Tuesday, 10 November 2020

Concerns Raised By The Intent And Wording Of Local Land Services Amendment (Miscellaneous) Bill 2020

Draft copy of a letter sent as an email by two Clarence Valley residents to 24 members of the Legislative Assembly, so that none of these honourable members can plead ignorance in the future if they pass this piece of environmental vandalism into law.

The letter was not sent to Liberal and Nationals members of the Upper House given it concerns a government bill originally presented to NSW Legislative Assembly by their confederates there and, therefore were thought not inclined to lend an ear to residents from affected regional areas. 

Members of the Legislative Council

Parliament of New South Wales

Macquarie Street

Sydney NSW 2000

8 November 2020


Mark Banasiak MLC, Robert Borsak MLC, Abigail Boyd MLC,

Mark Buttigieg MLC, Anthony D’Adam MLC Greg Donnelly MLC,

Cate Faehrmann MLC, Justin Field MLC, John Graham MLC,

Courtney Houssos MLC, Emma Hurst MLC, Rose Jackson MLC,

Mark Latham MLC, Daniel Mookhey MLC, Tara Moriarty MLC,

Fred Nile MLC, Mark Pearson MLC, Peter Primrose MLC,

Rod Roberts MLC, Adam Searle MLC, Walt Secord MLC,

Penny Sharpe MLC, David Shoebridge MLC, Mick Veitch MLC.

Dear Members,

Re: Local Land Services Amendment (Miscellaneous) Bill 2020

SUMMARY: Passing bad law does not produce good outcomes. It is not in the public interest to extinguish state protection of the Koala from the bulk of public and private land in New South Wales. Neither is it advisable to extinguish on those same lands the protections afforded to persons and native wildlife by other existing state legislation.

On or about 10 September 2020 the media reported that the NSW Parliamentary National Party was strongly opposed to that version of the State Environmental Planning Policy (Koala Habitat Protection) 2019 in force on 3 September 2020.

However, within a matter of weeks an agreement had been reached with the NSW Parliamentary Liberal Party that this state environmental planning policy would be amended to ensure that the policy did not impinge on the rights of farmers “to farm without encumbrance from new koala planning laws”.

This was how changes to NSW koala habitat protection policy was consistently put to the state electorate by government spokespersons at the time.

Indeed, State Environmental Planning Policy (Koala Habitat Protection) 2019 was amended on 16 October 2020.

The amended State Environmental Planning Policy (SEPP):

  • Retains its new commencement date of 1 March 2020;

  • Doesn’t apply to - (b) land dedicated under the Forestry Act 2012 as State forest or a flora reserve. An exemption also contained in the previous 3 September 2020 version of this SEPP;

  • Only applies to 83 named local government areas out of a total of 128 local government areas and to - (a) in the koala management area specified in Schedule 1 opposite the local government area, or (b) if more than 1 koala management area is specified, in each of those koala management areas. Clauses also included in the previous version of this SEPP;

  • Only applies to land classified as core koala habitat which is over 1 hectare in size. This applied to land in the previous version of the SEPP as well;

  • Doesn’t apply to any land on which a development application has already been lodged, as was the case under the previous version of this SEPP;

  • Tightens the definition of core koala habitat so that a higher level of proof is required at this clause - “(a) an area of land which has been assessed by a suitably qualified and experienced person in accordance with the Guideline as being highly suitable koala habitat and where koalas are recorded as being present at the time of assessment of the land as highly suitable koala habitat”;

  • Made more land exempt from its provisions - “(c) land on which biodiversity certification has been conferred, and is in force, under Part 8 of the Biodiversity Conservation Act 2016”;

  • Allows larger buildings or buildings on a different part of a post-bushfire residential lot by repealing - “(b) the replacement dwelling house is within the existing building footprint”.

The NSW Government decided to introduce a separate Bill which sought to go further than the amended SEPP and which the government members of state parliament misrepresented at the time as only removing that SEPP from farmland

This bill, Local Land Services Amendment (Miscellaneous) Bill 2020, seeks:

(I) to remove all local government areas from the protection of State Environmental Planning Policy (Koala Habitat Protection) 2019 with the exception of core koala habita in just 5 of the original 28 local government areas covered by the current version of the SEPP. These are Ballina, Coffs Harbour City, Kempsey, Lismore and Port Stephens;

(ii) to extinguish State Environmental Planning Policy (Koala Habitat Protection) 2019 on all public and private land in the state, with the exception of land within the NSW National Parks estate, declared wilderness areas, dedicated flora reserves, declared heritage land, land declared to have outstanding biodiversity, declared World Heritage properties and, certain dedicated or reserved lots of Crown Land;

(iii) to establish as law clauses in the bill which allow the commercial logging of native trees to continue unimpeded on private land and which extend the life of private forestry agreements to 30 years duration, thereby effectively circumventing a planned government review of the private forestry system;

(iv) such logging on private land to be constrained only by a private forestry plan whose conditions may be altered over time. The NSW Government has decided not to renew the NSW Forest Agreements for the Upper North East, Lower North East and Eden regions lapsed on 4 March 2019.;

(v) to define as “allowable activity land” suitable for native timber clearing as landholding which:

(a) is in an area of the State to which Part 5A applies, and

(b) is or was wholly or partly in a rural land use zone and the whole or part of which has been

rezoned as Zone E2, Zone E3 or Zone E4, and

(c) is used for primary production”.

(vi) to permit clearing of native vegetation for allowable activities specified in Schedule 5A even if there is no approval or other authority for the clearing required by or under another Act or if it is in contravention of a provision of another Act, including the Environmental Planning and Assessment Act 1979 and Biodiversity Conservation Act 2016;

(vii) to allow rural land zoned E2 (Environmental Conservation), E3 (Environmental Management) or E4 (Environmental Living) under an environmental planning instrument to be cleared of native timber, even if all or any sections of such land was previously protected under provisions in Environmental Planning and Assessment Act 1979 or the Biodiversity Conservation Act 2016, provided the land owner/lessee asserts the land will be used for primary purposes; and

(viii) to allow clearing of native vegetation on land to which State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 would normally apply if under this bill such landholding is now classified as “allowable activity land”.

Concerns Raised By The The Intent And Wording Of Local Land Services Amendment (Miscellaneous) Bill 2020

The major concerns can be found in the NSW Parliament’s Legislation Review Committee report of 20 October 2020, which in itself appears to imperfectly understand the impact of logging of native timber on private land:

The Bill seeks to remove several requirements for land owners to obtain development consent under Parts 4 and 5 of the Environmental Planning and Assessment Act 1979 (the EPA Act).

In doing so, the Committee notes that the Bill would remove local councils' ability to assess development applications, engage with relevant neighbour and community stakeholders, and make recommendations regarding the proposed development changes. It may thereby impact on the rights of these stakeholders to participate in such processes and be consulted about issues that may affect them.

[My yellow highlighting]

However, the Committee acknowledges that these changes are to streamline the approval process of private and native forestry clearing for landholders, who are also required to obtain separate approval from Local Land Services. In the second reading speech, the Minister also noted that private native forestry is a low-impact activity occurring rarely on agricultural land and is not a permanent land use change. Under these circumstances, the Committee makes no further comment.”

It is a significant concern that the Local Land Services Amendment (Miscellaneous) Bill 2020 will deprive local councils, ratepayers and residents of the ability to sustainably manage land development in rural and regional New South Wales.

It is noted that the Legislative Review Committee is reporting on the clearing of native timber aspect of the bill without commenting on the extinguishing of State Environmental Planning Policy (Koala Habitat Protection) 2019 on agricultural land and other land on which private forestry agreements exist or are sought.

It is also noted that although the Legislative Review Committee report states that approval for land clearing is required from Local Land Services it is not clear that the Review Committee took into consideration the number of exemptions from its provisions are provided to landholders under the Local Land Services Amendment (Miscellaneous) Bill 2020.

This raises another very significant concern because clearing of such land when it exists within 100 -150 kilometres inland from the NSW coastline will in all probability represent a permanent change in land use.

Land in this area contains the entire estimated range of koala habitat land.

It also contains the bulk of land identified by Forestry NSW as suitable for logging under future private forestry agreements and all the exisiting timber mills in the state.

The land indentified as good logging land on the North Coast stretches for est. 286 kms from Coffs Harbour to the NSW-Qld border and up to 100-135 kms inland.

Extent of harvestable timber on private land and operating timber mills prior to June 2019

It is of some concern in a region where sudden torrential rainfall can occur to note that this map indicates that much of the harvestable timber is on higher sloping land. Given this timber is also spread across thousands of individual holdings this concern is amplified by the ability of Land Services or the Environmental Protection Agency to adequately police the level of land clearing and/or logging the Bill before the Legislative Council appears to allow.

Prior to the devastating bushfires of 2019-2020, the NSW North Coast had a diverse array of forest types and most of the tree cover was estimated to be between >20 to <30 metres and >30 to <40 metres in height across an est. 20,706 square kilometres, according to the NSW Dept. of Primary Industries (DPI).

Extent of forest cover in north-east New South Wales prior to 2019-2020 bushfires

Of the estimated 6.30 million hectares of North Coast forest which was thought to be standing in 2018-19 this is how much was impacted by fire:

Basemap from ArcGIS Online GEEBAM v3.0 (03/02/2020) © State Government of NSW and Department of Planning, Industry and Environment 2020

At least half the forest canopy overall was partially or fully affected in these fire grounds according a NSW Department of Planning, Industry and Environment report.

Mapping of bushfire affected forests and properties prior to these bushfires which had a ‘High’ to ‘Very High’ suitability for timber production are located within the same est. 286 kms long by 100-135kms wide area of north east New South Wales.

It is of great concern that both the depleted forest landscape and what might remains of harvestable timber both occupy the same land area clearly identified as koala habitat.

Joint EPA-Dept. of Industry Forest Science Unit predictive mapping of remaining NSW koala habitat based on sighting records, vegetation, soils and climate.

Koala Habitat

Koala habitat exists across much of North East New South Wales. It is of varying quality and quantity.

Core koala habitat is not consolidated. Pockets of core koala habitat are frequently scattered amongst non-core habitat.

Koalas travel between these core areas – often using non-core habitat as travel routes which supply shelter and feeding opportunities.

In North East New South Wales non-core habitat is also used by koala on a permanent or semi-permanent basis.

Local communities in the Clarence Valley, which is being removed form the protection afforded by the current Koala Habitat Protection SEPP by the proposed Local Land Services Amendment (Miscellaneous) Bill 2020, is a case in point.

Take Iluka on the banks of the Clarence River. It is fringed by and includes within the village area undeveloped open forest in a mix of Crown and private land.

Here are some of koala sighted there in the last 10 years:

Photograph supplied by Iluka resident Gabrielle Barto

Photograph of a koala in search of a tree at Iluka supplied

Another Lower Clarence area where koalas are easily found is the village of Lawrence and here are koalas snapped in 2019:

Photograph of Lawrence koala supplied

Photograph of koala mid-canopy & circled in black supplied

Elsewhere in the Lower Clarence in 2017:

We respectfully ask the twenty-four members of the Legislative Council listed at the top of this letter to consider the provisions of Local Land Services Amendment (Miscellaneous) Bill 2020 in light of:

  • the shrinking boundaries of the forested landscape in North East New South Wales from Coffs Harbour to the NSW-Qld border;

  • the potential loss of local government control of significant aspects of development of forested land and the rolling impacts that may have on koala habitat and koalas numbers; and

  • the potential for local extinction of koala in the Clarence Valley because land in this local government area was deliberately removed from the protection afforded by the current Koala Habitat Protection SEPP under provisions in Local Land Services Amendment (Miscellaneous) Bill 2020.

In anticipation and appreciation of your assistance with this matter.

Yours sincerely,

[two signatures redacted]

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