The new Queensland State Planning Policy (SPP) and what it means for biodiversity

In Brief

The new SPP (released December 2013 and currently in a round of amendments) is the document set to guide development in Queensland into the future through its influence on local planning schemes, regional plans and designation of community infrastructure.  It boasts eight parts and is accompanied by a range of non-statutory guidance material to assist local government authorities (LGAs) implement the State interests. At the centre of the SPP are the five guiding principles defining how Queensland’s planning system should be (i.e. outcome focused, integrated, efficient, positive and accountable) and five themes representing the areas of State interest. The State interest of biodiversity sits under the Environment and Heritage theme and requires that LGAs, through their planning schemes, must recognise and protect matters of environmental significance (national, state and local). The SPP Guideline State interest – biodiversity provides LGAs with practical advice on how to achieve this. It suggests a standard for ecological assessments accompanying development applications (DAs) and principles for their assessment, which is:

1. Identify potential impacts on MSES;

2. Avoid, mitigate and/or offset significant residual impacts on MSES.

The new SPP, once implemented, will result in some key changes, namely:

• it will affect the sorts of development actions that will require offsetting under the new State offset policy;
• inclusion of MLES in the SPP may encourage LGAs to officially recognise their own ecological values with biodiversity mapping, overlay codes and local offsets policies becoming more widely used through out Queensland; and
• as the SPP has clearly defined what should be in an ecological assessment and how LGA’s should assess them, one remains hopeful that we will see an improvement in the content, comprehensiveness and quality of the environmental documents.

Full Article

As a sign of the commitment to reforming Queensland’s new planning scheme, the government released the new SPP before expected. The SPP is the document set to guide development in Queensland into the future through its influence on local planning schemes, regional plans and designation of community infrastructure. It provides a set of desired outcomes for local government authorities (LGAs) and lets them decide how best to achieve them through development of various codes in their planning schemes. In saying this, in instances where there is a discrepancy between the SPP and local planning schemes, the SPP will prevail. The release of the SPP demarcates a fundamental shift in State policy from ‘sustainability’ to ‘prosperity’.

With all the changes to the State’s development assessment process recently, it is forgivable to be confused as to the differences and similarities between the SPP and the State Development Assessment Provisions (SDAPs). The answer is that whilst both the SPP and the SDAPs uphold the State’s interests, ultimately, the LGAs are responsible for delivering the SPP and this is achieved through their planning schemes. The SDAPs will come into play where a development application (DA) triggers assessment through the State Assessment Referral Agency (SARA). In this situation SARA will refer to the relevant module of the SDAP (as identified by the trigger maps) and its associated codes to assess the DA. In the hierarchy of legislative planning tools, the SPP sits above planning schemes, but below State Planning Regulatory Provisions (SPRP’s) and parallel with the SDAPs.

The new SPP was released in December 2013 in a slightly different format to what was originally proposed in the draft SPP (April 2013) and it is already up for a round of adjustments with comments sought until 30 May 2013. The new SPP boasts eight parts; ‘Parts A to H’. With Parts A and B detailing the purpose and operation of the SPP, Part C illustrating the new principles of planning and development in Queensland, Part D representing the State’s interest and plan making policies across five themes, Part E providing interim development assessment requirements and Part F being a self-assessable code for operational works that is high impact earthworks in wetland protection areas. Parts G and H represent a glossary and appendix. A range of non-statutory guidance material is also available to assist local government implement the State interests.

The guiding principles (Part C) of the SPP are largely a description of what Queensland’s planning system should be, including:

1. Outcome focused

2. Integrated

3. Efficient

4. Positive (i.e. enabling positive responses to change, challenge and opportunity)

5. Accountable

These principles carry equal weight with the State interests expressed in Part D of the SPP and must be considered by local government in the development of their new planning schemes. The State interests are reflected in five themes, each associated with a number of sub-themes outlining statutory interests meant to guide planning scheme overlays and codes. The themes and sub-themes are:

• Liveable Communities (liveable communities; housing supply and diversity)
• Economic Growth (agriculture; development and construction; mining and extractive resources; tourism)
• Environment and Heritage (biodiversity; coastal environment; cultural heritage; water quality)
• Hazard and Safety (emissions and hazardous activities; natural hazards)
• Infrastructure (energy and water supply; transport; airports and aviation; ports)

The State interest of biodiversity sits under the Environment and Heritage theme. It proclaims that the planning scheme must consider and integrate matters of national environmental significance (MNES) declared under the Commonwealth EPBC Act, matters of State environmental significance (MSES) and matters of local environmental significance (MLES) that are presumably defined by the local government authority (for example, Brisbane City Council’s (BCC) Natural Assets Planning Scheme Policy). Matters of state environmental significance (MSES) can be broadly defined as environmental values that are protected under Queensland legislation including the:

• Marine Parks Act 2004
• Fisheries Act 1994
• Nature Conservation Act 1992
• Environmental Protection Act 1994
• Wild Rivers Act 2005
• Vegetation Management Act 1999
• legally secured offset areas protected by a registered covenant or similar statutory mechanism.

MSES mapping is part of the Environmental Values Database (EVD) maintained by the Department of Environment and Heritage Protection (EHP), which incorporates national, state and general environmental matters. It is essentially a conglomeration of existing environmental mapping, including: regulated vegetation and essential habitat, modelled threatened or iconic species habitat, high conservation value wetlands, high ecological value waters, fish habitat, wild rivers, legally secured offsets, protected areas and marine parks. Data that falls in cleared (category X areas on regulated vegetation maps) or built-up areas has been removed from the mapping. The mapping does recognise that not all MSES are mappable, but they are still protected by the SPP State interest – biodiversity. It uses the example of unmapped threatened plant species, stating that “localised populations of species may only be discovered through site investigations”. This is an interesting revelation considering the recent amendments to the NC Act and the use of a ‘trigger map’ to define areas requiring survey.

The mapped MSES when integrated into a planning scheme as a map overlay will be accompanied by codes. What the State is looking for in the planning scheme codes is reflected in the SPP in Part E – Interim development assessment requirements. These requirements should be considered by applicants when preparing a DA and must be considered by local government as assessment manager. The requirements for the State interest – biodiversity are relatively simple and they are:

1. Identify potential impacts on MSES;

2. Avoid, mitigate and/or offset significant residual impacts on MSES (with the word ‘significant’ being a proposed addition in the most recent round of amendments).

In fact, most other interim requirements are more extensive and some are even complemented by a code in Appendix H (such as water quality, air quality and transport). However, the publication of a draft guideline (SPP Guideline State Interest – Biodiversity) helps to shed some more light on what the State is seeking.

The SPP Guideline recognises the contribution of each of the mapped values to biodiversity, as well as those (sometimes un-mappable) things, such as: ecosystem services, threats to biodiversity, ecosystem resilience and habitat connectivity (sighting the National Wildlife Corridors Plan: A framework for landscape-scale conservation 2012). However, the complexity of these factors prevents any detailed analysis and the SPP Guideline simply identifies them as core concepts. The heart of the document is firstly in telling LGA’s how to show that they have considered MNES and MSES in their new planning schemes. That is by the LGAs providing appropriate map layers, avoiding incompatible development in areas of MNES or MSES, identifying priority areas for conservation / rehabilitation and including a biodiversity code. An example of a biodiversity code is provided in Appendix 1 with a focus on avoidance of environmental values, implementation of buffers, enhancement of connectivity and provision of offsets for MLES. Secondly the document describes how a LGA should assess a DA for compliance with the SPP State interest – biodiversity, including how ecological assessments should be undertaken (Appendix 3).

Ecological assessments are to include a description of:

• Plant communities and their condition (regulated vegetation and listed species)
• Wildlife (threatened fauna, locally significant fauna, priority species, feral animals)
• Habitat features (including sites for breeding, nesting, roosting, feeding)
• Landscape corridors
• Wetland condition (including water quality assessment)

Any MNES, MSES and MLES are to be identified in the assessment. The baseline assessment should be followed by a description of the potential impacts on each of the above features, particularly matters of environmental significance. Mitigation measures in response to the potential impacts are to be described, with an analysis of residual impacts provided. Any significant residual impact on MNES, MSES and MLES (after mitigation is applied) must be offset.

Appendix 2 of the guideline outlines significant impact criteria, which will be key to the application of offsets (since all ‘significant impacts’ must be offset). The significant impact criteria reflect those utilised by the Commonwealth government in relation to the EPBC Act. The criteria involve a series of six questions:

1. Are there any MSES in the area of the proposed development?

2. Is there potential for adverse impacts (including indirect impacts) on MSES?

3. Are any adverse impacts of the proposed action on MSES likely to be significant, considering:

a. Sensitivity of the environment

b. Cumulative impacts

c. Timing, duration & frequency

d. On-site and off-site impacts

e. Direct and indirect impacts

f. Total impact that can be attributed to the action

g. Existing levels of disturbance

h. Degree of confidence in understanding the impacts?

4. Are there any indirect and off-site impacts that could reasonably be predicted to follow from the development, e.g. downstream impacts, upstream impacts, facilitated impacts?

5. Are there any proposed measures to reduce significant adverse impacts on MSES, e.g. avoiding or minimising clearing of habitat, addressing off-site impacts, fauna movement strategies?

6. Are there other aligned strategies that may assist in achieving biodiversity outcomes, e.g. local government conservation programs like Nature Conservation Agreements, bushland acquisition etc.?

A description of some significant impacts is provided in the SPP Guideline – typically they involve scenarios that result in a decline in the MSES or a loss of condition. For example:

• species abundance or biodiversity is permanently reduced, or would require intensive or long-term intervention to be rehabilitated, in the locality
• the habitat is degraded to the extent that it loses its function or capacity as a refuge, nursery, breeding site or roosting site
• the ecological processes that sustain the ecosystem or ecosystems are impacted to the extent that there is a resultant decline or loss of condition in the area (that is unlikely to recover even with the removal of threatening processes).

Whilst the idea of a ’significant impact’ has been around for some time, the inclusion of the concept in the State’s planning policies on biodiversity represents an important change. Ultimately, it will affect the sorts of development actions that will require offsetting under the new State offset policy. Up until now offsets were seen as a way of mitigating most residual impacts (whether they had been identified in an assessment as being significant or not). However, as a result of the use of a more universal approach we may see a loss in the prescriptiveness of some of the existing ‘specific issues’ offsets policies (e.g. Vegetation Management Offsets). The State is likely to have gained inspiration for the new system from the significant impact criteria and offsets policy used by DoE in the assessment of projects under the EPBC Act, as the changes proposed bring State policies in close alignment with those of the Commonwealth. They will also bring local government requirements more in line with the Commonwealth, since LGAs will be a key component of the implementation of the SPP.

The inclusion of MLES in the SPP State interest – biodiversity also may provide extra encouragement for LGAs to officially recognise the ecological values in their own backyards. Hopefully, Queensland will see the development of comprehensive biodiversity mapping and overlay codes coming into all local planning schemes (and not just those in south-east Queensland and the far north coast). The SPP Guideline State interest – biodiversity also provides statutory support for LGA’s to create their own offsets policies and Brisbane City Council’s new draft scheme (to be released in July 2014) will have its own offsets policy.

Whilst the use of offsets to satisfactorily address significant residual impacts to ecological values is another debate entirely, it does seem that the SPP will be encouraging better ecological reports. The basic ecological assessment provided to Council’s under the SPP will need to identify MNES, MSES and MLES, potential impacts and mitigation (including offsets). Prior to the SPP, it was typical to address these issues each in a separate document with the result often being disconnected pieces of information provided to various assessing bodies potentially culminating in poor assessment and conditioning of environmental approvals. As the SPP has clearly defined what should be in an ecological assessment and how LGA’s should assess them, one remains hopeful that we will see an improvement in the content, comprehensiveness and quality of the environmental documents expected by LGA’s on a State wide basis. Remaining optimistic, the provision of higher quality documents will go some way to improving the management of natural assets in Queensland. However, in the end the success of the SPP in achieving its goals for protecting matters of environmental significance will be reliant on the particulars of the associated environmental legislation (State and Commonwealth) and the capacity for the LGAs to deliver the outcomes.