Environmental Law and Policy relating to Koalas

Transcription

1 Environmental Law and Policy relating to Koalas Brendan Dobbie, Solicitor 2 July 2017

2 Outline Strategic planning and koalas Development assessment processes The new Biodiversity Conservation Act Having Your Say Legal options

3 Strategic planning and koalas

4 SEPPs and LEPs Each local government area has a local environmental plan Controls land use through zones Development permissible without consent Development permissible with consent Prohibited development SEPP 44 (Koala Habitat Protection) Council responsible for satisfying itself as to whether land is core koala habitat Plan of Management required for core koala habitat Council must determine development applications consistently with the Plan of Management

5 SEPP 44 koala habitat protection Is the land potential core koala habitat? Yes No Is the land core koala habitat? Development consent can be granted Yes No Is the development consistent with the Plan of Management? No Yes Development consent cannot be granted

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7 Commenting on SEPPs and LEPs LEPs New LEPs or amendments must pass through the Gateway Process Planning Proposal not a draft LEP Community consultation requirements set by the Gateway 28 days for Principal LEPs 14 days for amending LEPs May be a public hearing Environmental studies are not required unless Gateway certificate says so SEPPs SEPPs are made by the Governor on recommendation of Planning Minister Public consultation is at discretion of Minister Secretary of Planning must consult Chief Executive of OEH if threatened species likely to be adversely affected

8 Review of SEPP 44 DoPE recently reviewed SEPP 44 Explanation of Intended Effect was on public exhibition from 18 November 2016 through 03 March 2017 The key changes relate to the: definitions of koala habitat; list of tree species; list of councils; and development assessment process. The Department is reviewing the submissions and feedback received. It will publish updates on the Department of Planning and Environment s website as the review progresses at: planspolicies.planning.nsw.gov.au Subscribe to Departments newsletter for regular updates from the Department

9 Finding out about changes to the LEP LEP tracker ov.au/ Search by local government area. EDO e-bulletin contains weekly alerts

10 Development assessment and koalas

11 Local development Exempt and complying development Must be permissible with or without consent in the zone. Must meet Codes SEPP (exempt and complying development codes) 2008 Complying development must be certified. Neighbours have a right to be notified but not to comment Private certifier or council certified Local development Must be permissible with consent Development application required - accompanied by a Statement of Environmental Effects. If in core koala habitat must not be inconsistent with the Plan of Management. Certain development must be advertised/notified and the public given a right to comment (see the DCP) Council is the consent authority unless it goes to IHAP

12 Designated development High impact local development Council is the consent authority Must be accompanied by an EIS Must be publicly notified and exhibited Anyone can make a written submission Objectors have merits appeal rights SEPP 44 applies

13 Finding out about local development Newspaper Postal notification (in some cases) Council s DA tracker ore.nsw.gov.au/

14 State significant development and infrastructure (major projects) SEPP (State and Regional Development) 2011 lists developments that are SSD or SSI Type of development (thresholds) Location of development (nominated sites) Minister for Planning is consent/approval authority delegated this power Department staff (non-controversial) Planning Assessment Commission (controversial) SEPP 44 doesn t apply no need to prepare or be consistent with Plan of Management Many additional approvals either not required or must be granted consistently with the development consent Permit to clear native vegetation not required.

15 Finding out about major projects Major projects search au/ EDO e-bulletin has weekly alerts

16 Assessment process for major projects

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18 NSW Biodiversity Offsets Policy for Major Projects Framework for Biodiversity Assessment (FBA) Calculates when offsets are required Types of offsets Biobanking (like for like but variations possible) Mine site rehabilitation Contributing money for supplementary measures.

19 Commonwealth approvals Koalas are listed under the EPBC Act as vulnerable (combined populations of QLD, NSW and ACT) Activities that will or are likely to have a significant impact on a listed species are controlled actions Controlled actions require Federal Government approval (in addition to any other approval at State level) Approval can be given subject to conditions Proponent must refer the project for approval or Minister can call it in. Image: Friends of the Koala

20 Finding out about referrals and commenting You can comment on matters referred under the EPBC Act You only have 10 days EDO e-bulletin has weekly alerts

21 Concurrence from other agencies Before the application can be approved, concurrence may be required from: Office of Environment and Heritage Potential to affect threatened species, populations or ecological communities Consider contacting these agencies to voice your concerns

22 The new Biodiversity Conservation Act

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24 Refresher Gone Changed New Threatened Species Conservation Act Native Vegetation Act Nature Conservation Trust Act National Parks and Wildlife Act Environmental Planning and Assessment Act Biodiversity Conservation Act Local Land Services Amendment Act

25 Saving our species? Triage approach Koala is listed as a vulnerable species Koala population between the Tweed River and Brunswick River east of the Pacific Highway is listed as endangered population Iconic species management stream Proposed Priorities Action Statement Offences and licences Areas of outstanding biodiversity value

26 Koala Recovery Plan Made under the Threatened Species Conservation Act (repealed) Sets out the conservation requirements of the species across its known range in NSW Being phased out under the Biodiversity Conservation Act New Biodiversity Conservation Program The Program s objectives are to maximise the long-term security of threatened species and threatened ecological communities in nature, and to minimise the impacts of key threatening processes on biodiversity and ecological integrity.

27 Changes to native vegetation management in rural areas

28 Native Vegetation Regulatory Map Blue Exempt Yellow regulated Grey - excluded

29 Land Categories Exempt, regulated, excluded

30 Hierarchy of clearing Allowable activities No approval required Minimum extent necessary Coastal zone, Central zone, Western Zone Code-based No approval required if done in accordance with the code Approval required Native Vegetation Panel Where development consent or SSI approval not required and where the clearing is not part of an activity assessed under Part 5 of EPA Act Requires a biodiversity development assessment report

31 Land Management (Native Vegetation) Code 2017 Aim of the Code: Authorise Clearing on Category 2 Regulated Lands Require Set Aside areas (in perpetuity, runs with the land on a public register) Applies to all Rural Zoned Lands some Crown lands Code does not apply to: Native veg on Category 2 Sensitive Regulated Land (core koala habitat) Native veg on Category 2 Regulated Land Old Growth Forest Native veg that forms a Critically EEC

32 Native Vegetation Panel The Panel is to consist of 3 members appointed by the Minister: 1. a Chairperson, with expertise in planning, public administration or social assessment, 2. a person with expertise in economics, agricultural economics or agricultural land production systems, 3. a person with expertise in ecology or the protection and conservation of biodiversity. The Panel determines applications for approval to clear native vegetation on category 2 (regulated) land where it is for a purpose that does not require development consent

33 Offsets Bio Con Act introduces a new Biodiversity Offsetting Scheme and Biodiversity Assessment Method (BAM). BAM measures loss or gain in native vegetation and habitat loss as biodiversity credits, i.e. offsets (ecological debt?) BAM report required for many NSW development activities: All State Significant Development & Infrastructure affecting threatened species. Local development that meets the BAM threshold: Area of clearing relative to minimum lot size (e.g to 2ha clearing) Any clearing on Sensitive Biodiversity Values Land Map Opt-in only for Part 5 local infrastructure. BAM largely replaces existing threatened species assessments and biodiversity offsetting methods Non-biodiversity impacts: still assessed by existing planning law methods

34 Meeting Offset Scheme obligations Options include, in any combination: a. Retire like-for-like biodiversity credits b. Retire credits under variation rules c. Fund an action [listed in BAM] to benefit species or ecological community impacted d. Mine site rehabilitation e. Pay to the BC Fund instead.

35 Like-for-like rules Offset category Threatened Ecological Communities (TECs) Threatened Species Habitat Species credit species (i.e. Threatened plants & animals not predicted by veg. type/habitat) Like-for-like offsetting rule Same TEC in same subregion (or nearby subregion <100km) Same class* of vegetation in same or nearby subregion *there are 99 veg classes in NSW but ~1500 Plant Community Types Same species, anywhere in NSW (e.g. Koala, Squirrel Glider, all threatened plant species)

36 Variation rules for developers Offset category Vegetation types TECs, Threatened Sp. Habitat, other threatened vegetation Hollow Bearing Trees Species credit plants & animals (i.e. not predicted by vegetation) Variation: if reasonable steps to find likefor-like offsets fail Allowable offsets expanded from same veg. class (99 in NSW) to same formation (16 in NSW) Location rules weakened Can be substituted for artificial hollows a plant for a plant; or an animal for an animal; at equal or higher risk of extinction (in same or nearby subregion) E.g. impacts on koalas can be offset by protecting squirrel gliders

37 Serious and Irreversible impacts Serious and Irreversible impacts on biodiversity values: Must be refused for local projects (Part 4) Are further considerations for major projects (SSD, SSI) and biocertification Are determined in the opinion of consent authority. Reg. sets principles to identify Serious & Irreversible impacts: likely to contribute significantly to the risk of a threatened species or ecological community becoming extinct due to further rapid decline, habitat impacts etc. Guidance to consent authorities applying principles.

38 New Vegetation SEPP What? New State Environmental Planning Policy (SEPP) proposed for tree-clearing. in urban areas and Environmental (E) zones Statewide. Native Veg. Panel or Council will assess clearing application depending on size. Why? Address incremental clearing and fill a regulatory gap : outside Rural zones where the purpose of clearing does not require development consent (e.g. extensive agriculture) When? If clearing exceeds BAM Threshold (clearing size OR sensitive values map): then BAM applies and Native Veg Panel applies LLS Act criteria. If clearing is under BAM Threshold: Council Development Control Plans apply (tree preservation orders)

39 Having your say

40 How do I go about preparing a submission? Read proposal and supporting documents Identify key issues/concerns Clearly set out your concerns and support with facts/evidence Tell the decision maker what you want them to do Submit before deadline or request extension

41 Importance of gathering information Information was key in our issue. We needed to talk to the right people and ask the right questions. Policy and legislation had to be understood, or as best we could. Information from Council, correspondence and file notes in regards to the dealings with the sand mining company were obtained under access to information laws. The AustLII library was helpful in reviewing how the Land and Environment Court had determined other matters involving a sand mining operation. The internet was a valuable resource. I found conference notes posted by some of the government employees which gave insight into what was important to them. Information such as survey maps were obtained from the Historical Society. Basically we had enough information to support our position and have informed conversations with the various officers. - Sue Chivers, Terara resident

42 Information from Government Government and Council websites Informal requests - Freedom of Information Officer Formal requests (fee) Freedom of Information laws (Federal level) GIPA laws (State/local level) Assistance Information and Privacy Commission

43 Information from Parliament Hansard A record of what is said in Parliament intended effect of the law you re referring to Parliamentary Committees and inquiries Various topics Environment, Agriculture and Industry, Rural and Regional Affairs and Transport Great source of information, and opportunity to Have Your Say Questions in Parliament Questions without notice Questions on notice

44 Legal resources and research Legislation and regulations Vast amount of environmental law in NSW and Federally There can be more than one law applying to a situation All Federal and State legislation and regulation is online Case Law Finding a case with similar facts to your own situation can help in understanding how the law is applied Search for key words or cases by name Legal research Legal Information Access Centre Assistance with legal research

45 Evidence gathering It s important to be able to support your claims with evidence photographs and videos collecting physical evidence such as noise and dust monitoring logbooks koala sightings etc. collecting documentation relevant to the issue Legal research Previous assessments for developments on or near the site Image: Michael L. Baird

46 How do I set out my submission? Introduce yourself or your group. What is your background and experience? Explain why are you interested in and how you will be affected by the development, law or policy Give recommendations tell the decision-maker what you want them to do

47 How do I set out my submission? Personalise the submission it s OK to a sign pro forma submission, but ensure you personalise it a bit Talk about how the proposal will affect you your family the environment the local economy existing industry

48 A note on pro-forma submissions Writing submissions is not a popularity contest. Decision-makers will take a good idea from one person over a bad idea from many people every day.pro-forma submissions can be effective at the start of a campaign, for example if you are trying to change the views of politicians so that they understand the depth of feeling across a community that an idea is not supported. However, you need to follow this up by writing your own submission to engage people and tell them what idea would be better. So, pro-forma then written submission. - Tom Grosskopf, Director Metropolitan Branch, Regional Operations, Office of Environment and Heritage

49 Give the decision-maker an alternative It is helpful to council if you can put forward a realistic alternative. For example, say that you are opposed to a development of this scale, and that you would like to see a smaller alternative. Give councillors a way forward that is workable and acceptable. - Simon Clough, Deputy Mayor, Lismore City Council

50 Engage the reader Keep submissions on-topic. Give insights into analysis or experiences from elsewhere that make your case. Point to innovative ideas. Make your submission short and punchy. Get the reader engaged early. Be objective and outcome focussed. Have a civilised and interesting conversation. Include a summary at the top of your submission. Use headings within your submission to structure your argument. Use clear language. One idea per paragraph. Put your idea in the first sentence, then explain it in the rest of the paragraph. Think about your strategy. What will motivate people? - Tom Grosskopf, Director Metropolitan Branch, Regional Operations, Office of Environment and Heritage

51 Back up your argument Offer constructive criticism. Keep to the topic and be concise in your arguments. Council officers sometimes have to sift through hundreds of letters giving feedback. Short, relevant, and timely points of view are appreciated and have a better chance of being prioritised. Earn your right to criticise. This means your arguments need to be validated by good quality research and understanding of the subject area which you seek to influence. Make reference to key documents to support your argument rather than relying on personal opinion or hearsay. - Dr Jenny Scott, Sustainability Program Leader, Ku-ringgai Council

52 What happens after I have made my submission? If it s a development Department or Council provides proponent with submission or summary of submissions Proponent may be asked to respond to submissions The application is assessed Final decision is made If it s a law/policy Submissions are often published online A white paper may be released explaining how submissions were incorporated Bill introduced or policy finalised

53 Appearing before a meeting, panel or inquiry hearing Keep in mind the terms of reference Register your intention to speak beforehand Stick to any time limits Speak clearly and try not to speak too fast Practise beforehand Dress neatly and be on time Image: SIAcademy

54 Legal options

55 Can the decision be challenged in Court? Merit Appeal within 28 days of decision Judicial review within 3 months of decision Civil enforcement if there is non-compliance

56 Judicial Review The Gloucester Gas Project Image: Kate Ausburn

57 Reporting breaches of development consent If you are aware of breaches contact the consent authority Department of Planning Council Other approval body (where relevant) Provide evidence of breach but don t trespass

58 Civil enforcement by community Third parties may be able bring enforcement action if the responsible regulatory authority does not Most environmental laws allow any person to bring an action to remedy or restrain a breach of the Act Always ask government to take action before bringing proceedings You need evidence of breaches Always seek legal advice prior to commencing proceedings. Image: Phillip Spark