Changes to CKPOM in response to legal advice

BYRON SHIRE COUNCIL

13.14 - Attachment 4

Changes to the CKPOM in response to legal advice – June 2015

1. Section 7.1 Application

This section has been amended to remove reference to development involving subdivision of land into three lots. This has made it directly consistent with clause 6 (land to which the policy applies) of SEPP44.

2. Potential koala habitat

SEPP44 defines potential koala habitat as areas of native vegetation where the trees of the types listed in Schedule 2 constitute at least 15% of the total number of trees in the upper or lower strata of the tree component.

The draft Byron CKPOM used a definition the same or similar as the definition used in CKPOM’s adopted or drafted by other Councils including Lismore, Kempsey, Ballina, Tweed and Bellingen, Richmond Valley and Gunnedah LGA’s. Table 1 shows the definitions used in the post exhibition draft Byron CKPOM, a comment on their compliance with the definition of ‘potential koala habitat’ used in SEPP44 and required amendment.

Table 1 Amendments to definitions in draft Byron CKPOM

Habitat category	Post exhibition draft	Compliance with SEPP44 definition of potential koala habitat.	Changes
Primary Habitat	means areas of forest and/or woodland wherein primary food tree species comprise the dominant or co-dominant (i.e ≥50%) overstorey tree species.	Consistent with ‘potential habitat’ in SEPP44.	No change required
Secondary (Class A) Habitat	means areas of forest and/or woodland wherein primary koala food tree species are present but not dominant or co-dominant and usually (but not always) growing in association with one or more secondary food tree species.	Consistency with SEPP44 likely for most areas however would require clarification via site specific assessment to determine ‘potential habitat’ at a property scale.	means areas of forest and/or woodland wherein: primary koala food tree species form 15-50% of the overstorey tree species; or primary and secondary food tree species combine to form ≥15% of the overstorey tree species
Secondary (Class B) Habitat	means areas of forest and/or woodland wherein primary food trees species are absent, habitat containing secondary and/ or supplementary food tree species.	Consistency with SEPP44 likely for most areas however would require clarification via site specific assessment to determine at a property scale.	means areas of forest and/or woodland wherein primary food trees species are absent and secondary food tree species form ≥15% of the overstorey tree species.

3. Koala Habitat mapping

As part of Stage 1 of the current vegetation mapping review koala habitat mapping has also been updated. The revised koala habitat maps were exhibited for a period of 6 weeks in March – April 2015. The exhibition included a mail out to all residents in the study area living on rural land and select urban areas with larger blocks or containing high conservation value vegetation. A total of 54 submissions were received and further field work and site assessments were undertaken to inform amendments to the draft mapping.

The updated fine scale vegetation mapping provides up to date and more accurate information to assist in the identification of koala habitat based on vegetation classification and floristic composition and abundance of preferred koala feed trees. The 2015 koala habitat mapping is based on both Council’s vegetation mapping and the findings of the Koala Habitat Study, which identified preferred koala food trees in the Byron coastal area. It is considered that this mapping provides provisional koala habitat mapping to identify potential koala habitat based on floristic composition and presence of preferred koala feed trees.

Details of the habitat maps are discussed in Section 5.2 and Appendix 4 of the amended CKPOM.

4. Core koala habitat

In response to the legal advice the definition of core koala habitat has been amended to remove the second sentence as shown below:

an area of land with a resident population of koalas, evidenced by attributes such as breeding females (that is, females with young) and recent sightings of and historical records of a population. For the purposes of this Plan core koala habitat includes Preferred Koala Habitat within a Koala Management Precinct, or any other area identified as core koala habitat, demonstrated through completion of a Koala Activity Assessment Report consistent with the requirements of Section 7.3.3.

Section 6.3 Core Koala Habitat which appeared in the Koala Management Framework section of the previous draft has been removed.

5. Development assessment requirements and flowchart

The Development Assessment flowchart has been significantly changed to ensure consistency with clause 7 and 8 of SEPP44. The flowchart now mirrors clause 7 & 8 in terms of identifying potential and core koala habitat and it is only once core koala habitat has been identified that the reporting requirements and development standards are triggered. This change will ensure the CKPOM is compliant with SEPP44.

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b

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6. Koala Management Precincts

Previous confidential legal advice received in March 2014 during the public exhibition of the draft CKPOM supported the use of Koala Management Precincts as their application is consistent with SEPP44 (Report Attachment 5). The Koala Management Precincts remain unchanged in draft Byron CKPOM.

Consistent with Part 4 Clause 15 (a) of SEPP44 Council completed the Byron Coast Koala Habitat Study. This study used a range of standardised and rigorous koala habitat survey techniques in order to identify the location of resident koala populations. These techniques included:

1. a historic records analysis of 1,471 koala sighting records which was used to identify areas where koalas had been recorded over 3 or more koala generations (18 years), which demonstrates generational persistence evidence of a long term breeding population (see Part 2 of the Byron Coast Koala Habitat Study)

2. systematic field surveys using a standard koala survey technique which is used by agencies at a federal, state and local government level (see part 3 of the Byron Coast Koala Habitat Study)

The combination of these results from the Koala Habitat Study has been used to inform the location of Koala Management Precincts (KMP) in the draft Byron CKPOM which encompass the location of resident koala populations. Identified potential koala habitat within KMP’s are considered to meet the definition of ‘core koala habitat’ within SEPP44. This approach is being used in CKPoM’s for Tweed, Ballina and Bellingen LGA’s.

The identification of core koala habitat through a KMP not only provides an evidence based, landscape scale approach to koala conservation it also provides significant advantages for landholders. Under this model landowners within a KMP are not required to undertake their own costly onsite assessment to satisfy clause 8 of SEPP44 or prepare an individual KPOM, if they comply with the development standards, which for most development types are likely to be easily achievable.

If Koala Management Precincts were not used all development applications on land containing potential koala habitat would be required to undertake an assessment to determine if the land is core koala habitat, as has been carried out as part of the Habitat Study. This will result in an increase in the assessment and reporting requirements for applicants, and increase the associated costs and also reduce strategic, landscape scale approach the CKPOM takes.

7. Koala Assessment reports

Amendments have been made to Section 12.2 Koala Habitat Assessment Reports so they are only required when Council is satisfied that the land contains core koala habitat. The minor and large development types have been retained so as to reduce the assessment and reporting requirements for minor development types such as dwelling houses, alterations and additions, and dual occupancy. Further details on the assessment and reporting requirements for large development has been included in this section.

8. Development Standards

The Development Standards section of the CKPOM (Part 2) has been redrafted and now only applies to areas identified as core koala habitat. Development standards have been separated into minor development and large developments with the standards reflecting the likely impacts of each development types.

9. Compensation Ratios

The compensation ratios used to determine the number of replacement trees required following vegetation removal has been reduced. A range of ratios has now been applied (depending on the vegetation location and size) from 1:6 for small non koala food trees up to a maximum of 1:30 (reduced from 1:50) for loss of koala food trees >500mm diameter at breast height.

10. Habitat buffers and Koala corridors

The legal advice comments on the use of the terms ‘habitat buffers’ and ‘koala corridors’ suggesting the use of such terms would have no effect in the context of applying the provisions of SEPP44.

In the draft Byron CKPOM these terms were not used to apply the provisions, as development located within a habitat buffer or koala corridor did not in itself trigger the provisions of the draft Byron CKPOM. These terms were included in Part 6 Koala Management Framework. Corridors are included in the CKPOM in accordance with the DoPE Circular No. B35 (referred to in Clause 10 of SEPP 44 (Report Attachment 6), advice received in response to Clause 12 (Report Attachment 7).

The definition of koala corridor has been amended and these have been distinguished as components of the existing wildlife corridors which have been adopted by Council in the Byron Biodiversity Conservation Strategy.

11. Local Environment Plan

Amendments have been made to Section 5.5.1 so the LEP clause and overlay will only identify potential koala habitat, and not koala corridors and buffers.