‘consistent with’ an effective preliminary approval under section 3.1.6 of the Integrated Planning Act 1997 (that is, a preliminary approval varying the effect of a local planning instrument) where the development application for preliminary approval was properly made before Proposed Conservation State Planning Regulatory Provisions commenced.

The exemptions also extend to particular rezoning approvals (where the resulting zone has been “preserved” by a transitional planning scheme, development application (superseded planning scheme or Integrated Planning Act planning scheme), and to development that is declared to be a significant project, or in a State development area, under the State Development and Public Works Act 1971.

The mapping relevant in respect of division 2 (material change of use and reconfiguring a lot) and division 3 (operational work) categorises land into three categories: KPA1, KPA2 and KPA3.

Significantly material change of use, reconfiguration of a lot and operational works (other than a few specific exemptions) may not occur in an area mapped as KPA1 for the purposes of an urban activity (excluding rural residential activities), which is generally defined by the Proposed Conservation State Planning Regulatory Provisions to mean residential, industrial, retail or commercial activity.

In the event land is mapped as KPA 2 or KPA 3, it must comply with schedule 3 of the Conservation State Planning Regulatory Provisions. Demonstrating that development complies with schedule 3 will be difficult for land owners and developers, and will likely require extensive investigation and reporting by qualified koala and ecological experts.

Development will comply with schedule 3 in the event that it meets the requirements in the code contained in annexure 1. Schedule 3 also provides that acceptable circumstances for not fully complying with schedule 3 are where the proposed development provides for an overriding need in the public interest in accordance with the following factors:

  • The applicant for the development can establish:
    -  an overall social, economic and environmental benefit of the development would outlay any detrimental effect;
    -  that the development can not be located elsewhere to avoid conflicting with the requirements of annexure 1.
  • The following do not establish an overriding need in the public interest:
    -  uses requiring relatively few locational requirements to function;
    -  interest in or options over a site; and
    -  site availability or ownership.

Division 4 of the proposed Koala Conservation State Planning Regulatory Provisions introduces a new policy, namely the Biodiversity Development Offset Areas (known as BDOAs). Division 4 outlines a process to be applied to preserve areas where high koala conservation values are under threat from development. The provision seeks to redirect that development pressure to more suitable areas, predominantly outside of the urban footprint, with low or no koala conservation value.

Division 4.1 of the proposed Conservation State Planning Regulatory Provisions states that the regulatory provisions of the South East Queensland Regional Plan 2009-2031 do not apply to development if the property is an approved BDOA.

To view the mapping for the Proposed Conservation State Planning Regulatory Provisions, please visit the Department of Infrastructure and Planning’s website.

For more information or assistance in drafting submissions to the State Government, please contact HopgoodGanim’s Planning and Development Team.