Law and policy developments
In the courts
Tarkine National Coalition Incorporated v Minister for Sustainability, Water, Population and Communities  FCA 694 (17 July 2013)
The Federal Court overturned a controversial decision by the Commonwealth Minister for Sustainability, Water, Population and Communities to approve an iron ore mine in Tasmania's Tarkine region, which is home to one of the few remaining wild populations of Tasmanian Devils not affected by the presently incurable Devil Facial Tumour Disease (the disease).
The Court's decision was significant for two reasons:
It suggests the obligation on the Minister to consider approved conservation advices, and potentially other similar documents under the EPBC Act, cannot be discharged other than by the Minister specifically considering the document itself.
The Court’s reasoning in relation to the validity of the condition of the insurance population indicates that impacts on a species protected under the EPBC Act because it faces a risk of extinction "in the wild" can, to a degree, be validly mitigated through establishing non-wild insurance populations. (It is highly doubtful, however, that such measures could be used extensively without being inconsistent with the objectives of the EPBC Act.)
Maules Creek coalmine approval challenge
Approval of the Maules Creek coalmine is being challenged in the Federal Court by the Northern Inland Council for the Environment.
EDO NSW, which will be assisting with the case, said the challenge rested on the basis that the decision to approve the mine had been made too quickly, and so not all factors had been given due consideration. Of particular concern is the quality of the ''offsets'' Whitehaven had promised to set aside in return for being allowed to clear up to 1500 hectares of forest classed as ''critically endangered''.
For more detail, click here.
New South Wales
Hunters Hill Council v Gary Johnston  NSWLEC 89
A Hunters Hill resident (the defendant) obtained development consent to build a house on the foreshore of the Parramatta River. A condition of the consent was that four Hoop Pine trees located on the boundary between the river and the proposed house be retained to screen the new development from the water.
The Hoop Pines were protected throughout construction of the defendant’s house, however, not long after construction was completed, the defendant engaged a contractor to remove the trees. A neighbour noticed that the trees were being cut down and immediately reported the tree lopping to Council.
The defendant was charged with an offence under the Environmental Planning and Assessment Act 1979 and fined $40,000.
Doherty v Murrindindi Shire Council (Red dot)  VCAT 1185
The planning system in Victoria has needed to respond to the catastrophic Black Saturday bushfires in February 2009, in which 173 Victorians perished. Since then more rigorous planning controls have been introduced and applied by the Victorian Civil and Administrative Tribunal (VCAT).
This particular case involved a rural site in a ‘very high bushfire risk’ location which was badly affected by the 2009 fires. The owner had been allowed to build a smaller temporary building on the site soon after those fires. Having since rebuilt his main dwelling on the land, the owner wished to upgrade the temporary building to a more permanent “dependent person’s unit”. The Tribunal refused the proposal, relying on the advice of the Victorian Country Fire Authority that, because the native scrub had begun regrowing since 2009, the bushfire risks were now excessive.
This decision highlights the very challenging bushfire risk issues at play, particularly as bushfire risk assessments done soon after 2009 may become less reliable over time.
In the legislature
New South Wales
Amendment of Protection of the Environment Operations Act 1997
The Protection of the Environment Operations Act 1997 has been amended by the Protection of the Environment Operations Amendment (Scheduled Activities) Regulation 2013 to include three new activities in the list of activities for which an environmental protection licence is required. Those activities are:
coal seam gas (CSG) exploration, assessment and production activities and
electricity generation activities by means of wind turbines on wind farms.
All CSG activities which are now required to hold an environmental protection licence will have until 28 September 2013 to apply for their new licence, while all large scale wind farms (whether operational, under construction or about to start construction) will have until 28 March 2014 to apply for their new licence.
Mining Management Amendment Bill 2013
This Bill was passed on 27 June 2013. It revises the Mining Management Act to deliver a range of improvements to enhance operation of the Act and strengthen environmental regulation. The Bill also provides for the introduction of an annual levy on mining securities.
Land, Water and Other Legislation Amendment Act 2013
The Water Act 2000 was recently amended to extend the expiry date on water licences from up to 10 or up to 20 years (depending on the purpose for which the licence was required) to 99 years, by setting the expiry date of all current water licences to 30 June 2111 by the Act.
Previously, on expiry licence holders were required to apply for the licence to be renewed, exposing them to the possibility of a reduction in their authority to use the water or a cancellation of the licence.
This extension does not prevent the cancellation or surrender of a water licence, nor does it apply to expiry dates for water licences stated in water resource plans, resource operations plans or wild river declarations.
Policy summary: proposed move to emissions trading on 1 July 2014
The Australian Government recently released a policy summary of its proposed move to emissions trading on 1 July 2014.
Key points include:
the use of eligible international units such as EU and Kyoto Protocol units by liable entities for up to 50% of their annual liability,
a pollution cap (the number of Australian carbon units auctioned for each compliance year) will be set by the government for 2014–15 on the recommendation of the Climate Change Authority by 28 February 2014,
seven auctions of carbon units will be held for the 2014–15 compliance year,
use of carbon farming credits will be unlimited from 1 July 2014,
2014–15 carbon units can be banked for use in later compliance years,
following consultation, a carbon unit price ceiling will be set for 2014–15 by 1 July 2014.
The policy summary is available here.
New South Wales
Minister for the Environment announces biodiversity offset reforms
Minister for the Environment Robyn Parker has announced that a new biodiversity offsets fund will be established in New South Wales. The fund will allow major projects to contribute money to the fund rather than locating and purchasing biodiversity offset sites themselves. Additional reforms include:
the establishment of a transparent methodology for calculating offsets,
the introduction of a tiered approach, including alternatives to land-based offsets,
the ability for offset calculations to be discounted where significant social and economic benefits accrue to NSW as a result of a proposal, and
the establishment of a common set of offsetting principles.
For more information, click here.
Progress on the review of the Native Vegetation Regulation
The Office of Environment and Heritage has announced the timeframe for the remaking of the Native Vegetation Regulation.
Details are available here.
South Australia signs Murray-Darling Basin Plan
The South Australian Government says it has secured a healthy River Murray system for future generations by formally signing the landmark intergovernmental Murray-Darling Basin Plan.
The agreement with Canberra and other Basin states outlines how all jurisdictions will work together to deliver the Plan, which aims to return 3,200 gigalitres of water to the Murray-Darling river system which will help to maintain the health of the river’s floodplains, and the internationally-recognised wetlands of the Coorong, Lower Lakes and Murray Mouth region.
More information is available here.
State Planning Policy Framework to be reviewed
Minister for Planning Matthew Guy has announced a full review of the Victorian State Planning Policy Framework (SPPF) in order to deliver on the State’s new Metropolitan Planning Strategy and its Regional Growth Plans.
An Advisory Committee, chaired by Geoff Underwood, has been appointed and will review the role, structure and format of a revised SPPF that will integrate and align state planning policy, the Metropolitan Planning Strategy and Regional Growth Plans.
The Advisory Committee will deliver its first report in October for the consideration of the Minister for Planning.
Additional information is available in the media release which announced the review.
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