Law and policy developments
In the legislature
The Government’s Omnibus Repeal Day (Autumn 2015) Bill 2015, aimed at “reducing duplication and red tape”, is currently before the Senate. It includes the following amendments to environmental laws:
abolishing the National Heritage Trust Advisory Committee (under the Natural Heritage Trust of Australia Act 1997) and combining its functions with the National Landcare Council to form the new National Landcare Advisory Committee;
abolishing the Biological Diversity Advisory Committee which was established under the EPBC Act to advise the Environment Minister.
Further information can be found in the Explanatory Note.
Further to a public commitment made by Senator Richard Colbeck on Christmas Eve, the Fisheries Management Amendment (Supertrawler) Regulation 2015 was made on 16 April 2015. The Regulations make it an offence under the Fisheries Management Regulations 1992 (Cth) for fishing vessels over 130 metres in length to engage in fishing-related activities in the Australian Fishing Zone. The maximum penalty for the new offence under s.4D is 25 penalty units, currently $4,250.
The new offence only relates to the length of the vessel and makes no reference to storage capacity. In 2012 and early 2013, the Federal Environment Minister made declarations banning the use of vessels greater than 130m in length and with an on-board storage capacity exceeding 2,000t in the Small Pelagic Fishery. Both bans have now expired.
Coalition to legislate to cap water buybacks in the Murray-Darling Basin.
Federal Environment Minister, Hon Greg Hunt MP, has announced the Coalition’s intention to bring forward legislation to cap environmental water buybacks at 1,500 gigalitres as part of the implementation of the Murray-Darling Basin Plan. The decision is a step towards fulfilling a 2011 election promise.
The announcement has received mixed responses. Some irrigators and farmers have welcomed the move, whereas others are concerned that it could reduce the value or water and provide less long-term financial security for farmers.
Planning reform response released
The South Australian Government has released its response to the final report of the Expert Panel on Planning Reform. The response makes it clear that a new Bill proposing legislation to replace the Development Act 1993 and the Urban Renewal Act 1995 (as well as, potentially, numerous other Acts) will be introduced in July 2015 with consultation to be conducted in August 2015. To read the response, click here.
The Development (Assessment) Amendment Bill 2015 has been introduced into Parliament and is currently before the House of Assembly for consideration and debate. This Bill purports to overcome a long line of case law authorities in South Australia which require land division applications to be approved and new titles to be issued for land before dwellings can be approved.
New Development Assessment Panel thresholds
From 1 May 2015, amendments to the Planning and Development (Development Assessment Panels) Regulations 2011 increase the threshold above which proposals must be referred to a Development Assessment Panel to $10M (or, if the proposed development is situated in Perth, $20M). Developers proposing projects valued between $2M and the mandatory threshold may still elect to have their proposal assessed by a DAP rather than the local government.
For more information, click here.
In the Courts
Court rules British government must deliver action plan to deal with air pollution
The UK Supreme Court has unanimously quashed the British government’s plan to reduce air pollutions and ordered the government to prepare more effective plans by the end of 2015. The Court ruled that the government must take significant steps to address diesel vehicles emissions, including introducing low emission zones, congestion charges, vehicle standards and other economic measures to mitigate emissions.
For more information on this case, click here.
New South Wales
Suspension of Metgasco’s Bentley licence invalid
The NSW Supreme Court has ruled that the NSW Energy Minister’s decision, in May 2014, to suspend an exploration licence allowing drilling in Northern NSW was unlawful.
The conditions of the licence awarded to Metgasco required the company to undertake “genuine and effective consultation with the community”. Justice Button held that the decision to suspend the licence on the basis that this condition had been breached was invalid, because:
the adequacy of Metgasco's community consultation was not a valid ground for suspending its licence to explore for coal seam gas. Only a breach of conditions relating to environmental management justified suspension under the Petroleum (Onshore) Act 1991
the government had taken an irrelevant consideration into account in determining that the consultation was “ineffective” because it failed to sway opponents. His Honour held that it was necessary to look at the consultation process, rather than the outcome of the consultation.
To read the judgment in Metgasco Limited v Minister for Resources and Energy  NSWSC 453, click here.
Site contamination a relevant factor in valuation.
The Land and Environment Court has ruled that the level of contamination at a site must be considered by the Valuer-General when calculating the site value for the purpose of imposing rates. Challenger Listed Investments had challenged a valuation notice, alleged that it overestimated the value of the site by ignoring historic contamination.
To read the judgment in Challenger Listed Investments Limited v Valuer General (No 2)  NSWLEC 60, click here.
Carmichael Coal Mine Objection
Proceedings in the Queensland Land Court relating to objection by Land Services for Coast and Country to the Adani Carmichael mine, potentially Australia’s largest coal mine, have concluded. The case examined issues concerning the climate impacts of the mine, impacts on water quality and threatened species habitat, as well as questioning projections regarding the economic impacts of the project.
For more information regarding the objections, click here.
Proceedings commence in review of Alpha Coal Mine decision
Conservation group Coast and Country has commenced judicial review proceedings against the Land Court’s decision to conditionally recommend that the Alpha Coal mine be approved. In April 2014, the Land Court noted the mine, as proposed, would have unacceptable impacts on groundwater resources and recommended that the mine be rejected outright or approved only subject to water conditions which required a precautionary approach.
Coast and Country will argue that the Land Court should have recommended outright refusal, given its conclusions regarding groundwater impacts. To find out more about the case, click here.
Policy developments and other news
Japan’s new whaling program in the Southern Ocean rejected by IWC expert panel.
On 13 April 2015, an independent expert panel convened by the International Whaling Commission released a Report rejecting a proposal by Japan to resume ‘scientific’ whaling in the Southern Ocean.
In November 2014, Japan submitted a new proposal to the Scientific Committee for a whaling programme to commence in the Southern Ocean in the 2015/16 summer. The program sought to take 330 minke whales annually over 12 years. The expert panel found that Japan failed to provide enough information to determine whether killing that volume of minke whales achieved established research objectives (population surveys and understanding the Antarctic marine ecosystem).
The decision follows the resolution passed by the IWC in September 2014, giving the International Whaling Commission’s Scientific Committee a greater role in issuing scientific permits. This was in response to the International Court of Justice’s judgment that Japan’s previous program in the Southern Ocean, JARPA II, was not for scientific purposes.
The Report will go before the IWC full scientific committee in May 2015.
Emissions Reduction Fund auctions
The first auction for the Emissions Reduction Fund, which aims to provide $2.55 billion to projects designed to abate carbon emissions, took place on 15 and 16 April 2015.
A total of 107 Carbon Abatement Contracts were awarded to deliver a total of 47,333,140 tonnes of carbon abatement. According to the Climate Energy Regulator, the total value of contracts awarded was $660,471,500 with the average price per tonne of abatement being $13.95.
The Carbon Abatement Contracts were awarded to 43 contractors covering 144 projects. The majority applied under sequestration methods, and landfill and alternative waste treatment methods. For a full list of awarded contracts and a summary of the auction results, visit the Clean Energy Regulator website.
A good overview of the outcomes is also available here.
Reports support strong action on climate change
Government consultations regarding Australia’s post-2020 emission reduction targets closed in late April. A number of recent reports have provided support for strong targets, including:
To read NELA’s submission on the post-2020 targets, click here.
Energy White Paper 2015 released
The Federal government has released its Energy White Paper which calls for a 40% boost in energy productivity by 2030. This Paper is on increasing competition, energy productivity and investment to deliver reliable and cost competitive energy to households and business. The paper argues that competition between electricity suppliers has been stifled by state government ownership of assets, and privatisation would encourage greater competition and innovation and deliver energy at the lower cost.
The Paper has been criticised for not fully considering the influence of climate change on the energy sector.
Threatened Species Summit
The Commonwealth government has announced that the first national Threatened Species Summit will be held on 16 June 2015. The summit will be chaired by the Threatened Species Commissioner, Gregory Andrews.
The summit will bring together State and Territory Ministers, relevant business leaders, scientific and conservation management experts, non-government organisations and others involved in threatened species conservation. It will aim to explore solutions and promote practical and effective ways of tackling the threats to Australia’s animals and plants. Speakers will range from local communities and scientists in the field to business people and government representatives.
Members of the public will be able to view the summit via a live webcast. For more information, click here.
Leadbeter’s possum listing upgraded
Federal Environment Minister, Hon Greg Hunt MP, has agreed to list the Leadbeter’s possum as critically endangered under the EPBC Act. A revised recovery plan will be prepared to reflect the increased vulnerability of the species.
New South Wales
New planning rules to be considered for caravans and kit home.
The NSW Department of Planning and Environment is commencing public consultations seeking feedback on ways to simplify planning rules relating to caravan parks and manufactured homes.
Details of the review, preparation of a Discussion Paper and opportunities for public feedback will be released in coming months. For more information, click here.
Land conservation bank accepted
A concept plan by Illawarra Coal to allow a large bank of conservation land to be protected to make up for future impacts of mining at the Dendrobium and Bulli Seam coal mines has been approved by the Department of Planning and Environment. The project will require Illawarra Coal to set aside a large area of land prior to commencing mining, and allow the company to use that land as a “bank” to draw on to compensate for future offsets.
For more information regarding the proposal, and the Department’s assessment of the proposal, click here
NSW Police fined $100,000 for improper disposal of waste
The NSW Police will contribute $100,000 under an enforceable undertaking with the Environmental Protection Agency after disposing of waste (including evidence such as hazardous chemicals and seized drugs) at the wrong waste facilities.
NSW Police will contribute $100,000 to the Environmental Trust to assist in developing projects that address environmental legacies such as hazardous chemical incidents and contaminated soils.
For more information, click here
Action plans to be developed for NT heritage sites
The NT Government has committed $6.1 million over three years for the development and implementation of a Northern Territory Heritage Enhancement Action Plan, including infrastructure upgrades, digital initiatives, funding support for works on private heritage places and improved museum facilities.
For more information, click here.
Aboriginal Art Auction to save EDO NT
As a result of Commonwealth funding cuts, EDO NT is at risk of imminent closure. EDO NT is the only expert non-government source of environmental law advice in the N.T for clients, including farmers and Indigenous groups, who struggle to match the resources of miners and developers.
To help keep the service open, EDO NT is running an auction with over 35 Aboriginal artworks, donated by art centres and artists including Jacky Green, Nancy McDinny and Stuart Hoosan.
The auction will be launched at the Outstation Gallery, Parap on 10 May 2015 with bidding then open until 3 June 2015. The auction will culminate in a cocktail event at Gilbert + Tobin’s Sydney office on 3 June 2015.
To find out more about the auction and check out a sample of the great artwork, click here.
Queensland government to explore biofuel opportunities
On 23 April 2015, the Queensland government announced plans to prepare a Discussion Paper regarding the potential for expanding the State’s biofuel and bio-manufacturing sectors. The government plans to require oil companies to make an ethanol blend available, as part of efforts to “steer the state towards a sustainable energy future”.
Environment Minister, Dr Steven Miles, stated that the discussion paper would complement the government’s commitment to a renewable energy study investigating a 50% renewable energy target by 2030.
The Discussion Paper is expected to be released in late May, followed by a Bill to be introduced into State Parliament to give effect to the proposals in the paper.
For more information, click here.
South Australia signs Climate Compact
South Australia has signed on to the international Compact of States and Regions, an agreement monitoring global greenhouse gas reduction targets. Established at the 2014 New York Climate Summit, the Compact represents a commitment by state and regional governments to provide an annual assessment of their emission reduction commitments and progress towards those commitments.
South Australia has committed to a 60% reduction on 1990 levels by 2050. Assessments indicate emissions are currently 10% below 1990 levels.
For more information regarding the Compact of States and Regions, click here.
Report critiques performance of Tasmanian RFA
A new report prepared by EDO Tasmania, “State forests, national interests”, provides a critical analysis of Tasmania’s forest practices laws and the RFA exemption under the EPBC Act. The report has been prepared as part of the current review of the Tasmanian RFA (see Open for Comment, below).
The report concludes that the legal framework for the assessment, approval and enforcement of logging activities in Tasmania is not providing adequate protection to matters of national environmental significance under the EPBC Act. The report makes a series of recommendations to improve the operation of the regulation of forest practices.
Click here to read the report.
Blueprint for Marine Science released
Premier and Science Minister, Hon Colin Barnett MP, released the Blueprint for Marine Science 2050, identifying over 100 areas where new information will be needed to improve the productivity of WA’s marine industries and enhance protection of the marine environment.
The strategy was developed collaboratively by industry, government and the research sector, highlighting key programmes underpinning marine science and sector activities and decision-making on issues such as decommissioning offshore infrastructure.
For more information, click here
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