National recovery plan for the Lord Howe Woodhen (Gallirallus sylvestris)

NSW National Parks and Wildlife Service, 2002

7. Relevant Legislation

7.1 State, Commonwealth and International Listing

The Lord Howe Woodhen is listed as Endangered under the NSW Threatened Species Conservation Act 1995 (TSC Act) and Vulnerable under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). It is protected under the Lord Howe Island Act 1953.

The TSC Act is the legislative framework in NSW to protect and encourage the recovery of threatened species, populations and communities. One of the consequences of listing as a threatened species on the TSC Act is that consideration must be given to the species in assessing the impacts of developments and activities with the aim of minimising adverse impacts. A licence under the TSC Act may be required if actions are likely to result in the harming of the species or damage to its habitat.

Animal Ethics approval and licences must also be obtained under the National Parks and Wildlife Act 1974 to take, handle or keep the Lord Howe Woodhen for scientific purposes, for the welfare of the animal or if there is threat to life and property. Research on any flora and fauna on the island requires a permit under this act, Animal Ethics approval and the Lord Howe Island Act 1953 (NSW) (LHI Act).

The LHI Act established the LHIB, which is charged with the care, control and management of the affairs and trade of the Island. The Permanent Park Preserve is established under s.19A of the LHI Act and is managed in accordance with a Plan of Management.

Additionally the Lord Howe Island Group is listed as a World Heritage site and therefore must be managed in accordance with the provisions of the EPBC Act.

7.2 Recovery Plan Preparation and Implementation

Recovery plan preparation

The TSC Act provides a legislative framework to protect and encourage the recovery of Endangered and Vulnerable species, Endangered Populations and Endangered Ecological Communities in NSW. Under this legislation the Director-General of National Parks and Wildlife has a responsibility to prepare recovery plans for all Endangered and Vulnerable species, Endangered Populations and Endangered Ecological Communities listed 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 to forward this recovery plan to the Commonwealth Minister of the Environment for adoption, once it has been approved by the NSW Minister for the Environment.

Recovery plan implementation

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 and councils identified as 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 government agencies responsible for implementing this plan are the NSW National Parks and Wildlife Service (NPWS) and the LHIB.

The EPBC Act states that the Commonwealth must implement a recovery plan on those areas that apply to Commonwealth lands. There are no Commonwealth owned lands on Lord Howe Island.

The EPBC Act additionally specifies that a Commonwealth agency must not take any action that contravenes a recovery plan.

Many Woodhens occur on private leases in the settlement area of the island (there is no freehold title land on the island). Therefore, the implementation of this plan will depend significantly on a cooperative approach involving local leaseholders.

The attainment of the recovery plan objectives will be subject to available funding.

7.3 Critical Habitat

The TSC Act makes provision for the identification and declaration of Critical Habitat for species, populations and communities listed as Endangered. Once Critical Habitat is declared, it becomes an offence to damage Critical Habitat (unless the action is specifically exempted by the TSC Act). A Species Impact Statement (SIS) is mandatory for all developments and activities proposed within Critical Habitat, with the nature and extent of the SIS determined by the Director-General of National Parks and Wildlife. The declaration of Critical Habitat is not considered to be a priority for this species, as other mechanisms provide for its protection.

Under the EPBC Act, Critical Habitat may be registered for any nationally listed threatened species or ecological community. When adopting a recovery plan the Federal 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 on a Commonwealth area that will significantly damage Critical Habitat (unless the EPBC Act specifically exempts the action). Although this offence only applies to a Commonwealth area, any action that is likely to have a significant impact on a listed species occurring within registered Critical Habitat on other areas is still subject to referral and approval under the EPBC Act. Proposed actions within registered Critical Habitat on non-Commonwealth areas are likely to receive additional scrutiny by the Commonwealth Minister.

This recovery plan identifies those habitat features and the location (sections 3.2 and 6) currently known to be critical to the survival of the Lord Howe Woodhen, as required by the EPBC Act.

7.4 Environmental Assessment

The TSC Act amendments to the environmental assessment provisions of the Environmental Planning and Assessment Act 1979 (EP&A Act) require that consent and determining authorities in NSW consider threatened species and their habitats when exercising a decision-making function under Parts 4 & 5 of the EP&A Act. When considering any activity that may affect the Lord Howe Woodhen, these authorities should consider the conservation strategy outlined in this plan.

Where an activity or development that may impact upon Lord Howe Woodhen or its habitat is not subject to approval under the EP&A Act, an approval may nevertheless be required under the Native Vegetation Conservation Act 1997 or the TSC Act. These approvals must also take the strategy in this plan into consideration.

Exceptions are where the proposed activity or development is classed as exempt or is undertaken in accordance with previously approved Regional Vegetation Management Plans or Property Management Plans.

The NSW NPWS is represented on the Regional Vegetation Management Committees that are responsible for the preparation of these plans and will seek appropriate identification and protection of relevant Lord Howe Woodhen habitat under them.

Development applications on Lord Howe Island are considered in accordance with the provisions of the EP&A Act and the Lord Howe Island Regional Environmental Plan 1986 (REP). The consent authority for the Island is the LHIB. Planning NSW is currently undertaking a review of the REP.

The following public authorities currently have a decision making function in relation to the Lord Howe Woodhen:

  • The LHIB;
  • Planning NSW;
  • the NPWS; and
  • the Commonwealth through its responsibilities to manage World Heritage properties and nationally listed threatened species and ecological communities under the EPBC Act.

Any other activity not requiring development consent under the EP&A Act, which is likely to harm the Lord Howe Woodhen or damage its habitat, requires a Section 91 licence from the NPWS under the provisions of the TSC Act. If the impact is likely to be significant, as Species Impact Statement is required.

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 Environment Minister. As the Lord Howe Woodhen 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.

Administrative guidelines are available from Environment Australia 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 of a Lord Howe Woodhen and the bird is in, or on, a Commonwealth area, a permit issued by the Commonwealth Minister under the EPBC Act, will be required.

The Environment Minister 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 yet complete, but when in place will avoid the need for duplication of environmental assessment.