As discussed in Chapter 2, all levels of government in Australia have a role in the protection and management of threatened species. This chapter outlines the current Commonwealth and state regulations relating to protected flying-foxes and the effectiveness of the current regulatory framework. Examples of current management actions and regulatory pathways are then considered.
Current Commonwealth regulation
At the Commonwealth level, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) provides for protection of the Grey-headed and Spectacled Flying-foxes. Both are matters of national significance under the EPBC Act, and were listed as Vulnerable in 2001 and 2002 respectively.
These listings require any individual to gain approval from the Minister for the Environment and Energy—delegated to the Department of the Environment and Energy (the Department)—for any action that ‘will have or is likely to have a significant impact’ on the populations of the flying-foxes covered by this inquiry.
Accordingly, the Department has developed a Referral guideline for management actions in Grey-headed and Spectacled Flying-fox camps to help guide any proponents through the requirements to seek approval, or otherwise, for any actions that may have significant impact on the protected flying-foxes.
This guideline seeks to make the regulation of camp management or dispersal activities as smooth as possible. However, as noted by many submitters to the inquiry and by witnesses at the roundtable public hearing, the referral requirements and management action approvals process can be confusing or poorly informed based on a number of complex factors. These factors are discussed later in this chapter.
The current referral decision-making requirements are summarised in the guideline, and are outlined in the chart reproduced in Figure 3.1.
Figure 3.1: Referral decision-making process for management actions in Grey-headed or Spectacled Flying-fox camps
Referral guideline for management actions in Grey-headed and Spectacled Flying-fox camps, Commonwealth of Australia, 2015, p.5.
In essence, the referral guideline is designed to guide and inform individuals and groups (including state and local governments) on whether their actions may impact on the protected flying-fox species and whether their proposed action requires referral to the Minister (via the Department). Interestingly, proposed actions in flying-fox camps that are not nationally-important do not require referral. In these instances, planning and mitigation measures are recommended, but not required.
The guideline seeks to outline clearly the considerations and processes relevant to managing flying-foxes. However, evidence to the Committee indicated that stakeholders most in need of the guidance are either unaware of its existence, unable to access the relevant information or knowledge, or confused about how it relates to state requirements, or the camp they are affected by. The Committee also heard that the guideline in its present form does not sufficiently cater to the needs of those responding to an urgent camp management issue.
The Committee was told that local government has particular needs. Dr Peggy Eby summarised the access and knowledge issues:
In my view, the process of devolving responsibilities for camp management has fragmented approaches to management, and disadvantaged local government. There is a case for the processes to support these decisions to devolve to be reviewed. Insufficient or no structure for supporting local government was put in place around the changes, in my understanding, and in many locations the environment and planning staff of individual councils are expected to manage and resolve often intractable, highly controversial problems, having very limited personal experience with flying foxes, very little guidance from state and federal agencies, poor access to information, and limited financial and human resources.
The Local Government Association of Queensland also suggested that, with the Queensland Government devolving responsibility to local government, as well as the exclusion of potential referrals by application of the federal referral guideline, there is a lack of relevant data about what unregulated actions are being undertaken. The impact that those actions are having on flying-fox habitats and behaviours is also going unrecorded, or only being recorded on an ad-hoc basis.
Additionally, Ecosure stated that the federal referral guideline defers to state protection frameworks in certain circumstances. Ecosure argues that, in Queensland, this ‘provides very little protection for individual flying-foxes, and next to no protection against population or species-level impacts’.
The Committee heard that the current system would benefit from greater coordination and harmonisation across jurisdictions, especially given the nature of the flying-foxes affected. Potential solutions are considered in Chapter 4.
Conservation agreements, management strategies and national interest exemptions
At the Commonwealth level, the Minister for Environment and Energy can enter into a Conservation Agreement with a body under section 305(1A) of the EPBC Act, where the agreement will result in ‘a net benefit to the conservation of biodiversity’. This power may be delegated to the Department.
In 2016, the Department entered into conservation agreements with the Sunshine Coast Regional Council and the Eurobodalla Shire Council to manage Grey-headed Flying-foxes in their local government areas. These conservation agreements negate the need for further referrals of individual management actions, as the agreements define specified classes of action and applicable conditions for ongoing management of the flying-foxes in the applicable areas, with conservation at the core of any of those activities.
Conservation agreements would seem like a logical mechanism for managing flying-foxes in the longer-term. However, the small number of agreements currently in place does not allow a thorough assessment of the effectiveness of this mechanism at the current time.
In addition to the conservation agreements, section 146 of the EPBC Act allows for strategic assessments over a large geographic area and timeframe, where research on population dynamics, past management actions and future planning can be considered, to guide development in a region to minimise impact on species such as the protected flying-foxes. Such an assessment was conducted in the Lower Hunter region of NSW, which contains Grey-headed Flying-fox camps, and has resulted in a management strategy being developed in October 2012 to guide actions in the area.
Finally, the Minister for the Environment and Energy can grant an exemption from the requirements of assessment or approval under section 158 of the EPBC Act, if the Minister is satisfied that it is in the national interest to grant such an exemption. Such an exemption was granted to the Eurobodalla Shire Council in May 2016, to allow urgent action to respond to the rapid increase in Grey-headed Flying-foxes in Batemans Bay. More detail on this occurrence is included later in this chapter.
The exemption allowed for a rapid response to a severe community problem in Batemans Bay. The appropriateness of the exemption, however, has been questioned. Humane Society International contends that the provision to grant an exemption is intended to respond to extreme circumstances, and questions whether this definition was satisfied in this case. Furthermore, Ecosure suggests that the intervention may have had a detrimental effect on the reproductive cycle of the flying-foxes dispersed or affected.
The development of a national recovery plan under section 270 of the EPBC Act is an essential element of the longer term recovery and effective management of flying-foxes.
The recovery plan for the Spectacled Flying-fox was developed by the Department in partnership with the Queensland Government and released in April 2011. The stated objectives of the plan are:
… to secure the long-term protection of the spectacled flying fox through a reduction in threats to the species’ survival and to improve the availability of scientific information to guide recovery.
The Department released a draft recovery plan for the Grey-headed Flying-fox in January 2017, which is open for public comment until April 2017. The plan gives priority to the recovery of the species, through the reduction of threatening processes. Priority actions highlighted in the plan include:
the identification of key foraging areas and vegetation communities used by Grey-headed Flying-foxes;
the improvement of winter and spring foraging habitat;
the protection and enhancement of native roosting habitat critical to the survival of the species;
to work with local government and private landholders to identify existing roosting habitat, land suitable for creating new or rehabilitated habitat, and areas that are unsuitable for development;
the continuation of the National Flying-fox Monitoring Programme (NFFMP) in order to provide a more accurate picture of population trends and the development of robust models of Grey-headed Flying-fox life history and population dynamics, to enable predictions of likely threats to the species; and
to improve the community’s ability to co-exist with Grey-headed Flying-foxes, through improved stakeholder engagement, research, policy and education, and the promotion of practical and cost-effective non-lethal protection measures for commercial crops.
The recovery plans for the nationally protected species both reflect the priorities for protecting, conserving and managing the species into the future. However, the long timeframes for action may lead to some frustration within communities. As such, some priorities for the interim are discussed further in Chapter 4.
Current state regulation
Significant differences exist in flying-fox management requirements across the eastern states, relative to the impact in those states and the government priorities for the state in question. These differences can create confusion and frustration for local land managers and communities, given that the Commonwealth management requirements may defer to differing state frameworks, or actions in one state area may impact on another state, due to the mobile nature of flying-fox populations.
For example, Eurobodalla Shire Council described these inconsistencies as inequitable, leading parts of the community to feel that they did not have access to management options that were available elsewhere, or that they were being unduly impacted by flying-foxes due to actions undertaken in other states.
Outlined below are the current requirements in the eastern states and how they differ between each other and to the Commonwealth requirements outlined earlier in this chapter.
From 2013, the Queensland Department of Environment and Heritage Protection (EHP) has issued a limited number of damage mitigation permits each year under the Nature Conservation Act 1992, allowing the ‘lethal take’ of flying-foxes (not including the Spectacled Flying-fox) by shooting to protect commercial fruit crops.
These permits are only granted after non-harmful control measures have been utilised and proven to be ineffective. Fruit growers are permitted to use lethal measures only in conjunction with two non-harmful practices, such as netting.
Each permit is considered on a case-by-cases basis, and the number of flying-foxes to be taken is limited by quotas. These quotas are based on wild flying-fox population levels and the conservation status of relevant species. Due to its ‘Vulnerable’ conservation status, permits are not issued for the Spectacled Flying-fox.
In terms of non-lethal management options, the Flying-Fox Management Framework was introduced in Queensland in 2013, giving local governments an ‘as-of-right’ authority to manage roosts in Urban Flying-Fox Management Areas. Councils meeting the Queensland Code of Practice—Ecologically sustainable management of flying-fox roosts are authorised to use non-lethal methods to drive away from, destroy and disturb flying-fox roosts. Permission from relevant landholders is required before management measures can be undertaken.
Local governments may also apply for a Flying-fox Roost Management Permit from EHP to undertake activities that do not meet the Queensland code of Practice and/or to develop a management plan that covers the entire local government area. This permit provides a three-year approval to manage flying-fox roosts outside of urban areas.
Additionally, individuals are authorised to undertake low impact activities at flying-fox roosts in accordance with the Queensland Code of Practice—Low impact activities affecting flying-fox roosts.
These activities must be considered carefully, especially in relation to the removal of trees to create buffer zones, as ‘the removal of trees is restricted to weed species in riparian areas classified by the State Government as Regulated Vegetation Matters of State Environmental Significance’.
A number of submissions noted that regulatory changes in Queensland had seen an increase in flying-fox roost dispersals, some without consultation with neighbouring management authorities, and in areas that had not previously seen dispersals.
The Committee heard that the devolution of flying-fox management regulation to local government had led to unrealistic community expectations that councils can easily and effectively manage flying-foxes. This in turn had increased pressure on local government to use dispersal methods, at times without proper consideration of alternative courses of action.
New South Wales (NSW)
In NSW, the management of flying-fox populations is set out in the NSW Camp Management Policy 2015. The policy provides a framework within which the NSW Office of Environment and Heritage (OEH) makes regulatory decisions regarding flying-fox camp management, and provides guidance and advice to communities, local councils and other land managers regarding the management of flying-fox camps.
The policy focuses on a management approach ‘on which a hierarchy of options is based on the principle of using the lowest form of intervention required.’ Routine camp management options are considered Level 1 actions, the creation of buffer zones Level 2 actions, and camp dispersal and disturbance Level 3 actions.
As part of the policy, OEH has developed the Flying-fox Camp Management Plan Template 2016. The template provides guidance for land managers when developing a camp management plan, reducing preparation and implementation timelines. The document enables land managers to input their own data into the template, which is then submitted to OEH for consideration and approval. Licensing of flying-fox camp management actions is streamlined when a camp management plan is prepared in accordance with the template. Approvals for camp management plans are issued by OEH for five years.
The NSW Government has tightened regulations on the shooting of flying-foxes for crop protection. Since 1 July 2015, OEH has only issued licences to shoot flying-foxes as a crop protection measure ‘where it considers that flying-fox damage to orchards is the result of special circumstances’. Licences are only issued to shoot flying-foxes during the duration of the incursion, and are subject to strict limits.
The Biodiversity Conservation Act 2016 and the Local Land Services Amendment Act 2016 were passed by the NSW Parliament in November 2016. The bills will repeal the Threatened Species Conservation Act 1995 and the Nature Conservation Trust Act 2001 in full (upon their proclamation), as well as parts of the National Parks and Wildlife Act 1974, creating a single piece of biodiversity legislation. The Local Land Services Amendment Act 2016 will repeal the Native Vegetation Act 2003. The NSW Government Office of Environment and Heritage expects the legislation to be in force by mid-2017, but there are no firm dates for the full repeal of the old Acts and commencement of the new Acts at this stage.
The new legislation intends to enable the regulation of native vegetation in rural and urban areas, facilitate ecological sustainable development, and improve the effectiveness of conservation actions.
Several submissions outlined concerns regarding the environmental impact of the new legislation, including a possible increase in the rate of land clearing in NSW and the impact the reforms will have on the Grey-headed Flying-fox.
Conversely, Hunter Councils noted that provisions within the new legislation may address concerns regarding the misalignment of regulatory frameworks between states and the Commonwealth and the lack of a trigger process to move flying-fox camp management applications from state to Commonwealth consideration.
In Victoria, flying-fox camps are managed by the Victorian Department of Environment, Land, Water and Natural Resources. The City of Geelong is an exception, and has developed its own camp management plan for the camp located within its jurisdiction. The Committee only received three submissions from Victoria regarding the inquiry.
Effectiveness of the current regulatory framework
As outlined above, the EPBC Act requirements for referral of management actions falls on any individual proposing to undertake action that aligns with the relevant categories of impact. In most situations, that responsibility will fall on local government bodies, businesses and producers that have flying-fox camps that affect their residents, properties or businesses.
Evidence from a range of local councils, individuals, experts and businesses emphasised that the management of flying-fox camps can be onerous and confusing, and often occurs when least expected.
Cessnock City Council highlighted the confusion that can arise from the requirements to satisfy Commonwealth and state regulatory requirements for planning and management actions, while having to consider the EPBC Act requirements as well. Ultimately, they described the legislative framework as ‘confusing, duplicative and [a] complicated approach to threatened species management’.
Eurobodalla Shire Council emphasised that the state and Commonwealth regulatory frameworks can operate independently of each other, leading to duplication and confusion, and can result in lengthy delays to urgent management actions (such as those undertaken in Batemans Bay).
Other councils raised similar concerns, contending that duplication or a lack of coordination cause delays or confusion.
However, some councils, such as the Sunshine Coast Council, did not identify issues with coordination between state and Commonwealth requirements. It is unclear whether this reflects favourable experiences with the regulatory system, or as in Ku-ring-gai Council’s case, an absence of experience with EPBC Act referrals.
Additionally, some councils identified the issues they have experienced with state management or protection regulations, especially in relation to the Queensland Government’s devolution of flying-fox camp management activities to local government. The Local Government Association of Queensland was especially critical of the 2013 move to introduce a Flying-Fox Management Framework that devolved all management responsibility to under-prepared and under-resourced local councils.
The Committee also received a number of pieces of correspondence from affected community members, outlining the lifestyle impacts of living in close proximity to flying-fox camps (as outlined in Chapter 2). The importance of making sure that communities are educated about the value of these animals to the ecosystem, while also catering for the responsible management of the species into the future, is a key area for future focus.
A number of other submitters also expressed concern that devolution of management regulation and coordination would have a detrimental effect on the effective protection and longer-term successful management of flying-fox populations.
Sydney Coastal Councils Group also expressed concern that the proposed relaxation of NSW environmental protections, such as repealing the Native Vegetation Act 2003 (NSW), could impact on many species, including nationally protected flying-foxes.
The requirement for clearer guidance, coordination, education and action on these issues is discussed in Chapter 4.
Current management actions: does ‘best practice’ exist?
The management practices that can be undertaken when a flying-fox camp impacts on an urban environment, or a commercial interest, are generally limited to dispersal or habitat alteration. Technically, habitat alteration is a form of dispersal, as the modification of the roosting environment will generally dissuade flying-foxes from returning.
Dispersal activities are generally categorised as either passive or active. Passive dispersal occurs when the flying-fox is deterred from landing in a tree, either by installing a sprinkler system or netting, or by creating a buffer zone where vegetation is removed to create a separation between the camp and residents or businesses.
Active dispersal refers to an action undertaken to physically disturb the flying-foxes from an established roosting spot, using light, noise, smoke or other elements that will drive them from the current location.
The passive options are considered less stressful for the flying-foxes as they replicate more closely occurrences in nature. For example, ‘[a] tree might fall down and that roost may not be available to them anymore when they come back from foraging’.
In an effort to gauge the effectiveness of dispersals, Ecosure provided a summary of camp management activities in Queensland from November 2013 to November 2014. It noted that the incidence of dispersals had increased considerably (25 attempted roost dispersals in the year from November 2013 to November 2014, compared with an average of 0.4 dispersals per year between 1990 and June 2013).
Dispersal methods identified by Ecosure included ‘fog, birdfrite, lights, noise, physical deterrents, smoke, extensive vegetation modification, water (including cannons), paintball guns and helicopters’. The most common method was extensive vegetation modification, sometimes combined with other methods.
Ecosure questioned the effectiveness of dispersal methods used in Queensland. It contended that in nine of the 24 roosts dispersed, the actions taken did not reduce the number of flying-foxes within the local government area. When the flying-foxes were successfully dispersed, they did not move further than six kilometres away and, as of November 2014, repeat actions were required in 18 cases.
In April 2015, the Northern Beaches Council adopted the Cannes Reserve Flying-fox Camp Management Plan to alleviate the impacts of Grey-headed Flying-foxes on immediately adjacent residents. Dispersal commenced in July 2015, with numbers reduced to zero within two weeks. Grey-headed Flying-foxes returned to Cannes Reserve in November 2015 with young present. Maintenance dispersal was attempted but was not successful. Dispersal was not undertaken in 2016, with Council determining that the success of the program could be maintained with habitat modification, that dispersals would not completely remove flying-foxes in the long term, and that dispersals required significant resources and took a toll on staff.
The Committee heard that, while dispersals may be ineffective in some cases, there are instances where they are the only management option currently available. In the case of Eurobodalla Shire Council, the sudden influx of flying-foxes in Batemans Bay necessitated the council to consider dispersal.
Mr Lindsay Usher, Director Planning and Sustainability Services, Eurobodalla Shire Council, described the situation faced in Batemans Bay in 2016:
We were forced into a situation where we had to look at dispersal. I am often asked whether it was successful. I think that as to the longer term I cannot answer that question, but I can say it was very successful in the shorter term. We were able to move the flying foxes out of people’s backyards, we were able to give those people some relief, we were able to give those people their lives back and we were able to go in and establish some buffers which will hopefully mitigate impacts in the future.
The Committee heard that, while dispersals were necessary on occasion and had alleviated some concerns, current management tools were not sufficient to resolve the problem of flying-foxes roosting in urban areas. In order to return flying-foxes to their natural habitats, greater long-term planning and research were advocated.
Examples of regulatory pathways and management actions
Royal Botanic Garden Sydney
The Royal Botanic Garden (RBG) in Sydney has had one of the highest-profile and most successful longer-term dispersal and management programs in place for a roost of Grey-headed Flying-foxes that established a camp in the Palm Grove within RBG in 1989.
The Palm Grove is the oldest and most significantly planted area of the RBG heritage site. Between 1989 and 2012, 33 trees and 35 palms in the Palm Grove died as a result of sustained defoliation due to flying-fox camps. An extra 60 trees and palms were considered to be in a critical condition. Dispersal and relocation approval was sought and granted prior to 2012 through both the NSW and Commonwealth governments.
The approved actions for the dispersal activities culminated in pre-dawn and dusk noise dispersal activities and continued observation and dispersal over time whenever flying-foxes were observed trying to roost again.
Flying-foxes from the camp were fitted with satellite tracking collars and their dispersal was monitored. Some of the animals tracked dispersed to other roosts within the greater Sydney area, however some tracked individuals dispersed 1 100 kilometres to the north in the Boyne Valley in Queensland, with others extending nearly 780 kilometres to the south into Geelong in Victoria. This movement to distant colonies is an example of the highly mobile nature of Grey-headed Flying-foxes.
Ultimately, the complicated, highly-regulated and closely monitored dispersal efforts in the RBG have been successful. The camp was dispersed within one week in 2012, and has been deterred from re-establishing since that time.
However, the example of the RBG case is not a good indicator of average efforts with typical resources. Continued observation and dispersal activities are ongoing, though the RBG reports ‘in 2015-16 no management actions were required to deter grey-headed flying-foxes from resuming roosting within the Royal Botanic Garden, following the dispersal in 2012’.
While the RBG does not disclose the exact cost of the dispersal program in their annual reports, the efforts in Sydney, and similar efforts in the Royal Botanic Gardens Melbourne have reportedly cost ‘millions’. Ecosure estimate the costs of the dispersals at greater than $1 million and $3 million for Sydney and Melbourne respectively.
Eurobodalla Shire Council
The high-profile dispersal and management action undertaken in Batemans Bay in June and July 2016 illustrates a regulatory pathway that can respond to rapid and large-scale impact from an urban flying-fox roost.
The Water Gardens Reserve in Batemans Bay had recorded a Grey-headed Flying-fox presence since 2012 and the council had adopted the Water Gardens Grey-headed Flying-fox Camp Management Plan 2015, in an attempt to manage impact and interaction with surrounding residents.
However, in April 2016 the population of flying-foxes in the Gardens expanded exponentially from ‘… virtually none to estimates of 300,000 plus over a matter of a couple of weeks’. This appeared to coincide with an extraordinary seasonal flowering event, culminating in approximately 50 to 70 per cent of the entire national population of Grey-headed Flying-foxes roosting and foraging in Batemans Bay at that time.
The response to this extraordinary event was the issuing of the National Interest Exemption outlined earlier in this chapter, resulting in rapid dispersal and mitigation activities (vegetation removal and buffer zone creation). These actions came at a significant cost of $3 million, including a $2.5 million grant from the NSW Government.
The Committee heard that the situation in Eurobodalla Council in 2016 was temporary, with heavy flowering of native trees attracting an unusually high number of flying-foxes to the area. It was noted that when the dispersal efforts began mid-2016, flying-foxes had already started to leave the area, due to a reduction in food availability.
This rapid response has been followed by the establishment of a conservation agreement, as outlined earlier in this chapter. However, the factors leading to the Batemans Bay situation are not completely understood, making it difficult to determine whether a similar response would be necessary or as effective in future. For example, the same flowering event may occur again, or may occur elsewhere, or the end of the flowering event may have led to the flying-foxes naturally dispersing, as outlined above.
The information and tools required to understand these situations and determine the appropriate response are discussed further in Chapter 4.
Other regulatory and management issues
The Committee received a number of submissions from local councils with experience of the regulatory frameworks (either state or Commonwealth) for proposed or undertaken flying-fox management activities. As outlined earlier in this chapter, a number of these stakeholders expressed confusion or frustration about duplicate processes.
Cessnock City Council staff noted that the duplication of legislation adds time and complexity to the process unnecessarily, impacting adversely on assessment turnaround times and often delaying applications for lengthy periods. The assessment delay subsequently places more risk on the viability of proposals.
Throughout the inquiry the Committee was presented with evidence that flying-foxes are ecologically important and should be managed appropriately to ensure their protection and conservation. However, noting the genuine negative effects that flying-fox camps can have on communities, it is imperative that a balance is struck between their social and environmental impacts, and their conservation, protection and environmental contributions. The Committee is keen to ensure that the regulatory framework enables affected communities to effectively manage the impacts of problematic flying-fox camps, while still ensuring that appropriate environmental protections are in place.
In some cases, flying-fox camps may be temporary, and councils are well-placed to assist affected residents to cope with any issues during the camp’s existence. The Committee notes the range of mitigation tools offered by councils (including subsidised cleaning equipment, access to high pressure cleaners, clotheslines, car and boat covers, providing semi-covered walkways and assistance in netting backyard fruit trees) proved beneficial in limiting some flying-fox impacts.
Communication between residents and councils is also important, and councils are well-placed to proactively identify areas of future tensions and engage with local residents. This may include education campaigns and online engagement tools, highlighting the importance of flying-foxes and the mitigation options available to residents. There is a role for the Commonwealth in providing resources and coordination services for local councils, and this is discussed further in Chapter 4.
In some situations, modification of the environment may be an efficient and cost-effective means of managing flying-fox roosts. Such measures include improving roost habitats away from residential areas, removal of trees on private property, the creation of vegetation buffer zones and installing canopy sprinklers in trees. Swimming pools and water tanks can be managed, visual/sound/smell barriers with fencing or hedges can be installed, and double glazed windows and air conditioners should be considered, especially if the flying-fox camp is of a temporary or seasonal nature.
However, the Committee recognises that in severe cases the only option may be dispersal.
The Committee is confident that the above resources, together with the prioritisation of the other measures recommended in Chapter 4, can help achieve an appropriate balance for communities in the eastern states affected by flying-fox camps.