Law and policy developments
In the courts
New South Wales
Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5); Foxman Environmental Development Services Pty Ltd v Wollondilly Shire Council  NSWLEC 68
A waste disposal and storage company which unlawfully deposited waste material in part contaminated with asbestos and lead as fill on land on which its director was undertaking residential development has been ordered to remove the waste material. The company was also ordered to carry out remedial work on the land including revegetation, rehabilitation, and erosion control.
Wollondilly Shire Council argued that the waste on the land was causing pollution to both the land and local waterways, and that the development consent relating to the land did not authorise the landfill activities. The Court declared that the land could not be used as a waste facility without the required development consent or permission from the EPA, and that the development consent on the land did not permit the landfill operation.
Arnold v Minister Administering the Water Management Act 2000 (No 6)  NSWLEC 73
In this judicial review, 113 farmers challenged the lawfulness of the Water Sharing Plan for Lower Murray Groundwater Source (the Plan), made under s 50 of the Water Management Act 2000, and the consequential Water Management (General) Amendment (Lower Murray) Regulation 2006. The effect of the Plan is to substantially reduce the former water extraction entitlements of farmer licence holders.
The Plan was challenged on the basis of science, socio-economic issues and form. In reaching its decision, the Court considered:
- whether the Minister failed to consider a sound and reliable hydrogeological numeric model to calculate sustainable use and recharge,
- whether the Plan's adoption of a specified extraction limit was irrational or manifestly unreasonable because the hydrogeological model on which it was based was fundamentally flawed,
- whether the Minister was under a duty to have regard to socio-economic impacts,
- whether that duty had been breached by not assessing socio-economic impacts in a formal study or at the farm-by-farm level, and
- whether the Plan was bad in form.
The admissibility of expert evidence in judicial review proceedings was also considered.
The Court held that the Minister had had regard to mandatory matters including water management principles, sustainable yield and recharge and had due regard to socio-economic impacts and water sharing principles, that the form of the Plan was not defective and that expert evidence was admissible only in relation to the irrationality or manifest unreasonableness ground.
Cherry Tree Wind Farm Pty Ltd v Mitchell Shire Council (Red dot)  VCAT 521
The Victorian Civil and Administrative Tribunal (VCAT) is in the process of dealing with a proposal for a 16 turbine wind energy facility in the Cherry Tree Ranges, north of Melbourne. The proposal has been very contentious and to date has occupied 19 hearing days.
Current planning controls for wind farms in Victoria require the proponent to obtain the consent of the owner of any ‘existing dwelling’ within two kilometres of the project site, at the time the permit application was lodged. The Tribunal was required to make a preliminary ruling whether for the purposes of this requirement any such ‘existing dwelling’ existed for this application, which it found in the negative. Another key issue was the objection raised that the likely sound pressure emissions from the wind farm would cause human health problems in the surrounding locality.
The Tribunal has issued an interim decision, to enable it to consider further submissions and public report information on this ‘health’ issue. The matter is due to return for a Directions hearing before the Tribunal in September 2013.
This interim decision is significant for environmental practitioners given the public debate about the human health implications of wind farms, and in terms of the operation of the ‘two kilometre rule’ in the Victorian wind farm regulatory regime.
In the legislature
Environment Protection and Biodiversity Conservation Amendment Act 2013
This Act amends the Environment Protection and Biodiversity Conservation Act 1999 (Cth) to establish a new matter of national environmental significance for coal seam gas and large coal mining developments likely to have a significant impact on a water resource and creates relevant offences and penalties. Assented to on 21 June 2013.
Coral Sea Commonwealth Maritime Reserve Network Management Plan 2014-24 – parliamentary disallowance motion fails
On 4 June the Federal Opposition introduced a disallowance motion into Parliament that attempted to prevent the adoption of management plans for six Commonwealth marine park zones, which would have prevented their full operation. The Opposition stated that the management plans were challenged because in their opinion the process for developing marine parks regulation did not consult widely enough nor was it scientifically rigorous. These claims were refuted by the Government.
The motion was lost 71-70 after two independent MPs sided with the Government to vote it down. The failure of the disallowance motion means that the management plans will now come into force, allowing the Commonwealth marine parks network to be fully established and operational.
Protection of Prime Agricultural Land and Other Land from Coal Seam Gas Bill 2013
The objective of this Bill is to protect prime agricultural land from coal seam gas (CSG) and mining activities to ensure the sustainability of the agricultural industry and food security in Queensland.
The Bill seeks to specifically exclude CSG and mining activities from designated areas which have been identified as prime agricultural land, including by:
- prohibiting all CSG and exploration mining activities on land east of the Condamine River from Chinchilla to the New South Wales Border and from the Longitudinal line running directly through the Chinchilla Post Office east to the coast; and
- protecting areas of identified prime agricultural land as “potential strategic cropping land” under the Strategic Cropping Land Act 2011.
This Bill was introduced to Parliament on 7 June 2013 and has now been referred to the Agriculture, Resources and Environment Committee (the Committee) for examination and report.
Inquiry into Australia’s biodiversity in a changing climate
The inquiry of the House of Representatives Standing Committee on Climate Change, Environment and the Arts into Australia’s biodiversity in the face of a changing climate tabled its final report, Managing Australia’s biodiversity in a changing climate: the way forward, in the House on 17 June.
Under its terms of reference, the inquiry was to have particular regard to, among other things, an assessment of whether current governance arrangements are well placed to deal with the challenges of conserving biodiversity in a changing climate. The inquiry made a number of recommendations, including the referral of an exposure draft of an EPBC Act amendment Bill to the Committee and the establishment of an expert panel to report on options for Australia’s future integrated forest management. The Government’s reponse to the report is pending.
The final report can be accessed here.
Great Barrier Reef avoids an ‘in danger’ listing by World Heritage Committee, for now
The United Nations’ World Heritage Committee has shelved plans to place Australia’s Great Barrier Reef on its ‘in danger’ list at this year’s meeting, although it has left the door open to it being listed next year should there not be “substantial progress” in implementing key requests by the Committee.
The full text of the Committee’s decision can be found here.
New South Wales
Review of native vegetation regulations
The NSW Government will implement all 40 of the recommendations contained in an independent report on native vegetation management, undertaken as part of the review of the regulations under the Native Vegetation Act 2003.
The resulting arrangements will:
- let farmers clear paddock trees, manage invasive native species and thin native vegetation using self-assessable codes, saving farmers time waiting for approval,
- deliver faster and simpler assessment of property vegetation plans through a revised Environmental Outcomes Assessment Methodology,
- adopt a state-wide list of invasive native species allowing a common sense and equitable approach to management,
- stop the deterioration of native pastures, allowing the sustainable management of native grass species under a new exemption, and
- eliminate the dual-consent problem by eliminating the need for a property vegetation plan where landholders have development consent.
The new regulations will be supported and implemented by Local Land Services and an ongoing compliance and enforcement regime to prevent illegal clearing.
Further information about the review of this regulation is available here.
Review of NSW waste and environment levy
The NSW Government has been conducting an independent review into the operation of the waste and environment levy. A final report has recently been released and contains 17 recommendations to improve the waste levy, drive greater recycling and better align future waste levy funding to stimulate infrastructure, combat illegal dumping and reduce littering.
Information about the review, including a copy of the final report, is available here.
Queensland’s Water Sector: A 30-Year Strategy
According to community feedback on the Queensland Government’s 30 Year Water Strategy discussion paper, Queensland’s water services need better planning, lighter-handed regulations and business sustainability. The consultation period for this discussion paper has closed and the Queensland Government is currently developing the final strategy.
More information about this process, including the discussion paper, is available here.
Nullarbor Wilderness Protection Area proclaimed
The South Australian Government has proclaimed a new 9000 km2 Nullarbor Wilderness Protection Area utilising land from the former Nullarbor National Park and a portion of the Nullarbor Regional Reserve under the Wilderness Protection Act 1992 (SA). The new wilderness area, which stretches approximately 300km east from the West Australian border, effectively doubles the amount of Wilderness Protection Area in the state to 17300 km2.
Proposed Aboriginal Heritage laws
The Department of Primary Industries, Parks, Water and Environment has released a report outlining proposed changes to draft Aboriginal heritage legislation, following public consultation undertaken since late 2012. The changes would:
- clarify the relationship between the heritage permit process and the planning process,
- remove the “ignorance defence” proposed in relation to unlawful disturbance,
- provide for mapping of high and low sensitivity areas, with no permits required in low sensitivity areas unless the site contains a registered Aboriginal heritage item,
- allow the Aboriginal Heritage Council to approve Aboriginal Heritage Management Plans (with Ministerial approval only required where the proponent and Council cannot reach agreement), and
- confirm that assessment, approval and enforcement activities in relation to Aboriginal heritage will remain the responsibility of the State government, rather than local government.
The Aboriginal Heritage Protection Bill 2013 is expected to be introduced to Parliament in late 2013.
The regulatory impact statement is available here.
Review of GMO policy announced
The government has flagged its intention to commence a public review of Tasmania’s current policy on genetically modified organisms in July 2013, to be completed before the expiration of the current GMO moratorium in November 2014. The review will consider the potential market advantages and disadvantages of allowing the use of gene technology in Tasmanian primary industries.
More information regarding the review is available here.
Wind farm feasibility study to proceed on King Island
Hydro Tasmania, Tasmania’s state-owned utility company, has decided to proceed with a feasibility study for a large wind farm on King Island. If developed, the 200 turbine project would be the largest wind farm in the Southern hemisphere, delivering electricity to the national market via a high-voltage underwater cable across Bass Strait.
Given the level of community concern regarding the controversial project, Hydro Tasmania committed to not proceed with a feasibility study unless a community survey indicated 60% support. The results of a survey distributed to the 1,500 residents showed 59% support amongst the nearly 900 respondents.
For more information about the proposal, click here.
World Heritage Committee accepts nomination of additional Tasmanian Wilderness World
On 24 June 2013, the World Heritage Committee accepted the Australian government’s nomination to extend the boundaries of the Tasmanian Wilderness World Heritage Area to include 170,000 additional hectares. The extension includes areas in the Upper Florentine, Styx, Huon, Picton and Counsel River Valley.
Details of the Tasmanian Wilderness World Heritage Area are available here.
Tasmania’s Greenhouse Gas Inventory now available
The Tasmanian government has released the inaugural Tasmanian Greenhouse Gas Accounts, compiled from the most recent Australian National Greenhouse Gas Inventory (based on data from 2010-2011).
The Accounts demonstrate a decline in Tasmania’s overall emissions since 1990 of approximately 34%. However, the decline is almost entirely attributable to changes in forest practices and reforestation of land, and amended accounting practices in relation to carbon sequestration. When these factors are excluded, the Accounts reveal a net increase in Tasmania’s emissions of approximately 0.5% since 1990.
The Accounts are available here.
Inter-Government Agreement for Implementation of Murray Darling Basin Plan signed
The Victorian Government has signed the Inter-Governmental Agreement for the implementation of the Murray Darling Basin Plan and an associated funding agreement. Among other things, the IGA and funding agreement will provide Victoria with:
- $14.3 million over three years to develop offset projects to reduce the volume of water required to be recovered from productive use under the Basin Plan,
- $47.4 million over eight years for costs associated with implementing the Basin Plan, and
- a commitment from the Commonwealth that it will consult with states on the details of its $100 million Murray-Darling Basin Regional Economic Diversification Program, to provide assistance to communities affected by the Basin Plan.
More information is available here.
Proposed guideline for sentencing environmental offences
The UK Sentencing Council has just consulted on a new guideline for sentencing environmental offences. It introduces a tariff-based approach to setting fines. The underlying aim is to promote greater consistency and increase fines levels. The UK Environmental Law Association has responded with concerns that the matrix-approach is crude, inflexible and not helpfully focussed. The approach and higher levels could affect sentencing for other environmental offences and other areas of regulatory crime such as health and safety offending that are not currently subject to such guidance.
The consultation and UKELA’s response are both available here.
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