Law and policy developments
In the courts
Venture Minerals mine approved in Tarkine
On 24 September 2013, the Resource Management Planning and Appeal Tribunal dismissed an appeal by the Tarkine National Coalition and confirmed approval for Venture Minerals’ proposed hematite mine in the Tarkine. Significantly, the Tribunal held that the EPA was neither required nor able to consider cumulative impacts as part of its assessment. Subject to additional conditions restricting vehicle movements to daylight hours and more detailed sediment and erosion control measures, the Tribunal was satisfied that the impacts of the proposed mine, including on threatened Tasmanian devil populations, could be appropriately managed.
The Tarkine National Coalition has not appealed against the decision, but has commenced review proceedings in the Federal Court regarding the Federal Minister’s approval of the mine under the Environmental Protection and Biodiversity Conservation Act 1999.
A copy of the decision is available here. A more detailed overview of the case will be published in the next edition of the National Environmental Law Review.
McDonald v Hepburn Shire Council (Red dot)  VCAT 1538
This decision is the latest in a line of decisions where the Victorian Civil and Administrative Tribunal was asked to assess a proposed dwelling/wastewater treatment facility in a water catchment area.
As a threshold issue, the Tribunal found that the Guidelines for Permit Applications in open potable water supply catchments 2012 (2012 Guidelines) applied, notwithstanding that the relevant permit trigger only arose under a secondary rather than a primary zoning control of the Hepburn Shire Council’s Planning Scheme. It was common ground that the local conditions were such that the proposal would exceed the preferred dwelling density under the 2012 Guidelines of ‘1 dwelling per 40 hectares’.
In refusing the proposal, the Tribunal re-affirmed the precautionary principle. It also emphasized the need for full compliance with all conditions of the 2012 Guidelines where a Council or water corporation is assessing a proposal that would exceed the preferred 1:40 density.
In the legislature
New South Wales
Planning Bill 2013 and Planning Administration Bill 2013 introduced into NSW Parliament
The NSW Government has introduced the Planning Bill 2013 and its cognate, the Planning Administration Bill 2013, into Parliament. This follows the Government’s Green Paper and White Paper on a New Planning System for NSW, which were open for public comment in 2012 and 2013.
The Bills have been passed by the Legislative Assembly and are expected to be debated in the Legislative Council in the second week of November.
Copies of the Bills, and details of the passage of the Bills through Parliament, are available here.
Coal Seam Gas Prohibition (Sydney Water Catchment Special Areas) Bill 2013
This Bill has been introduced to the Legislative Assembly by the NSW Opposition and, if passed, will prohibit coal seam gas exploration or mining in the Sydney Catchment Authority’s special areas.
For a copy of the Bill, and to follow the progress of the Bill through Parliament, click here.
Game and Feral Animal Control Amendment Act 2013
This Act, which amends the Game and Feral Animal Control Act 2002 to abolish the Game Council, recently received assent and is awaiting commencement on a day or days to be appointed by proclamation.
The Act is available here.
Pastoral Land Amendment Bill 2013
This Bill passed the Northern Territory Legislative Assembly on 17 October 2013.
The purpose of the Bill is to provide the Pastoral Land Board (the Board) the necessary powers to issue a non-pastoral use permit for a period of up to 30 years or in the case of a Term Pastoral Lease until the expiry date of the lease.
The Bill provides for non-pastoral use permits to be registered against the pastoral lease title as an instrument transferable with the lease. The permit provides for “non-pastoral purposes” or activities to be carried out on the lease area. There is no definition of non-pastoral purposes, however it is anticipated such purposes will include a range of primary production activities including agriculture, cropping, forestry, horticulture and potentially aquaculture.
The Bill gives the Board the necessary legislative powers to administer the provisions. The Board is required to take into account government policy, the potential impact on the environment and comply with the future act provisions of the Native Title Act 1993 when making a decision concerning the grant of a permit.
Environment is not defined although the Board is required to act consistently with and in furtherance of the objects of the Act, which include the “sustainable use” of the lease area.
Northern Territory Environment Protection Authority Act 2012
This Act commenced on 1 January 2013. It established a new, independent Northern Territory Environmental Protection Authority (the NT EPA) with responsibility for the environmental impact assessment process in the Territory.
The Act incorporates the principles of ecologically sustainable development (ESD) in the environmental impact assessment process for the first time in the Northern Territory although to a limited extent. Under the Act, the NT EPA can make decisions as to whether an action has a significant impact on the environment, the type of environmental impact assessment to be undertaken, and provide an assessment report to the action Minister concerning the environmental impact of the proposed development. These functions are to be carried out in accordance with ESD principles. The action Minister has no explicit requirement to apply ESD principles when making an approvals decision.
Port Pirie Smelting Facility (Lead-In-Air Concentrations) Act 2013
This Act will provide regulatory certainty for a proposed $350 million transformation of the Port Pirie smelter to a cleaner, state-of-the-art poly-metallic processing and recovery facility by its owner, Nyrstar, by setting the maximum lead-in-air conditions under the Environmental Protection Agency operating licence after completion of the project.
This regulatory certainty will enable Nyrstar to obtain the investment it needs to carry out the project and also ensures a healthy environment for the people of Port Pirie, as well as the economic benefits that the upgraded smelter will provide.
A copy of the Act is available here.
Forest Management Act 2013
This Act was passed by the Upper House on 17 October 2013. The Act will repeal and replace the Forestry Act 1920, and be more consistent with the management arrangements outlined in the Tasmanian Forests Agreement Act 2013.
Forestry Tasmania will retain all its current responsibilities for “permanent timber production zone” land (formerly State forest). In particular, Forestry Tasmania retains powers in relation to:
The Forest Management Act 2013 also provides for specified forest reserves to be revoked and declared as regional reserves or conservation areas under the Nature Conservation Act 2002. Parks and Wildlife will be responsible for ongoing management of the former forest reserves.
Land Use Planning and Approvals (Developments on Mount Wellington) Amendment Bill 2012
Currently, an application for development on Hobart’s iconic Mount Wellington cannot proceed without the approval of the Wellington Park Management Trust, a statutory authority comprising representatives of National Parks and Wildlife, local councils, the water authority and Tourism Tasmania.
Citing difficulties in progressing tourist developments on Mount Wellington, Tasmania’s shadow Planning Minister introduced the Land Use Planning and Approvals (Developments on Mount Wellington) Amendment Bill 2012, seeking to remove the requirement for the Trust’s approval. The Bill would require a planning authority considering an application for a development within Wellington Park to “take into account the standards, values and conditions set out in the Wellington Park Management Plan.”
The Bill was passed by the Lower House on 17 October 2013, a result welcomed by advocates of a proposed cable car development on Mount Wellington. The Bill will now be debated in the Upper House. Progress of the Bill can be followed here.
New South Whales
Initiatives to deliver on Strategic Regional Land Use policy
The Government recently announced changes which deliver key elements of its Strategic Regional Land Use Policy while ensuring a strong resources industry.
The initiatives include Statewide mapping of the most valuable farmland in NSW; establishment of an independent Gateway Panel to scientifically analyse mining and CSG proposals on this land; the establishment of current and proposed CSG exclusion zones; and revised mapping of key horse breeding and wine making land in the Upper Hunter.
A number of these initiatives are being exhibited for public comment and the Government encourages community feedback.
Further information is available here.
Strategy to improve Victoria’s river health
A new eight-year strategy designed to improve the health of Victoria’s rivers, estuaries and wetlands has been launched by the State government.
The Victorian Waterway Management Strategy aims to improve the health of the waterways so they can continue to provide the environmental, social, cultural and economic values that are important to everyone. It provides direction for regional decision-making, investment and management issues for waterways, as well as the roles and responsibilities of management agencies.
The strategy is available here.
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