Banksia Woodlands - their impact on developments since becoming an ‘endangered ecological community’

On 26 August 2016 the Federal Minister for the Environment and Energy classed Banksia Woodlands on the Swan Coastal Plain in Western Australia (WA) an ‘endangered’ ecological community under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).  This listing became effective on 16 September 2016.

The Swan Coastal Plain incorporates the majority of the south-western part of WA from Jurien Bay in the north to Dunsborough in the south; encompassing Perth and parts of the adjacent Jarrah Forests bioregion.

For vegetation to be viewed as Banksia Woodland the canopy of low trees in that area need to include one type of the following four Banksia species: Candlestick Banksia, Firewood Banksia, Acorn Banksia or Holly-Leaved Banksia, and the trees that make up the canopy, must be dominated or co-dominated by the Banksia species.

Relevant to the recent classification, Banksia ecological communities provide habitat to animal fauna, including the threatened Carnaby’s black cockatoo, and the protection of the ecological community will therefore have the secondary effect of helping to ensure the continuation of this cockatoo species.  The impact of the Banksia Woodland classification on developers is that under the EPBC Act any action which has, will or is likely to have a significant impact on an endangered ecological community must not occur, unless certain procedures have been followed, and if it has occurred, the developer will have committed an offence, and will be liable for a penalty.

If a developer wants to undertake clearing of vegetation on land that is part of an endangered ecological community, they will be required to have the action assessed by the Minister.  The Minister will then decide to classify the action into a ‘controlled action’ or a not controlled action.  

If the action is not controlled, no formal assessment is required.  However, if it is viewed as a ‘controlled action’, an express approval under Part 9 of the EPBC Act is required by the Minister in order for the clearing to take place.

A question arising for developers subsequent to the classification, is if an action within an area with Banksia vegetation has previously been declared as not a ‘controlled action’ by the Minister, whether or not they will need to have the proposal action re-assessed by the Minister.

In the situation where the ‘not a controlled action’ decision has been made and you do not vary your action, section 158A of the EPBC Act confirms that the decision of the Minister will remain unaffected by the new classification.

It is important to note, that varying an action previously classified as not controlled, will not attract this protection due to the fact that the action is different to what was actually assessed by the Minister.  What this means is that a further assessment of whether or not the proposal is a ‘controlled action’ is required.

Variations, or new actions that have not been considered previously in any way will need to be assessed by the Minister, under what is now a higher standard of protection, with the land area having additional protection considerations.

It is also worth noting section 78 of the EPBC Act which allows the Minister to revoke their decision on a ‘controlled’/‘not-controlled’ matter, if substantial new information on the impacts of the action become available, or if a substantial change in circumstances not originally known at the time of the decision occurs.  This means that while previously assessed actions stand for developers going forward, the Minister can choose to alter their previous decision.  This is something that should be kept in mind depending on the impact the planned development will have.

If you have any questions about the impact of the Banksia Woodland classification please contact Craig Wallace.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.