Law and policy developments
In the legislature
Environment Protection and Biodiversity Conservation Amendment (Alpine Grazing) Bill 2014
In 2011 the Victorian Government allowed a ‘scientific trial’ of alpine grazing by cattle in Alpine National Park to investigate the effect of grazing on fire fuel reduction. This trial was ended after intervention from the Federal Environment Minister.
In March 2014, Federal Environment Minister Greg Hunt approved another trial of grazing in Alpine National Park, which is a declared National Heritage place, and contains many threatened and endangered species listed by the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
Given the significant impact that grazing is having on threatened and endangered species in Alpine National Park at the time of introduction of this Bill, the Bill removes any doubt as to the application of Commonwealth environmental law on this activity, and requires cattle to be removed from the park.
EPBC Act amendments
On 14 May 2014, the Federal Government tabled the Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014 (the Bill). The Bill seeks to amend the EPBC Act to allow approval of large coal mining and coal seam gas developments that are likely to have a significant impact on a water resource to be delegated to State governments. The Bill also seeks to allow assessment and approval powers to be further delegated by State governments to other agencies, including local governments.
A second Bill, the Environment Protection and Biodiversity Conservation Amendment (Cost Recovery) Bill 2014 was also introduced. This Bill would allow the cost of environmental assessments and strategic assessments undertaken after 1 July 2014 to be recovered from the proponent.
Both Bills have been referred to the Senate Environment and Communications Committee to consider the potential impacts of delegation, maintenance of high environmental standards and the impacts of cost-recovery on assessment processes. The Committee is expected to report by 23 June 2014.
New South Wales
Mining and Petroleum Legislation Amendment Act 2014 (cognate with the Criminal Assets Recovery Amendment Bill 2014)
This Act recently received assent and amends mining, petroleum and planning laws to address further issues raised in the ICAC’s reports on investigations into mining licences in NSW. The amendment introduces a power to cancel, or refuse to grant or renew, a mining right or petroleum authority if the applicant is not a "fit and proper person". The test will also enable refusal to transfer a mining right or petroleum title, to cancel or suspend operations under a mining right or petroleum title and to impose conditions or restrict operations under a mining right or petroleum title.
Environmental Offsets Act 2014
The Environmental Offsets Act 2014 was assented to on 28 May 2014. The main purpose of the Act is to ‘counterbalance the significant residual impacts of particular activities on prescribed environmental matters through the use of environmental offsets’ (section 3 (1)). The Act is accompanied by the Queensland Environmental Offsets Policy, which commences with the legislation. This policy will replace a number of more specific offset policies.
Legislation to ‘rip up’ Forestry Agreement introduced
On 8 May 2014, the Tasmanian government introduced the Forestry (Rebuilding the Forest Industry) Bill 2014 (Tas). The Bill, designed to repeal the Tasmanian Forests Agreement Act 2013
(Tas), will impose a 6 year moratorium on harvesting in “future potential production forest” (previously reserved land). Significantly, the Bill also introduces a number of provisions which will effectively limit the protection of reserved land, including:
exemptions to allow special species harvesting in reserved areas;
allowing future potential production forest land to be ‘exchanged’ for other unreserved land, without any clear restrictions on how such exchanges will be assessed;
requiring any new reserve declarations to be approved by two-thirds of each House of Parliament (rather than the simple majority currently required).
The Bill is expected to pass in the Lower House in early June, despite not having the support of Labor or the Tasmanian Greens.
In the courts
New South Wales
Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc  NSWCA 105
The Court of Appeal NSW has refused an appeal by Warkworth Mining Limited against the first instance judgment of Preston CJ.
Preston CJ’s judgment was the first time a judge of the Land and Environment Court had refused, in a merit appeal, to grant approval to a coal mining development. His judgment was upheld unanimously by Bathurst CJ, Beazley P and Tobias AJA. The court rejected Warkworth’s 13 grounds of appeal, including contentions that:
Warkworth had been denied procedural fairness in respect of a number of factual matters relating to their application,
Preston CJ of LEC had erred in law:
by failing to give weight to the Director-General’s report, and the recommendations contained therein, as a ‘focal point’ or ‘fundamental element’ in his determination as to whether to grant approval to the application,
- by failing to have regard to the Mining Act 1992, which was relevant legislation under the Court Act, s.39(4).
Federal court dismisses challenge to Tarkine mine
The Federal Court has dismissed an application by the Tarkine National Coalition (TNC) for review of the former Federal Environment Minister’s decision to approve Venture Minerals’ Riley Creek mine. TNC argued that the Minister had failed to properly consider the cumulative impacts of the mine and other projects proposed in the Tarkine, and had failed to give adequate consideration to additional permit conditions imposed by the Tasmanian Resource Management and Planning Appeal Tribunal. Justice Tracey rejected both arguments, noting that the Minister was not required by the EPBC Act to consider cumulative impacts. However, his Honour did note, contrary to the findings of the Tribunal, that the EPA could consider cumulative impacts in its assessment under the Environmental Management and Pollution Control Act 1994 (Tas).
The full Judgment is available here. The parties have made submissions in respect of whether TNC should be required to pay costs.
Marsh v Baxter  WASC 187
The Supreme Court of Western Australia has ruled against Mr Marsh who sought damages and a permanent injunction against hi neighbour, Mr March for allegedly contaminating his organic farm with genetically-modified (GM) canola. According to Mr Marsh, Baxter breached his duty to take reasonable care to ensure that GM canola was not transferred (by being blown or carried) on to his adjoining property, and that failure to exercise reasonable care caused Mr Marsh to suffer economic loss.
In his decision, Justice Kenneth Martin concluded that that Baxter could not be held responsible just for growing a GM crop in a conventional way, that wind blowing some swathes of canola onto Marsh’s property was not intentional, and that Baxter was not to be held responsible as a broadacre farmer merely for growing a lawful GM crop and choosing an entirely orthodox harvesting method.
Policy developments and other news
New South Wales
Watermark Coal Project to be assessed by Planning Assessment Panel (PAC)
The Watermark Coal Project proposed by Shenhua, located 25kms south-east of Gunnedah and covering nearly 10,000 hectares of land, will be assessed by the Planning Assessment Panel despite the NSW Mining and Petroleum Gateway Panel recommending that it not proceed until the company correctly identifies the amount of strategic agricultural land that'll be affected and the long-term risks to water quality in nearby creeks and aquifers.
Further detail is available here.
Draft Wind Farm State Code
The Queensland government has released a draft code to apply to the assessment of wind farm developments. The code will require development to a number of requirements, related to safety, electromagnetic energy levels, noise levels, amenity, and the environment. Some of the crucial requirements include that development:
must be sited, designed and operated to avoid and minimise impacts on flora and fauna, including bird and bat collisions, and vegetation clearance,
does not result in unacceptable levels of nuisance from audible noise emissions, and from low frequency noise emissions,
does not adversely impact on landscape character, landscape values or view sheds of significance.
An associated draft guideline has been released to assist with application of the draft code.
The content of the final Code is currently under consideration, and is expected to commence in mid-2014.
More detail is available here.
Reports critical of government request to de-list World Heritage forests
On 15 May 2014, the Senate Environment and Communications Committee released its Report for the inquiry into the Federal government's proposal to reduce the Tasmanian Wilderness World Heritage Area (TWWHA) by 74,000ha. The Report recommended that the government withdraw the boundary modification request, noting that claims that the forest areas are degraded are “unsubstantiated and inaccurate” and the request to reverse a decision made by the World Heritage Committee only 11 months earlier had the potential to cause international embarrassment. The Report also urged the government to assess the Aboriginal cultural heritage values of the additional areas by February 2015 (as requested by the World Heritage Committee).
The Government representatives on the Committee issued a dissenting report noting: “The Australian Government will honour its forestry election commitments in Tasmania to ensure the industry is sustainable in the long-term and is not hampered by self-interest groups.”
On 17 May 2014, the International Union for the Conservation of Nature (IUCN), an expert body advising the World Heritage Committee, released its technical evaluation report, recommending that the Australian Government’s request to remove 74,000 ha from the TWWHA be rejected. The IUCN’s report was very critical of the proposal, describing the government's election promise to wind-back the earlier World Heritage extension as "clearly inappropriate". The IUCN also noted that removing the requested area “would impact negatively on the Outstanding Universal Value of the property."
The Federal government has confirmed that it will continue to seek to wind back the extension.
Tasmanian Planning Reform Taskforce announced
The Tasmanian government has appointed a Tasmanian Planning Reform Taskforce to advise the government on reform of Tasmania’s planning system, including the implementation of the election commitment to develop a single, state-wide planning scheme.
Liberal government will not ban 1080
Consistent with the Tasmania Together goals, developed following extensive community consultation, the former Labor government had committed to phasing out the use of 1080 poison for animal control by 2015. The new Minister for Primary Industries, Hon Jeremy Rockliff MP, has announced that the Liberal Government will not implement the 2015 ban, instead investigating options to expand the use of the poison. 1080 use is currently regulated by the Department of Primary Industries, Water and Environment pursuant to the Poisons Act and a Code of Practice.
Victoria axes energy efficiency scheme
The Victorian Government announced in May 2014 that it will abolish the Victorian Energy Efficiency Target Scheme (VEET) and introduce legislation to close the scheme at the end of 2015. The scheme was originally set up to reduce greenhouse gas emissions and encourage investment, employment and technology development in industries that supply goods and services that reduce the use of electricity and gas by consumers.
The Government’s decision to close the scheme was informed by a business impact assessment (BIA) which was prepared in-house by the Department of State Development and Business Innovation, with assistance from external consultants. The BIA states that reducing greenhouse gas emissions is “no longer a core objective of the Victorian Government”, as it is a Federal responsibility, and it therefore does not place any beneficial value on the abatement delivered by the VEET scheme.
The plan to abolish the VEET contrasts with moves by the NSW Government to strengthen its equivalent Energy Savings Scheme.
Waste management policy for storage of waste tyres
The Victorian Government gazetted an interim waste management policy on 30 April 2014. The policy applies to premises that store the equivalent of more than 5,000 waste passenger vehicle tyres or more than 40 tonnes of waste tyres. It requires that waste tyres on these premises must:
only be stored for purposes such as transfer, reuse, recycling, reprocessing or energy recovery, and
ensure that waste tyres are stored in a manner that minimises risks to the environment and human health, predominantly due to the risk of fire.
The policy is particularly targeted at addressing high risk stockpile sites in preparation for the 2014/2015 fire season. It is also a response to moves by NSW to strengthen its regulation of waste tyres and resulting concerns that tyre stockpiles will grow in Victoria as a result of it not having effective regulatory requirements in place for the management of waste tyres. The policy will expire on 29 April 2015.
More information is available here.
Development contributions reforms announced
On 1 May 2014 the Minister for Planning, Matthew Guy, announced reforms in relation to the development contributions regime in Victoria. Development contributions are used in Victoria’s planning system to enable contributions towards additional infrastructure (e.g. community facilities, roads and open space) required as a result of the use and development of land.
The reforms will directly affect greenfields or infill developments in “strategic development areas” in metropolitan Melbourne or regional Victoria, and include:
the introduction of Standard Levies for development contributions in priority growth locations (which will be available for use from 1 July 2015)
the implementation of a new Infrastructure Contribution Plan (ICP), which is a new tool with which development contributions will be levied in priority growth locations, and
a streamlined approval process to implement the Standard Levies through local planning schemes and deliver substantial savings in approval time.
A detailed implementation package will be prepared to support the introduction of the reforms and will include legislation to amend the Planning and Environment Act 1987 (Vic), a new Infrastructure Contribution Overlay and the release of various guidance materials.
More information is available here.
Plan Melbourne finalised
On 19 May 2014 the Victorian Government released the new city shaping strategy to 2050, Plan Melbourne. The strategy focuses on implementation, proposing a new Metropolitan Planning Authority, dedicated to implementing the long-term strategic vision for Melbourne which includes efforts to improve the city’s efficiency and liveability.
More information is available here.
Commencement of Independent Assessment of Browse Basin Gas Hub
The WA EPA, with the approval of the Minister for Environment, has delegated its powers under Part IV of the Environmental Protection Act 1986 (WA) to assess the Browse Basin Gas Hub strategic proposal to three delegates who have had no previous involvement in this matter. This follows an August 2013 Supreme Court finding that there had been no valid assessment of the Minister for State Development’s strategic proposal and no valid report on that assessment.
Further details of the assessment and subsequent process are available here.
WA EPA to assess extended shark drum-line proposal
The WA EPA has set a Public Environmental Review (PER) level of assessment on the WA Shark Hazard Mitigation Drum Line Program 2014–2017 with a four-week public submission period.
The proposal involves the temporary setting of up to 72 baited drum lines off metropolitan and south-west coastal regions of WA for four and a half months each year for three years, commencing November 15, 2014 and ceasing April 30, 2017, after which the program would be subject to review.
Unlike this summer’s 13-and-a-half week drum-line program, the EPA will need to undertake a detailed assessment of the environmental impacts, including the cumulative impacts of implementing a 22-week program every year for three consecutive years to determine whether or not the EPA’s objectives for marine fauna can be met.
Further details are available here.
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