Environment and Planning 5 Minute Fix 09

26 Nov 2020
5 minutes

Climate change

Commonwealth: Report released for Royal Commission into bushfires

The Royal Commission into National Natural Disaster Arrangements, which was established on 20 February 2020 in response to the extreme bushfire season of 2019-2020 that resulted in devastating loss of life, property and wildlife, and environmental destruction across the nation, tabled its Report in Parliament on 30 October 2020.

It is acknowledged in the Report that "[c]limate change has already increased the frequency and intensity of extreme weather and climate systems that influence natural hazards" and that strong adaptation measures are necessary in order to respond to the impacts of climate change in Australia. Of particular note for this update, the Royal Commission recommends that there be a mandatory requirement for State, territory and local governments "to consider present and future natural disaster risk when making land-use planning decisions for new developments".

To find out how Governments and industry have responded to the Bushfires Royal Commission's final report and what are the likely next steps towards implementation of the report's recommendations are see here.

Commonwealth: five-day hearing set for EPBC Act climate test case

The Federal Court has set down a five-day hearing for a class action climate change case, commenced on behalf of a group of eight teenagers against the proposed extension to Whitehaven's Vickery coal mine. The group are seeking a declaration that Federal Environment Minister Sussan Ley has a duty in exercising her statutory powers under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) to avoid causing harm to future generations. They are also seeking an injunction to restrain Minister Ley from exercising her statutory powers "in a manner likely to cause them harm in breach of the duty owed to them".

The hearing represents an Australian first in seeking to invoke a Minister's common law duty of care to protect future generations from the impacts of climate change. The hearing is scheduled to commence on 2 March 2021. A concise statement of the application can be found here.

Commonwealth: Two new climate change bills introduced to Parliament

After placing its introduction on hold due to the COVID-19 pandemic, Independent MP Zali Stegg introduced the foreshadowed climate change bill into Parliament on 9 November 2020. The Climate Change (National Framework for Adaptation and Mitigation) Bill 2020 proposes to set a 2050 target of net-zero emissions and provide for five-yearly emissions reduction budgets. A separate consequential bill, the Climate Change (National Framework for Adaptation and Mitigation) (Consequential and Transitional Provisions) Bill 2020, was also introduced and aims to replace Australia's existing Climate Change Authority with an 'independent climate change commission', whose membership would be determined by a bipartisan parliamentary committee. After introduction, the Bills were subsequently referred to the Senate Standing Committee on the Environment and Energy (Committee) on 11 November 2020 for inquiry and report.

Submissions can be made to the Committee until close of business on 27 November 2020. Details on how to make a submission to the Committee can be found here.

NSW: Right to present expert climate change evidence in case against NSW EPA

In April 2020, Bushfire Survivors for Climate Action Inc (Bushfire Survivors) commenced proceedings against the NSW Environment Protection Authority (NSW EPA) to challenge the adequacy of its' policy responses to climate change in performing its statutory duty. In these proceedings, Bushfire Survivors filed a Notice of Motion seeking leave to rely on expert evidence from Professor Penny Sackett, a climate scientist at the Australian National University in Canberra.

Whilst noting that caution should be exercised by a trial judge when considering the exercise of functions by statutory bodies such as the NSW EPA, in a decision handed down on 4 November 2020, the Honourable Justice Moore of the NSW Land and Environment Court decided that he was satisfied that leave be granted in the current circumstances to allow Bushfire Survivors to file and serve the evidence which it seeks to rely upon in the proceedings. Justice Moore further noted that the question of admissibility of that evidence remains a matter for the trial judge.

A copy of the judgement can be found here - Bushfire Survivors for Climate Action Inc v Environment Protection Authority [2020] NSWLEC 152

NT: NT Government taking steps towards 50% Renewable Energy Target

Following the July 2020 release of its policy foundations for a net zero emissions target by 2050, the NT Government is now taking steps to deliver one of its priority actions to achieve its 50% renewable energy target by 2030 in the form of a new $30 million 35MW Battery Energy Storage System (referred to as BESS) for the Darwin-Katherine grid. It is expected that BESS will be operational in the second half of 2022 following a two staged procurement process:

  • Round 1: Prequalification seeking to understand industry capability and encouraging innovation.
  • Round 2: Request for proposals – successful tenderers from round one will be invited to a detailed second stage in December 2020. The successful proponent is to be awarded in early 2021.

For any businesses interested in submitting a tender, more details can be found at NT Government Quotations and Tenders Online.

TAS: 200% renewable energy target

Tasmania's Energy Minister Guy Barnett's Energy Co-ordination and Planning Amendment (Tasmanian Renewable Energy Target) Bill 2020 passed with amendments by the House of Assembly on 10 November 2020 and is currently before the Legislative Council. If passed, the following targets will be set:

  • by 31 December 2030 - 15,750 GWh of electricity that is generated in that calendar year by NEM-connected equipment is to be generated by utilising renewable energy sources or by converting renewable energy sources into electricity; and
  • by 31 December 2040 - 21,000 GWh of electricity that is generated in that calendar year by NEM-connected equipment is to be generated by utilising renewable energy sources or by converting renewable energy sources into electricity.

Alongside solar, water and wind, the Bill will allow the Minister for Energy to declare additional renewable energy sources which can be utilised to fulfil the targets. Renewable hydrogen and biomass projects have also been noted in the Second Reading Speech as potential additional sources to support the target and were previously identified in the draft Tasmanian Renewable Energy Action Plan.

WA: New climate change legislation on the agenda

The second reading of the Climate Change and Greenhouse Gas Emissions Reduction Bill 2020 (WA), a private members bill introduced to the Legislative Council on 19 March 2020, resumed on 5 November 2020. The ambitious Bill tabled by the Greens sets emissions reduction targets of at least 50% of 2005 levels by 30 June 2030, and net zero emissions by 30 June 2040. It also sets renewable energy targets of 50% State electricity generation by 30 June 2025 and 100% by 30 June 2030. After fierce contributions from all sides, debate has been adjourned pursuant to standing orders.

Environmental, social, and corporate governance (ESG)

Commonwealth: Industry super fund settles with member over climate risks

Retail Employees Superannuation Trust (REST) has settled Federal Court proceedings brought by one of its members and has committed to aligning its investment portfolio to net-zero emissions by 2050. Mark McVeigh, a 25-year-old fund member, commenced proceedings in 2018, alleging that REST was aware or should have been aware of the fund's Climate Change Business Risks (which set out physical and transitional risks of climate change in relation to REST's financial and investment performance). Mr McVeigh also argued that REST's trustees had a fiduciary duty to act in the "best interests" of members and to exercise "care, skill and diligence" in the performance of their duties, including by protecting members' retirement savings from climate change risks.

The proceedings were ultimately settled ahead of a three-day trial scheduled for early November.

See our latest Insights here for further details.


Vic: Have your say on the proposed container deposit scheme

Victoria has proposed a container deposit scheme to increase beverage container recycling and reduce litter in Victoria. A container deposit scheme works by applying a small deposit to beverages sold to consumers which covers the cost of recycling. When the empty beverage containers – such as those in plastic, glass bottles and aluminium cans, are returned to a refund collection point, a cash refund can be collected for each container returned. In a discussion paper released on 2 November 2020, the Victorian Government is seeking input from interested Victorians, businesses, organisations, communities and local governments to inform the design of the container deposit scheme.

Feedback on the proposed container deposit scheme is due on 30 November 2020 in the manner prescribed here.


NT: NT Government to make policy decision on seabed mining Northern Territory following review

A three year moratorium on seabed mining in the Northern Territory was imposed by the NT Government on 6 March 2012 and subsequently extended on 5 March 2015 for a further three years and again extended until March 2021. In October 2020, the NT Environment Protection Authority (NT EPA) released its independent draft Review of Seabed Mining in the Northern Territory-Environmental Impacts and Management (NT EPA Draft Review) for public consultation until 9 November 2020. Following consideration of any submissions made during public consultation, it is anticipated that the NT EPA will finalise its review and advice for submission to the Minister for Environment. The NT Government is then expected to determine its policy position on the future of seabed mining in the Territory.

See here for our latest Insights about the NT EPA Draft Review.

Vic: Planning Minister now the responsible authority for all new large energy generation facilities

On 16 November 2020 the Victorian state government gazetted amendment VC192 to clause 72.01-1 of the Victorian Planning Provisions to make the Minister for Planning the responsible authority determining planning permit applications for all energy generation facilities that are 1MW in capacity or greater and utility installations, including large renewable energy facilities and large scale battery facilities that store electricity from any source. The aim of this amendment is to provide faster decision making and better oversight of Victoria’s electricity generation, distribution and storage.

For more details see the Explanatory Report here.

Major projects

NSW: New fast-track assessment process for major projects in NSW

The NSW Government has announced a new environmental assessment program to fast-track approximately 30 major projects. The Priority Assessment Program will identify and case manage private or public sector projects with the potential to deliver a strong pipeline of investment, public benefit and job growth to drive the economic and social recovery of NSW from the COVID-19 pandemic in the medium term.

The Program will target large complex projects that are early in the assessment process, or have been stuck within it for some time. Strict criteria will also govern project selection, and any chosen project will have to be strategically important to the State or a region and have a significant public benefit. The initial list of projects include a new transmission connection between the Snowy 2.0 pumped-hydro project and the existing high voltage transmission network, and the proposed EnergyConnect interconnector between NSW and South Australia. In addition, the list also includes various rail projects as well as the proposed M12 motorway and the upgrade of Tamworth's Dungowan dam.

The Program is intended to operate over the 2020/21 and the 2021/22 financial years.

A summary of the Program is available here.

Sustainable development

SA: Second public consultation on South Australia's Planning and Design Code

The draft Planning and Design Code (Code) was originally released for a five-month public consultation period from October 2019 to February 2020. In response to the public feedback during the initial consultation a revised draft Code was released for public comment on 4 November 2020 for a six-week period ending 18 December 2020. The Code, already in place for parts of regional South Australia, is due to be implemented in metropolitan areas in early 2021. The Code is the largest reform of planning in SA since 1993 and is designed to dramatically simplify and fast-track the state’s planning system, by consolidating the 72 current development plans into one clear set of planning rules covering the state, ensuring consistent rules and interpretations on all development assessments. A summary of the Post-Consultation amendments can be found here.

Following the close of the public consultation period, the SA Planning Commission will make a recommendation to the Minister for implementation of the Code in metropolitan areas and large regional towns in the first quarter of 2021.

To have your say on the revised draft Code see here.

Tas: Co-ordinated approvals for major projects

The Land Use Planning and Approvals Amendment (Major Projects) Act 2020 commenced on 28 October 2020, amending the Land Use Planning and Approvals Act 1993. The Act provides for a new Major Projects process with three distinct stages: eligibility, preliminary assessment and final assessment. To be eligible, the project must be referred for assessment under the Act by project proponents, the relevant council or the Minister for Planning. To be declared a "major project", the Minister must be of the opinion that the project has at least two of the following attributes:

  • that it will have a significant impact on, or make a significant contribution to, a region’s economy, environment or social fabric;
  • that it will be of strategic importance to a region; and
  • that it will be of significant scale and complexity.

Once a project has been declared a major project, an independently delegated panel will conduct a preliminary assessment of the project's prospects of approval.

Where the project has reasonable prospects of being approved under the legislation, it will be subject to a streamlined and coordinated assessment process for land use planning, environmental impacts, Aboriginal heritage and historic cultural heritage, Taswater, threatened species and gas pipeline safety. The Act sets out clear timeframes for each step of the assessment process, providing proponents with certainty. After the preparation of an assessment report, consultation with regulators, public consultation and public hearings, the panel will determine whether to issue the proponent with a Major Projects permit with conditions, or refuse the proposal.

Vic: Review of the EPA's recycled water guidance

The Department of Environment, Land, Water and Planning (DELWP) is leading a review of Victoria's recycled water guidance. DELWP has released a proposed draft Guideline for Water Recycling and related draft Technical Information for public consultation. Broadly, the Guidelines replace the EPA's current guidance on recycled water (which is presently spread across five publications), providing consolidated guidance for the safe and sustainable use of recycled water in Victoria. It also outlines the Victorian regulatory process and requirements for water recycling, which is relevant to wastewater suppliers, producers of industrial wastewater and those seeking to utilise recycled water as a resource. Under the current regime, the Guideline will have legal force where compliance with the Guideline is required by a plan or approval. Comments can be made here until 26 November 2020.

Environmental protection

Commonwealth: The latest on the EPBC Act review and legislative amendments

The Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020, which was introduced to Federal Parliament in August following the release of the Interim Report of the Review of the EPBC Act, has progressed through House of Representatives and was introduced to the Senate (first and second reading speeches) on 6 October 2020. The Bill proposes to streamline environmental approvals under the EPBC Act by allowing the devolution of environmental approvals to the states and territories, subject to entry into approval bilateral agreements.

On 12 November 2020, the Bill was referred to the Environment and Communications Legislation Committee for inquiry and report by 27 November 2020. The submission period for the inquiry end on 18 November 2020.

Further, it was announced on 2 November, that the Final Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) prepared by Professor Graeme Samuel AC was submitted to the Federal Environment Minister on 30 October. In accordance with the EPBC Act, the Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it. The release of the Final Report to the public is a matter for Government and at this stage no date for release has been announced.

Commonwealth: New threatened species listing process to meet bushfire impacts

In September 2020, the Federal Environment Minister announced that the threatened listing status of 28 species (including the koala and the Greater Glider) will be formally assessed. The 28 species included in the Finalised Priority Assessment List (FPAL) include two reptiles, four frogs, seven fish, six mammals and nine birds, bringing the total number of species being assessed to 108. Formal assessment is due to be completed by 20 October 2021.

It is important to note that where you are proposing development or an activity that will have a significant impact on the species on the FPAL, any changes to their status will likely have implications for the assessment and approval your proposed development or activity.

NSW: Policy changes and new guidelines for koala habitat protection in NSW

On 7 October 2020, the NSW Government agreed on amendments to the State Environmental Planning Policy (Koala Habitat Protection) 2019 (NSW) (Koala SEPP) and the Local Land Services Act 2013 (NSW) which aim to "balance stopping the decline of the koala in NSW with the rights of farmers and landholders."

The changes to the Koala SEPP were published on 16 October 2020 and repealed and replaced the State Environmental Planning Policy No 44 - Koala Habitat Protection to protect 123 tree species critical to koala survival, amend the definition of 'core koala habitat', return to on-the-ground surveying methods to remove reliance on the Development Application Map and streamline the assessment process for development applications on land where koala habitat is present. The Koala SEPP works alongside a new Koala Habitat Protection Guideline, which provides local councils with practical guidance on implementing these regulatory changes.

For further information on the Koala SEPP see our October Insights here and for further information about the new Koala Habitat Protection Guideline see our latest Insights here.

Qld: Comprehensive review of the Queensland Environmental Offsets Framework

The Queensland Government has released its Consultation and Response Report on its review of the effectiveness of Queensland’s Environmental Offsets Framework since its introduction in 2014. The Report highlights the ongoing support for continued use of environmental offsets as a method of counterbalancing unavoidable environmental impacts from development, whilst also considering opportunities for reform.

The Report sets out a two-stage response for the Queensland Government. The first stage of reforms, to be delivered by December 2020, involves non-regulatory improvements to the framework, enhancing partnerships with land managers and developing guidance material for landholders. The second stage of reforms, which may involve amendments to the framework, will commence in 2021 and be delivered before the expiry of the Environmental Offsets Regulation and Policy on 1 September 2024.

SA: New biosecurity legislation

South Australia released a consultation paper for a new Biosecurity Act for public consultation until 24 November 2020. The draft Act proposes to consolidate the existing independent measures in the Plant Health Act 2009, Livestock Act 1997, Dog Fence Act 1946, and Impounding Act 1920, to simply and modernise the regime. New opportunities identified for the draft Act include:

  • greater flexibility to respond to biosecurity threats;
  • reduce red tape by consolidating administration and avoiding duplication;
  • enable consistency in applying an evidence-based risk analysis approach;
  • ensure clear and strong powers for biosecurity officers and a comprehensive compliance framework; and
  • ensure consistency with the Commonwealth and other jurisdictions.

Responses to the consultation will guide the drafting of the new Biosecurity Bill.

Vic: EPA releases guides and manuals in advance of the new environmental regime

In anticipation of the commencement of the new environmental regime on 1 July 2021 (as delayed due to COVID-19 pandemic), the EPA Victoria has released a number of guides and manuals to assist industry specific bodies understand their risks and duties under the new environmental regime:

These guides and manuals are in addition to the suite of strategy, policy and protocol documents which EPA Victoria released earlier in June, September and October:

WA: EP Act amendments pass through WA Parliament

On 13 November 2020 the Environmental Protection Amendment Bill 2020 and Environmental Protection Amendment Bill (No. 2) 2020 passed through the WA Legislative Council and are currently awaiting assent. The operative parts will commence on a date to be fixed by proclamation. The Bills will substantially amend the Environmental Protection Act 1986 and whilst the majority of the amendments are relatively minor, the key amendments are:

  • the ability to withdraw, supersede, combine and/or split Ministerial Statements;
  • express recognition of the relevance of cumulative effects in Part IV;
  • increased thresholds for material and serious environmental harm to $100,000 and $500,000 respectively;
  • voluntary licences for prescribed activities below the threshold amount;
  • option for proponents to refer non-exempt clearing proposals to the CEO for a determination as to whether a clearing permit is required (ie. gives the CEO a power to "exempt" clearing proposals from requiring a permit); and
  • cost recovery for the referral, assessment and implementation of proposals under Part IV and compliance audits.

The changes are expected to streamline and modernise environmental regulation in Western Australia.

Special thanks to Scott Howieson in our Perth office, Jessie Layman, Bridget Lorenz and Taylor Mitas in our Melbourne office, Luke Lindley in our Brisbane office and Samuel Wicks and Cloe Jolly in our Sydney office for their contribution to this edition.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.