Department of Environment and Conservation (NSW), 2005
ISBN: 1 7412 2144 7
2 Legislative Context
- 2.1 Legal status
- 2.2 Recovery plan preparation
- 2.3 Recovery plan implementation
- 2.4 Relationship to other legislation
- 2.5 Key Threatening Processes
- 2.6 Critical Habitat
- 2.7 Environmental Assessment
Daphnandra sp. C Illawarra is listed as an endangered species on Schedule 1 of the NSW Threatened Species Conservation Act 1995 (TSC Act) and as an endangered species under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).
Among the consequences of a species being listed on the schedules of the TSC Act are the following:
- A recovery plan must be prepared;
- Consideration must be given to the species when assessing the impacts of developments and activities, with the aim of minimising adverse impacts; and
- Other actions that are likely to result in the harming or picking of that species or damage to its habitat must be licensed.
The TSC Act provides a legislative framework to protect and encourage the recovery of threatened species, endangered populations and endangered ecological communities in NSW.
Under this legislation the Director General of the Department of Environment and Conservation (DEC) has a responsibility to prepare recovery plans for all species, populations and ecological communities listed as endangered or vulnerable on the TSC Act schedules. Similarly, the EPBC Act requires the Commonwealth Minister for the Environment to ensure the preparation of a recovery plan for nationally listed species and communities or adopt plans prepared by others including those developed by State agencies. Both Acts include specific requirements for the matters to be addressed by recovery plans and the administrative process for preparing recovery plans.
This recovery plan has been prepared to satisfy both the requirements of the TSC Act and the EPBC Act and therefore will be the only recovery plan for the species. It is the intention of the Director General of DEC to forward the final version of this recovery plan to the Commonwealth Minister of the Environment for adoption.
The TSC Act requires that a public authority must take any appropriate measures available to implement actions included in a recovery plan for which they have agreed to be responsible. Public authorities that are responsible for the implementation of recovery plan actions are required by the TSC Act to report on measures taken to implement those actions. In addition, the Act specifies that public authorities must not make decisions that are inconsistent with the provisions of the plan.
The public authorities relevant to this plan are the DEC, the Department of Infrastructure Planning and Natural Resources (DIPNR), the Rural Fire Service (RFS), Wollongong City Council, Kiama Municipal Council, Shellharbour City Council and Shoalhaven City Council. Consequently, the actions outlined for these public authorities must be implemented as described in the plan.
The EPBC Act specifies that a Commonwealth agency must not take any action that contravenes a recovery plan.
The lands on which D. sp. C Illawarra occurs include those that are owned or managed by the DEC, Shellharbour City Council, Kiama Municipal Council and private landholders.
Relevant NSW and Commonwealth legislation includes:
- Environmental Planning and Assessment Act 1979;
- Local Government Act 1993;
- Native Vegetation Act 2003;
- National Parks and Wildlife Act 1974;
- Rural Fires Act 1997;
- Rural Fires and Environmental Assessment Legislation Amendment Act 2002;
- Threatened Species Conservation Act 1995;
- Threatened Species Conservation Amendment Act 2002; and
- Commonwealth Environment Protection and Biodiversity Conservation Act 1999.
A key threatening process (KTP) is a process listed under the TSC Act that threatens, or has the capability to threaten, the survival or evolutionary development of species, populations, or endangered ecological communities.
Clearing of native vegetation has been observed to effect D. sp. C Illawarra. The final determination for this KTP defines clearing as “the destruction of a sufficient proportion of one or more strata (layers) within a stand or stands of native vegetation so as to result in the loss, or long term modification, of the structure, composition and ecological function of a stand or stands” (NPWS 2001).
Other KTPs that potentially affect the species include:
- Alteration to the natural flow regimes of rivers and streams and their floodplains and wetlands;
- High frequency fire resulting in the disruption of life cycle process in plants and animals and loss of vegetation structure and composition; and
- Anthropogenic climate change.
The NSW Scientific Committee made a preliminary determination to list Herbivory and environmental degradation caused by feral deer in October 2003. If a final determination is made to proceed with the listing of this KTP, it will be of relevance to D. sp. C Illawarra.
In addition to these key threatening processes, a number of other threats to the survival of D. sp. C Illawarra exist (see Section 8.3).
The TSC Act makes provision for the identification and declaration of critical habitat. Under the TSC Act, critical habitat may be identified for any endangered species, population or ecological community occurring on NSW lands.
Once declared, it becomes an offence to damage critical habitat (unless the action is exempted under the provisions of the TSC Act) and a Species Impact Statement is mandatory for all developments and activities proposed within declared critical habitat.
Under the EPBC Act, critical habitat may be registered for any nationally listed threatened species or ecological community. When adopting a recovery plan the Commonwealth Minister for the Environment must consider whether to list habitat identified in the recovery plan as being critical to the survival of the species or ecological community.
It is an offence under the EPBC Act for a person to knowingly take an action that will significantly damage critical habitat (unless the EPBC Act specifically exempts the action). This offence only applies to Commonwealth areas. However an action which is likely to have a significant impact on a listed species is still subject to referral and approval under the EPBC Act.
To date, critical habitat has not been declared for D. sp. C Illawarra under the TSC Act or the EPBC Act. However, this recovery plan identifies the habitat features and locations (Sections 5 and 6; Appendices 2 and 3) that would contain habitat that is critical to the survival of the species, as required by the EPBC Act.
It is not currently considered to be a high priority to nominate critical habitat for D. sp. C Illawarra, as no demonstrable conservation outcome would accompany its identification and declaration. Action 1.5 in this recovery plan provides a mechanism for the recovery team to reconsider a critical habitat declaration during the third year of implementation of the plan.
The New South Wales Environmental Planning and Assessment Act 1979 (EP&A Act) requires that consent and determining authorities, and the Director General of DEC, as a concurrence authority, consider relevant recovery plans when exercising a decision-making function under Parts 4 and 5 of the EP&A Act. Decision-makers must consider known and potential habitat, biological and ecological factors and the regional significance of individual populations.
The following public authorities have a decision making function in relation D. sp. C Illawarra:
- DIPNR as a consent authority, in the making of Environmental Planning Instruments under the EP&A Act and in relation to private land that is subject to the provisions of the Native Vegetation Act 2003;
- DEC as a land manager, licensing authority and in a concurrence role under the EP&A Act;
- Wollongong City Council, Shellharbour City Council, Kiama Municipal Council, and Shoalhaven City Council, as consent and determining authorities, in the making of Environmental Planning Instruments under the EP&A Act, and in the case of Kiama and Shellharbour Councils, as land managers;
- The Roads and Traffic Authority as a determining authority under the EP&A Act;
- Southern Rivers Catchment Management Authority, in relation to land that is subject to the provisions of Native Vegetation Act 2003;
- The Rural Fire Service when issuing Bush Fire Hazard Reduction Certificates.
Additional public authorities may have responsibilities if the species is located in other areas in the future.
Any activity not requiring consent or approval under the EP&A Act, and which is likely to affect D. sp. C Illawarra, requires a Section 91 licence from the Director General of DEC under the provisions of the TSC Act. Such a licence can be issued with or without conditions, or can be refused. If a significant affect on D. sp. C Illawarra is unlikely, the Director General will issue the proponent of such an activity with a Section 95(2) certificate which acts as a defence to prosecution under sections 118A-D of the National Parks and Wildlife Act 1974.
A scientific licence issued under Section 132 (c) of the NP&W Act is required to pick D. sp. C Illawarra or damage its habitat for scientific, educational or conservation purposes.
Routine agricultural activities are exempt from the provisions of the TSC Act. This means, for example, that where D. sp. C Illawarra occurs on private rural land, in some circumstances it can legally be subject to grazing by domestic stock under the provisions of the TSC Act.
The EPBC Act regulates actions that may result in a significant impact on nationally listed threatened species and ecological communities. It is an offence to undertake any such actions in areas under State or Territory jurisdiction, as well as on Commonwealth- owned areas, without obtaining prior approval from the Commonwealth Minister for the Environment.
As D. sp. C Illawarra is listed nationally under the EPBC Act, any person proposing to undertake actions likely to have a significant impact on this species should refer the action to the Commonwealth Minister for the Environment for consideration. The Minister will then decide whether the action requires EPBC Act approval.
The Commonwealth Department of Environment and Heritage has prepared administrative guidelines (www.deh.gov.au/epbc) to assist proponents in determining whether their action is likely to have a significant impact. In cases where the action does not require EPBC Act approval, but will result in the death or injury to D. sp. C Illawarra in a Commonwealth area, a permit issued by the Commonwealth Minister for the Environment under the EPBC Act will be required.
The Commonwealth Minister for the Environment can also delegate the role of assessment and approval to other Commonwealth Ministers under a Ministerial Declaration and to the States and Territories under bilateral agreements. The development of a bilateral agreement between NSW and the Commonwealth is not complete at the date of this publication, but when in place may avoid the need for duplication of environmental assessment.