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Bulletin | May 2013

The NELA Bulletin is the monthly bulletin of the National Environmental Law Association (NELA) and is published on the first Thursday of each month. Contributions to future issues of the NELA Bulletin are welcome and should be emailed to the editor by 5pm AEST on the last Thursday of each month.

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Note to readers: Subscription to the NELA Bulletin is a benefit of membership of NELA. Membership currently runs by financial year, so all current memberships expire on 30 June 2013. If you are, or are not yet, a member of NELA, please join or renew your membership by 30 June 2013 to ensure your continued subscription to the NELA Bulletin.

This Month

NELA news and events
01. From the Vice President
02. 24th Annual Victorian Planning and Environmental Law Association (VPELA) Dinner
03. Member profile: Hao Zhang

Law and policy developments
In the courts

05. In the legislature
06. Policy developments

News and events from NELA’s partners
07.(UK) Proposed ‘growth duty’ for non-economic regulators

08. (NZ) 11th IUCN Academy of Environmental Law Colloquium
09. (Aus) ACIUCN Science Informing Policy Symposium Series
10. (UK) 25th Anniversary UK Environmental Law Association (UKELA) Conference
11. (NZ) Resource Management Law Association Conference 2013

Other events
12.(NSW) NSW Government’s White Paper – A new planning system for NSW community forums
13. (NSW, NT, QLD) Australian Wild Law Alliance (AWLA) – upcoming events
14.(VIC) Separation Distance Guidelines seminar
15. (UK) Wildlife, Wilderness and Wild Law weekend
16. (UK) Garner Lecture 2013: The Common Laws of the Environment: At home and abroad
17. (Fiji) 9th Pacific Islands Conference on Nature Conservation and Protected Areas

19. Opportunities for Comment
20. Roles
21. Other

22. Book: Guidelines for Landscape and Visual Impact Assessment, 3rd Edition

NELA news and events

From the Vice President

Membership renewals will be sent out shortly – so keep an eye out as you won’t want to miss an exciting phase of innovation and improvement in the delivery of membership services and benefits
to you.

In the last issue we highlighted the move to an electronic format for the National Environmental Law Review and an upgrade of NELA’s website. These are just a few of the strategic initiatives the executive is implementing to help you engage more dynamically with NELA.

We are also seizing on the enthusiastic feedback we received after the 2013 National Conference and have begun planning a program of seminars and other events to be held on a State by State basis. 
We would love to hear from you to help develop the seminar plan in your State and encourage you to contact your State NELA representatives with suggestions on topics of interest and offers of support or involvement


24th Annual Victorian Planning and Environmental Law Association (VPELA) Dinner

VPELA and the National Environmental Law Association take pleasure in inviting you to VPELA's 24th Annual Dinner.
When: 7pm until midnight, Friday, 3 May
Where: Palladium at Crown, 8 Whiteman Street, Melbourne
Cost: Members and partners, $200 per head; non-members, $240 per head
It’s not too late to join us, however registration is essential. For more information or to register, please click here.


Member profile: Hao Zhang
PhD candidate, Centre for Resources, Energy and Environmental Law and Asian Law Centre, University of Melbourne

Hao Zhang is currently a PhD candidate at the Centre for Resources, Energy and Environmental Law (CREEL) and the Asian Law Centre (ALC) at the Melbourne Law School, University of Melbourne. Hao's PhD research looks at climate change law and governance, focusing on the regulatory design of the emissions trading pilot schemes in China.

Hao’s career in environmental law began in 2007, when he undertook an internship with the Parliamentary Renewable and Sustainable Energy Group and Combined Heat and Power Association in London as part of the UK/China Graduate Work Experience Program. During the program, Hao was involved in organising seminars and conducting research into the policy and law of renewable and sustainable energy in the UK and he found himself fascinated by this area of law. He had the opportunity to talk to plenty of great minds at receptions at the House of Commons and the House of Lords, and overall found his horizon in this specific area of environmental law significantly broadened by the experience.

Also in 2007, Hao was the youngest delegate for the UNEP Eco-Peace Leadership Programme and he was awarded the Highest Prize for his research paper, which examined the use rights conflict during the process of development and management of forest parks in China, in 2008. He was also a Chinese delegate at the Forum for American/Chinese Exchange at Stanford University in 2011.

Hao holds Bachelor and Master degrees in law and publishes in the areas of environmental law, renewable energy law and climate law and policy in China. While completing his Masters by research in China, he was actively involved in a project which explored the relationship between and the problems of administrative and criminal enforcement of Chinese environmental laws and regulations and in a forestry carbon offset and low carbon strategy project which examined the role of the forestry sector in mitigating climate change by critically examining the regulatory design of the forestry law.

Hao has only recently joined NELA, after being presented with a complimentary membership as a thank you for his presentation, Establishing a national emissions trading program in China through regional experimentations: Challenges and prospects, at the recent NELA national conference.


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Law and policy developments

In the courts


Alcock v Commonwealth of Australia [2013] FCAFC 36 - Alcock was an abalone fisherman granted a licence prior to the National Parks (Marine National Parks and Marine Sanctuaries Act) 2002 (Vic) (the Marine Parks Act). The licence allowed fishing in certain waters, excluding certain marine parks and reserves. The Marine Parks Act increased the area of marine parks and reserves and Alcock argued that economic and other loss was suffered by him as a result and that the Victorian government had acquired his property by varying his rights under the licence. He also challenged certain sections of the Marine Parks Act on the basis they were outside the Victorian government’s legislative powers and conflicted with Commonwealth laws.

The Federal Court found the Victorian government had not acquired any property from Alcock, and that it has full legislative power and authority to manage fisheries. The Victorian government’s power to validly create and modify rights related to marine parks and reserves was confirmed, as the government has property and title in the seabed where they are located. Due to Victoria’s total legislative powers the Court also confirmed that there would not be any conflict with Commonwealth laws.


New South Wales

Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48 - merit appeal in which the Chief Judge of the Land and Environment Court refused development consent to the expansion of Rio Tinto’s Warkworth coal mine in the Hunter Valley, on the basis that the project’s significant social and environmental impacts outweighed the economic benefits of the project. Discussion of this decision, which is significant in relation to the balancing process in development assessment, endangered ecological communities and biodiversity offsetting, social impacts of mining on a rural village, and economic tools in development and impact assessment can be found here.

Environment Protection Authority v Hanna [2013] NSWLEC 41 - although the Land and Environment Court of NSW regularly determines pollution-related matters in its criminal jurisdiction, it is very rare for custodial sentences to be given. In this case, the operator of a waste transport business was found guilty of contempt for dumping a number of loads of waste containing asbestos at a property not licensed to accept such waste in defiance of a court order. He received a 3 month suspended sentence, on condition of compliance with a good behaviour bond, and was ordered to pay the EPA’s costs.



Tarkine mine decision challenged - the Tarkine National Coalition has commenced judicial review proceedings challenging the decision by the Federal Environment Minister to approve a large magnetite and hematite mine in the Tarkine. The proposed mine at Nelson Bay in north west Tasmania was approved in December 2012, subject to a range of conditions addressing potential impacts on the Tasmanian Devil. The application for review alleges that the Minister failed to apply the precautionary principle and that conditions requiring financial contributions to Save the Devil research and refuge centres do not adequately address the threats to the species presented by mining operations. The Federal Court will hear the application in September 2013.


In the legislature


Environmental Protection (Greentape Reduction) and Other Legislation Amendment Act 2012 (Qld) - this Act, which amends the Environmental Protection Act 1994 (Qld) and related legislation to streamline the approval process for environmental authorities, introduce a licensing model proportionate to environmental risk and introduce flexible operational approvals, while maintaining environmental outcomes, is now in force.


South Australia

Wilderness Protection (Miscellaneous) Amendment Act 2013 (SA) - this Act, which amends the Wilderness Protection Act 1992 (SA) and the National Parks and Wildlife Act 1972 (SA), has recently received assent. When in force the Act will, among other things, prohibit a number of activities within wilderness protection areas or zones without a licence from the Director of National Parks and Wildlife, including conducting scientific experiments and activities of any kind for the purpose of fundraising or making a profit.



Mineral Resources Development Amendment Bill 2013 (Tas) - this Bill, passed by the House of Assembly on 17 April 2013, will amend the Mineral Resources Development Act 1995 (Tas) to make a range of technical changes to improve the operation of the legislation, including the introduction of a new licence category to allow for production of geothermal, CSG or petroleum resources should they be discovered in Tasmania. Additional amendments proposed by the Tasmanian Greens to expand standing to object beyond those people with a proprietary interest were not supported by Labor or Liberal members.

Plastic Shopping Bags Ban Bill 2013 (Tas) - this Bill, passed by the House of Assembly on 18 April 2013, will ban non-biodegradable plastic shopping bags in Tasmania from 1 November 2013, in a move which would be consistent with bans in South Australia, the ACT and the Northern Territory. The ban will not apply to biodegradable plastic bags, heavier “boutique-style” plastic bags that can be re-used, re-usable “green” bags, and thin-film barrier bags used to wrap prepared foods and fruit and vegetables.


Policy developments


Carbon Credits (Carbon Farming Initiative) Amendment Regulation 2013 (No B) - the Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education has released an exposure draft of this regulation which is available here. The regulation is expected to be finalized in the first half of 2013.

The National Plan for Environmental Information - this Plan aims to gather and disseminate comprehensive, trusted and timely environmental information to enable governments, industry and the community to make sound decisions about major issues affecting natural assets.
The final report of the Independent Review of Australian Government Environmental Information Activity has just been released and the Department will now consider its findings and recommendations for the purposes of developing the Plan’s long term strategy.
For more information about the Plan, click here.


New South Wales

White Paper: A New Planning System for NSW – this NSW Government White Paper, which details the new planning system which is to replace the one currently in force under the Environmental Planning and Assessment Act 1979 (NSW), has recently been released. The White Paper discusses community participation, strategic planning and State, regional, and local levels, as well as planning for infrastructure, a new approach to development assessment, and building regulation and certification. Further information about the white paper can be found here.

Discussion paper: A New Local Government Act for NSW – this discussion paper proposes a rewrite of the Local Government Act 1993 (NSW) and the City of Sydney Act 1988 (NSW). The Minister for Local Government has appointed a four member Local Government Acts Taskforce to develop new legislation. A copy of the discussion paper can be found here. The terms of reference for the taskforce can be found here.



The Tasmanian Minister for Climate Change, Cassy O’Connor, has released an issues paper entitled Low Carbon Tasmania. The issues paper proposes action to be taken in nine key areas, including renewable energy, reducing emissions and carbon offsets, to mitigate the impacts of climate change.
Submissions are invited and will be accepted until 5pm, 21 June 2013. For more information or to make a submission, please click here.


Government response to Potentially Contaminated Land Advisory Committee report - the Victorian Minister for Planning has just released the State Government’s response to the recommendations of the Potentially Contaminated Land Advisory Committee. The Advisory Committee report, which provided a number of practical and simple ways to improve clarity and address gaps in the regulatory framework surrounding potentially contaminated land, was received favourably by the Government. Among other recommendations to be adopted by the Government, old service stations, factories and contaminated sites in Victoria that pose potential risk to human health and the environment will be audited. The report, and the Government’s reponse, are both available here.


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From NELA’s partners


(UK) Proposed ‘growth duty’ for non-economic regulators
The UK’s Coalition Government has just consulted on a proposed duty on non-economic regulators to have regard to growth and the economic impact of their actions (a copy of the consultation paper is available here). Environmental groups have expressed concerns that this could weaken protection of the environment in the UK. The particular question of how the duty would mesh with current environmental legislation, and proposals for a sustainable development duty (in Wales) and sustainable economic growth duty (in Scotland) was raised in a submission by the UK Environmental Law Association, a copy of which is available here.


Events offered by NELA’s partners and friends often provide substantial savings for NELA members - so check them out and make the most of your NELA membership!

(NZ) 11th IUCN Academy of Environmental Law Colloquium


The prestigious 11th IUCN Academy of Environmental Law Colloquium will be held on 24–28 June 2013 at the Academy of Performing Arts, University of Waikato, Hamilton, New Zealand and is the premier international environmental law conference worldwide.

The Colloquium is supported by NELA and NELA members are entitled to register at IUCN member rates (with savings of up to $200 on a full registration). Early bird registration closes on 15 May 2013 and places are limited so register today to avoid disappointment.

For more information about the Colloquium, including the program, and to register, click here.


(Aus) ACIUCN Science Informing Policy Symposium Series - The Future of Australia's Marine Environment

When: 12–13 June 2013
Where: Leopard Room, Melbourne Zoo

This two day symposium is the fourth in a series which the Australian Committee of the International Union for Conservation of Nature (ACIUCN) is organising in partnership with the Nature Conservancy, the Australian Conservation Foundation and Parks Victoria to convene experts from across government, academic and NGO sectors to discuss strategic conservation issues.

In a collegiate environment we shall discuss the future of Australia’s marine environment in the context of the global outlook for marine conservation and key issues such as the better management of our most productive marine areas, the challenge of managing large and remote marine protected areas, the challenge of the resource development boom for protecting our species and ecosystems and how to build constituencies of support and partnerships, including Indigenous management of Sea Country, for marine conservation.

For more information or to register, please contact Penelope Figgis by email or
telephone 0416 364 722.


(UK) 25th Anniversary UK Environmental Law Association (UKELA) Conference
The Next 25 Years: The future for environmental law

This upcoming UKELA conference includes a number of international speakers including Professor Jonas Ebbesson (Chair of the Aarhus Compliance Committee), Sibylle Grohs (Compliance Promotion, Governance and Legal Issues, DG Environment, European Commission) and Jeffrey Gracer (Principal, Sive Paget & Riesel; Chair of the New York Bar Environmental Law Committee).

When: 12–14 July 2013
Where: Cambridge University, UK

There will be discussions involving practitioners and breakout sessions including biodiversity; sustainable development; climate change mitigation in China; marine management and costs in environmental cases.

For more information or to register, please click here. NELA members are eligible for a discount on the full residential package; to learn more about this discount, please contact us.


(NZ) Resource Management Law Association Conference 2013
Black and White Gold – Does it all Glitter?

When: 26-28 September 2013
Where: New Plymouth International Quality Hotel and Conference Centre.

RMLA’s annual conference will continue the quest to reconcile economic opportunity and environmental protection using two industries of central relevance to the Taranaki Region, petroleum and dairy, as case studies.

The conference program is at an advanced stage of development and sponsorship opportunities are currently on offer. For more information, click here.


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Other events

(NSW) NSW Government’s White Paper – A new planning system for NSW
community forums

The NSW Government will be holding a series of community forums across metropolitan Sydney and regional NSW to get community feedback on its White Paper – A new planning system for NSW.
The first two community sessions are being held tonight, 2 May 2013, at Hornsby RSL Club and Castle Hill RSL Club from 6–7.30 pm.

To find out where the other events are being held, and to register for all events, click here.


(NSW, NT, QLD) Australian Wild Law Alliance (AWLA) – upcoming events
Wild Law is a legal theory and social movement which proposes that we rethink our legal, political, economic, and governance systems so that they support, rather than undermine, the integrity and health of the Earth. The Australian Wild Law Alliance is holding events in Sydney, Darwin and Brisbane in 2013:

For more information about each event, or to RSVP, please click here


(VIC) Separation Distance Guidelines seminar
This information session will see four experts from the EPA, DPCD and Freehills present on the EPA’s now-finalized Recommended separation distances for industrial residual air emissions guideline, covering the referral authority, State Government and planning law angles.

This new guideline, released in early 2013 following last year’s consultation workshop, provides advice on recommended separation distances between industrial land uses that emit odour or dust, as well as sensitive land uses. It replaces EPA publication AQ 2/86, Recommended buffer distances for industrial residual air emissions 1990.

The session will include an audience Q&A as well as a networking session with drinks and canapes.

When: 5.30pm – 7.30pm, Thursday, 16 May 2013
Where: Freehills, 42/101 Collins Street, Melbourne
Cost: $70

For more information or to register, click here.


(UK) Wildlife, Wilderness and Wild Law weekend
When: 24–27 May 2013
Where: Loch Lomond and the Trossachs National Park in Scotland

There are still some places available for this weekend. Click here for more detail about the weekend including costs and accommodation and to book your place.


(UK) Garner Lecture 2013: The Common Laws of the Environment: At home and abroad
Lord Carnwath JSC, who is the President of UKELA and the Planning and Environment Bar Association, is giving this year’s Garner lecture.

When: 6pm, 19 November 2013
Where: To be confirmed

The lecture is being held as a partnership with the Journal of Environmental Law and videolinks will be available. Please note the date in your diary. Bookings will open in September.


(Fiji) 9th Pacific Islands Conference on Nature Conservation and Protected Areas
Natural Solutions: Building Resilience for a Changing Pacific

Registrations are now open for this conference.

When: 2 – 6 December 2013
Where: University of the South Pacific, Suva, Fiji

For more information or to register, please click here.


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Opportunities for Comment


Draft COAG regulation impact statement for consultation on the regulation of water market intermediaries

Stakeholders in the water sector have expressed concern about the potential for the conduct and practices of water market intermediaries to impact on irrigators and other water market participants; this regulation impact statement outlines the problem and four response options (no action, publication of additional guidance material, a voluntary accreditation scheme and a mandatory licensing scheme) and provides a preliminary impact analysis of each of these options.

Submissions are invited until 7 June 2013. For more information or to make a submission, click here.

New South Wales

Draft Metropolitan Strategy for Sydney
The NSW government is seeking public feedback on its draft Metropolitan Strategy for Sydney, which builds on the Government’s May 2012 Issues Paper and sets out a new plan for the city’s future over the next two decades.

Submissions are invited until 31 May 2013. For more information or to make a submission, click here.

Local Government Acts Taskforce
A rewrite of the Local Government Act 1993 (NSW) and the City of Sydney Act 1988 (NSW) has been proposed. The Minister for Local Government has appointed a four member Local Government Acts Taskforce to develop new legislation. A copy of the taskforce’s discussion paper can be found here.

Submissions on the discussion paper are invited until 28 June 2013. For more information or to make a submission, click here.


Draft Wet Tropics Water Plan
The Queensland Government seeks public feedback on its draft plan to establish a robust water allocation and management framework for the Wet Tropics region. The draft plan allows for the continued use of all existing entitlements and authorised works to take surface water and groundwater, defines water allocation security objectives and clearly specifies entitlements and environmental flow objectives. It also provides for the protection of water dependant ecosystems and improved monitoring strategies to establish how effectively the plan’s outcomes are being achieved.

Submissions are invited until 15 May 2013. For more information about the draft Plan or to make a submission, click here.



Volunteer contributors—NELA Bulletin

NELA seeks volunteers to contribute to the law and policy developments section of the NELA Bulletin for all States and Territories except NSW, and for the Commonwealth. Estimated time commitment is around 1-2 hours a month.

Please contact Ellen Geraghty by email or mobile 0407 459 490 for more information.



Peter Cullen Trust Science to Policy Leadership Program 2013
Applications are now open for the Peter Cullen Trust’s 2013 Science to Policy Leadership Program.
The closing date for applications for employer-funded applicants is 5pm, 1 July 2013.

For more information or to apply for this program, click here.


IUCN World Conservation Congress 2016: expressions of interest sought
The IUCN seeks expressions of interest from State and Government agency members to host the IUCN World Conservation Congress 2016.

The deadline for expressions of interest has been extended to 15 May 2013 with full bidding documents due 12 September 2013.

For more information, please click here.


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Book: Guidelines for Landscape and Visual Impact Assessment, 3rd Edition, by the Landscape Institute and the Institute of Environmental Management and Assessment

Landscape and Visual Impact Assessment (LVIA) can be key to planning decisions by identifying the effects of new developments on views and on the landscape itself.

This fully revised third edition of the industry standard work on LVIA presents an authoritative statement of the principles of assessment. Offering detailed advice on the process of assessing the landscape and visual effects of developments and their significance, it also includes a new expanded chapter on cumulative effects and updated guidance on presentation.

Written by professionals for professionals, the third edition of this widely respected text provides an essential tool for landscape practitioners, developers, legal advisors and decision-makers.

For more information or to purchase a copy direct from the publisher, click here.