Environment and Planning 5 Minute Fix 10

04 Feb 2021
5 minutes

Major projects

NSW: Rapid Assessment Framework for State significant projects on exhibition – have your say

The NSW Government’s proposed Rapid Assessment Framework, to reform the Environmental Planning and Assessment Regulation 2000 (NSW), is currently on exhibition via the NSW Government website with the submission period closing on Friday, 12 February 2021.

The Framework, which is one part the State’s broader Planning Reform Action Plan, is intended to deliver streamlined approval processes and provide assessment quality assurance for State significant projects.

The reforms are intended to cut lengthy application timelines through standardised Secretary’s Environmental Assessment Requirements (SEARs) for use in specific circumstances, including health infrastructure, key sites and distribution centres. Under the current scheme, SEARs outlines project-specific requirements that must be responded to when preparing mandatory Environmental Impact Statements (EIS).

The Framework’s quality assurance mechanisms includes several guidelines designed to assist the preparation of assessment reports and EIS certification by registered environmental assessment practitioners. The Planning Secretary will also be given expanded powers to reject proposals deemed incomplete.

For more information, including copies of the Draft Regulations and supporting materials, visit the NSW Planning Website here.

Sustainable development

NSW: Final Report released on the Review of the Infrastructure Contributions System in NSW

The NSW Productivity Commission has proposed a significant shake up to the development contributions system in NSW following the release of the Final Report into the Review of the Infrastructure Contributions System.

The NSW Government is currently reviewing the recommendations and will consider the views of stakeholders in developing a roadmap to implement the reforms by early 2021.

Our analysis of the Report and its practical implications for stakeholders is available here.

WA: Rewards program for carbon abatement projects

The WA Government has clarified the mechanics of its $15 million commitment to the Carbon Farming and Land Restoration Program, signalled as part of the Western Australia Climate Policy (discussed above). The program is designed to encourage farmers to investigate and develop carbon farming projects, by delivering a two-pronged incentive framework:

  • pre-purchasing ACCUs from applicants with projects registered with the ERF that deliver priority co-benefits; and
  • providing grants for carbon sequestration pilot projects that deliver priority co-benefits but do not currently meet ERF registration criteria, to enable the development of new ERF methods for WA farmers.

The priority co-benefits the program targets are:

  • biodiversity and conservation co-benefits;
  • agricultural productivity co-benefits;
  • salinity mitigation co-benefits;
  • soil health co-benefits; and
  • Aboriginal economic and cultural co-benefits.

Environmental protection

Commonwealth: Final report for EPBC Act review released

After being submitted to the Federal Environment Minister on 30 October 2020, 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 has now been released.

The Final Report concludes that the EPBC Act and its implementation are not effective and provides 38 recommendations that are to be implemented as a whole following a three-phase program - immediate reforms, reforms to be completed within 12 months and reforms to be completed within 2 years.

The reforms focus on the following:

  • the development and legislative implementation of legally enforceable National environmental standards;
  • a move away from "transactional" or project-by-project decisions;
  • decisions that meaningfully incorporate indigenous knowledge and participation;
  • an overhaul of the Commonwealth indigenous heritage laws; and
  • a comprehensive and robust compliance, auditing and reporting culture, supporting by an Environment Assurance Commissioner.

For our latest Insights on the final report see here.

Commonwealth: Standardising management of industrial chemicals through national standard

In December 2020, Federal Minister for Environment, Sussan Ley introduced the Industrial Chemicals Environment Management (Register) Bill 2020 (Cth) (ICEMR), which if passed will create a single public register that will record decisions made about the proper management of industrial chemicals.

The ICEMR empowers the Minister to make the Industrial Chemicals Environmental Management (Register) Principles 2020, which sets out the criteria used to classify industrial chemicals by both the chemicals inherent characteristics and its proposed use. The Minister will then be able to make classification decisions around how the chemical is used, handled or discarded with such decisions to be recorded on the Industrial Chemicals Environmental Management (Register) Instrument 2020.

States and Territories would then have the ability to adopt part or all of the ICEM Register into their respective jurisdictions.

See our latest Insights for more information about the ICEMR here.

On 10 December 2020, the ICEMR along with other supporting legislation was referred to the Senate Environment and Communications Legislation Committee for inquiry and report by 11 March 2021. Submissions closed on 22 January 2021.

QLD: Draft standard conditions for new or expanded commercial cropping and horticulture activities in the Great Barrier Reef catchments open for consultation

In response to the COVID-19 pandemic, the Queensland Government deferred the commencement of the regulatory requirements that relate to new or expanded cropping and horticulture activities (known as ERA 13A) under the Environmental Protection (Great Barrier Reef Protection Measures) and Other Legislation Amendment Regulation 2019 (Qld) from taking effect until 1 June 2021. The aim of these requirements is to achieve ‘no net decline’ in water quality by preventing and minimising nutrient and sediment run-off.

From 1 June 2021 new or expanded commercial cropping (ie cultivation of 1 or more crops) and horticulture (the relevant activity) will require an environmental authority (EA) before the activity or any work takes place where the relevant activity is carried out:

  • ·on a least 5 hectares of land in the Great Barrier Reef catchment (ie the Cape York, Wet Tropics, Burdekin, Mackay Whitsunday, Fitzroy and Burnett Mary regions), whether or not the land is contiguous; and
  • ·on a commercial basis, whether or not as a single enterprise; and
  • if the crop cultivation or horticulture is carried out on land in more than 1 river basin - as a single enterprise on at least 5 hectares of land in at least 1 river basin, whether or not the land is contiguous.

A relevant activity includes preparatory work for the crop cultivation or horticulture.

The Department of Environment and Science has now reopened consultation on the updated draft standard conditions for new or expanded commercial cropping and horticulture activities, which once finalised, will be the minimum operating requirements an EA holder must comply with for new or expanded cropping or horticulture activities in the Great Barrier Reef catchments. Submissions can be made about the draft standard conditions until Wednesday, 17 February 2021.

See here for more details on how to make a submission on the draft standard conditions.

VIC: EPA releases final draft of new Environment Protection Regulations and Standards

On 14 December 2020 the EPA released the second (and final) exposure draft of the Environment Protection Regulations (Vic), the Environment Protection (Transitional) Regulations (Vic) and the Environment Reference Standards (ERS) which will support the new environmental laws in Victoria. The Regulations and ERS are to commence on 1 July 2021 along with the Environment Protection Act 2017 (Vic).

A suite of supporting documents have been finalised and published by the EPA, including a practical guide to the proposed new regulations.

DELWP has also released a Response to Public Comment Report which outlines the Department's response to public submissions during consultation on the Regulations and ERS which informed the final iteration of each.

NT: Consultation closed on draft assessment bilateral agreement

In December 2020, the Commonwealth Government released the draft Northern Territory Assessment Bilateral Agreement for consultation for the accreditation of assessment processes under both the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) (ie controlled actions) and the Environment Protection Act 2019 (NT) (EP Act) so that a single assessment process applies, and duplication is avoided.

The consultation period on the draft NT Assessment Bilateral Agreement ended on 29 January 2021.

See here for our latest Insights about the draft Northern Territory Assessment Bilateral Agreement.


NT: New petroleum regulations in force requiring statutory land access agreements and compensation

The Petroleum Regulations 2020 (NT), which have now replaced the Petroleum Regulations 1994 (NT), commenced on 1 January 2021 and introduced a range of new requirements in relation to petroleum activities in the Northern Territory. The Regulations follow the release of the Independent Scientific Inquiry into Hydraulic Fracturing in March 2018 and gives effect to 63 of the Inquiry's 135 recommendations.

The key changes contained in the new Regulations include:

  • compensation to land owners where there is drilling of a well on the land or where operations decrease the market value of the land;
  • the requirement for statutory land access agreements to be reached where interest holders are undertaking regulated operations;
  • the introduction of alternative dispute resolution mechanisms to assist parties negotiate and resolve matters relating to statutory land access agreements; and
  • the requirement to provide detailed notices to landholders to undertake preliminary activities, including airborne surveys.

In relation to land access agreements, it is now an offence to commence regulated operations on land without the land being the subject of an approved access agreement approved by the Minister under the process prescribed by the Regulations.

Land access agreements must at least contain provisions that address each of the 25 standard minimum protections, which are set out in Schedule 2 of the Regulations. The standard minimum protections relate to, amongst other things, minimum notice periods, access points, rehabilitation and remediation, compensation for drilling and for decrease in value of land and a general obligation to make good.

A 12-month transition period will apply to the requirement for an approved land access agreement, and an agreement does not need to be in place in order to continue the regulated operations during the transition period. However, an interest holder still requires:

  • an agreement with the land owner about access to the relevant land in order to continue regulated operations during the transition period; and
  • an approved access agreement in order to continue regulated operations after the end of the transition period.

See here for our latest Insights about the new Petroleum Regulations.

NT: Australian Government accelerating exploration and development in the NT's Beetaloo Basin

In its 2020-21 Budget, the Australian Government included $28.3 million to develop five Strategic Basin Plans aimed at unlocking and accelerating the development of vast gas reserves, increase domestic supply and lower prices for households and businesses. The first of those Strategic Basin Plans, which has now been released, is for the Northern Territory's Beetaloo Basin.

The Unlocking the Beetaloo: The Beetaloo Strategic Basin Plan sets the following four actions which the Australian Government is progressing

  • Action 1: Building a clear picture of the Beetaloo
  • Action 2: Regulating efficiently and effectively
  • Action 3: Enabling infrastructure
  • Action 4: Sharing regional benefits

A copy of the Plan and Summary can be found here.

Climate change

Commonwealth: Energy and emissions bilateral agreement with Tasmania

On 15 December 2020 the Federal and Tasmanian Governments signed the Commonwealth-Tasmania Bilateral Energy and Emissions Reduction Agreement which is a memorandum of understanding between the two levels of government setting out the objectives and actions (which are not legally enforceable) in relation to:

  • boosting Tasmania's interconnection with mainland Australia and the National Energy Market (NEM);
  • improving energy security, reliability and affordability; and
  • achieving cost-effective emissions reductions.

An Agreement Implementation Steering Committee will be appointed to implement the Agreement and will included members from both Governments.

Unless ended by either party, the Agreement will continue until 2030 or until the parties agree that the objectives and actions have been completed (or by any other mutual agreement).

VIC: Regional climate change adaptation strategies being prepared

On 7 November 2020 the Department of Environment, Land, Water and Planning released a Discussion Paper for the Regional Climate Change Adaption Strategy for Greater Melbourne (Strategy). This is one of six regional strategies that are to be adopted across Victoria to identify and prioritise actions for the next five years.

The Strategy will focus on how Greater Melbourne can cope with extreme weather impacts and other consequences of climate change. The consultation period for the discussion paper is now closed and it is anticipated that a consultation summary will be released shortly.

It is understood that a draft Regional Climate Adaption Strategy for Greater Melbourne is expected to be released for community input in early 2021. See here for further details.

Steps to progress the Grampians Climate Adaptation Strategy are also being taken, with contributions to inform its drafting being accepted until 1 February 2021. It is expected that a draft Grampians Climate Adaptation Strategy will be released for public comment in March / April 2021. See here for further details.

VIC: Six renewable energy zones to be established

The Victorian Government has set aside $540 million in its Budget 2020/21 to develop six Renewable Energy Zones across the state. The Government describes the Renewable Energy Zones as the "energy hubs of the future" which are intended to create local jobs, reduce power prices and advance the Victorian Government's work to address climate change and achieve the current Victorian Energy Target (VRET) of 50% by 2030.

The development of the six Renewable Energy Zones will ensure that those areas with access to renewables will be provided with the required infrastructure and transmission capacity to send clean energy to those areas within the State that need it. The Renewable Energy Zones will serve as a planning tool to ensure that the transmission and demand for renewables is properly coordinated throughout the State. The Australian Energy Market Operator will develop a plan for each zone by identifying a mix of solar, wind and/or hydro energy opportunities depending on the resources available in the zones.

The six Renewable Energy Zones are South West Victoria, Western Victoria, Murray River, Central North Victoria, Ovens Murray and Gippsland.

VIC: A look at water and climate science

The Department of Environment, Land, Water and Planning (DELWP) has made available Victoria's Water in a Changing Climate report, which includes findings of research by the DELWP-led Victorian Water and Climate Initiative (VicWaCI) over the last four years. Key findings in the report relate to the impacts of the changing climate on weather systems and rainfall across Victoria, as well as a comparison of different climate and runoff projections and methods for developing improved projections.

The report is intended to be used by the Victorian water sector to inform future planning and policy decisions. The findings have already informed the development of the 2020 edition of Guidelines for Assessing the Impact of Climate Change on Water Availability in Victoria which:

  • provide guidance on how to apply the climate science;
  • promote a consistent approach to climate change impact assessment for water supplies; and
  • enable more efficient climate change impact assessments.

SA: Climate change action plan to drive net zero emissions by 2050

The South Australian Government has delivered its Climate Change Action Plan 2021-2025, which outlines the 68 government-led actions intended to drive South Australia to their interim target of a 50% reduction on 2005 levels by 2030, and net zero by 2050 beyond. The Plan sets the following focus areas with corresponding objectives:

  • Resilient communities;
  • Clean energy transformation;
  • Climate smart agriculture, landscapes and habitats;
  • Low emissions transport;
  • Climate smart built and urban environments;
  • Government leading by example; and
  • Climate smart economy.

Amongst other things, the detailed Plan seeks to establish South Australia as a world-class renewable energy supplier for domestic and international markets.

NT: Darwin's climate emergency strategy open for consultation

Following the declaration of a "climate emergency" by Darwin Lord Mayor Kon Vatskalis in 2019 and subsequent climate emergency roundtable discussions with community and business leaders, a Discussion Paper has been developed which captures the unique considerations of Darwin's climate emergency. The Discussion Paper informs and underpins City of Darwin’s draft Climate Emergency Strategy.

The City of Darwin’s draft Climate Emergency Strategy details Council’s four key goals, which include the following:

  • to suitably enhance resilience and adapt to the impacts of climate change;
  • to achieve net-zero council-controlled emissions by 2030;
  • to support the Darwin community to achieve net-zero emissions by 2040; and
  • to embrace emerging opportunities associated with a net-zero transition.

The consultation period on the City of Darwin’s Climate Emergency Response and draft Climate Emergency Strategy is now open and ends on 12 February 2021. Submissions can be made here.

TAS: 2020 closed out at 100% renewable energy with hydrogen on the agenda

The Tasmanian Renewable Hydrogen Action Plan sets out the Tasmanian Government's vision to take advantage of its existing and expanding renewable hydrogen resources for both domestic use and export. The Plan sets out the following four pillars that will underpin the Government's vision:

  • Pillar 1 – explore the opportunities for using locally produced renewable hydrogen in Tasmania and for export;
  • Pillar 2 – provide financial support for renewable hydrogen projects for export and domestic use, and continue investment attraction activities including with international trade partners;
  • Pillar 3 – ensure a robust and supportive regulatory framework and assess supporting infrastructure; and
  • Pillar 4 – build community and industry awareness, develop skills, and support research and education.

The Tasmanian Renewable Hydrogen Action Plan Status Report which was released on 25 November 2020 provides the timeframes and lead agency for implementation of the 25 actions under the four pillars of the Plan as well as comments on progress and next steps.

TAS: Coordinating renewable energy transition

As a step to implementing a key action under the Tasmanian Renewable Energy Action Plan, Tasmania's Energy Minister Guy Barnett has released the Draft Renewable Energy Coordination Framework for public consultation until Wednesday, 3 March 2021.

The Framework sets out the goals and actions for the following objectives:

  • Objective 1 – achieve the legislated Tasmanian Renewable Energy Target of 200 per cent renewable energy target by 2040;
  • Objective 2 – establish Tasmania’s Renewable Energy Zones; and
  • Objective 3 – partnering with communities.

See here for more information on how to make a submission.

WA: WA Government sets priorities and actions in new climate policy

The WA Government has released its Western Australian Climate Policy, outlining the six priority themes and associated actions it will implement in order to achieve the aspiration of net zero emissions in 2050, and to adapt to a changing climate:

  • Clean manufacturing and future industries;
  • Transforming energy generation and use;
  • Storing carbon and caring for our landscapes;
  • Lower-carbon transport;
  • Resilient cities and regions; and
  • Government leadership.

The Policy identifies the challenges Western Australia faces in reducing emissions, exacerbated by its reliance on the resources industry, and calls for a robust national policy framework, particularly in the management of emissions from Safeguard Facilities.


Commonwealth: Recycling and Waste Reduction Act: what you need to know

The Recycling and Waste Reduction Act 2020 commenced on 16 December 2020 and is one of a suite of initiatives introduced by the Federal Government to promote a circular economy, improve Australia's waste management systems, and boost its domestic recycling.

The Act aims to regulate the export of waste materials, in line with the agreement to ban the export of waste plastic, paper, glass and tyres by the Council of Australian Governments in 2020. It also aims to manage the environmental, health and safety impacts of products and provide for voluntary, co-regulatory and mandatory product stewardship schemes.

The export bans will be phased in over the next few years, starting with a ban on the export of unprocessed glass from next month.

See here for our latest Insights about the Recycling and Waste Reduction Act.

QLD: Re-introduction of legislation to ban single-use plastics

The Waste Reduction and Recycling (Plastic Items) Amendment Bill 2020 proposes to ban the supply of single-use plastic items including straws, stirrers, plates and cutlery across Queensland. Originally introduced in July 2020, the Bill supports delivery of the broader principles of the Queensland Government’s Waste Management and Resource Recovery Strategy, released on 1 July 2019 and the aims of Tackling Plastic Waste – Queensland’s Plastic Pollution Reduction Plan to reduce plastic waste and the environmental and economic impacts of plastic pollution.

The Bill was most recently reintroduced and referred to the Health and Environment Committee for detailed consideration and report by Friday, 12 February 2021. Submissions closed on 13 January 2021.

ACT: Proposed ban of single-use plastics

At the end of 2020, the ACT Government’s Plastic Reduction Bill 2020 was introduced in the Legislative Assembly, which if passed, will relevantly:

  • place a ban on certain single-use plastic items, including cutlery, plastic stirrers and polystyrene takeaway food and beverage containers, these items having received the highest community support during consultation; and
  • empowers the responsible minister to declare a public event single-use plastic-free

from its commencement on 1 July 2021.

For further information regarding the Bill and supporting materials, see here.

Special thanks to Luke Lindley in our Brisbane office, Scott Howieson in our Perth Office, Jessie Layman, Bridget Lorenz and Taylor Mitas in our Melbourne office and Victoria Hu, Cloe Jolly and Lauren Parnaby (Summer Clerk) 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.