Environment and Planning 5 Minute Fix 11: climate change, waste, resources, planning and environmental protection

04 Mar 2021
5 minutes

Climate change

Commonwealth: Bill for scope 3 emissions reporting reintroduced

Independent MP Andrew Wilkie has reintroduced the National Greenhouse and Energy Reporting Amendment (Transparency in Carbon Emissions Accounting) Bill 2021 which most notably aims to require businesses covered by the National Greenhouse and Energy Reporting (NGER) scheme to report data on their scope 3 emissions. These are indirect greenhouse gas emissions that occur as a consequence of the activities of a facility, but from sources not owned or controlled by that facility's business.

Currently those businesses captured by the scheme are only required to report on scope 1 emissions (emissions released as a direct result of an activity or series at a facility level) and scope 2 emissions (emissions released from the indirect consumption of an energy commodity).

The reintroduction of the Bill has proceeded despite criticisms raised during a committee inquiry about the 2020 version of the Bill, namely that reporting scope 3 emissions would result in double-counting and that the reporting scope 3 emissions was not required to meet international commitments.

Debate on the Bill has been adjourned.

Queensland: Preliminary points decided in human rights climate change case

The Land Court of Queensland has decided on preliminary points about further and better particulars in Youth Verdict Ltd's challenge against the approval of Waratah Coal Pty Ltd's thermal coal mine in Queensland's Galilee Basin.

On 8 February 2021, Land Court President Fleur Kingham held that Youth Verdict Ltd must provide an exhaustive list of the classes of individuals whose rights will be infringed under the Human Rights Act 2019 (Qld) should the thermal coal mine be approved, but that the following particulars sought by Waratah Coal are matters for expert evidence:

  • when thermal coal must be phased out to achieve the aims of the Paris Agreement;
  • the aims of the Paris Agreement; and
  • why thermal coal must be phased out to achieve the aims of the Paris Agreement.

WA: New proposals subject to GHG conditions

The WA EPA’s assessment and the Western Australian Government’s recent approval of FMG’s Pilbara Energy Generation Power Station and AWE’s Waitsia Gas Project Stage 2 provides the first insight into the practical treatment of greenhouse gas emissions under WA’s new climate policy and the EPA’s April 2020 GHG emissions guidelines.

The EPA’s recommended approval conditions, which survived review by the Appeals Convenor and were adopted by the State Government, impose obligations on the proponents, including that the projects achieve net-zero emissions by 2040 and the proponents immediately offset all reservoir emissions respectively.


NSW: Release of new NSW Planning Agreements Practice Note

A new Planning Agreements Practice Note has now been released by the NSW Government to replace the 2005 version and provide guidance on matters relating to voluntary planning agreements.

Subject to transitional arrangements for planning agreements substantially negotiated or being finalised prior to the publication of the new Practice Notice, planning authorities must have regard to the new Practice Note when negotiating and preparing voluntary planning agreements.

Environmental protection

Commonwealth: Draft Productivity Commission report on national water reform released for consultation

On 11 February 2021, the Australian Productivity Commission released its draft report on national water reform, which assesses the progress of the Australian, State and Territory Governments towards achieving the objectives and outcomes of the National Water Initiative, and provides practical advice on future directions for national water reform. Of particular note, the Commission:

  • advises that exemptions for mineral and petroleum industries from water access entitlement should be removed; and
  • seeks feedback on suitable triggers for rebalancing environmental and consumptive shares in the context of climate change.

Submissions on the draft report can be made until March 24 in the manner prescribed here. It is understood that the final report will be provided to the Australian Government by the end of June 2021.

Commonwealth: Bill to impose moratorium on koala habitat clearing

The Environment Protection and Biodiversity Conservation Amendment (Save the Koala) Bill 2021 (Cth) is a private members bill which proposes to amend the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act):

  • a moratorium on the clearing of koala habitat which would effectively prevent the Minister from approving an action under the EPBC Act where that action consists of or involves the clearing of koala habitat; and
  • to remove the exemption of Regional Forest Agreements from requirements of the EPBC Act where there is, may, or is likely to be a significant impact on koalas.

The Bill has been referred to the Senate Standing Committees on Environment and Communications for inquiry and report by 2 December 2021. Submissions can be made to the Committee until Thursday, 8 April 2021.

Commonwealth: More EPBC Act reforms open for consultation

The Minister for the Environment has introduced another amendment Bill to amend the Environment Protection and Biodiversity Conservation Act 1999 (Cth) following the recent release of the final report of the independent inquiry undertaken by Professor Graeme Samuel.

The Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 (Cth), which establishes a framework for the making, varying, revoking and application of National Environmental Standards and an Environment Assurance Commissioner has been referred to the Senate Environment and Communications Legislation Committee for inquiry and report by 1 June 2021.

You can learn more about the proposals here.

Victoria: Contaminated land under the new environmental regulatory framework – what you need to know

As the 1 July commencement date for the new Environment Protection Act 2017 draws, the Victorian EPA has released the following to provide guidance on the management of contaminated land:

  • 1915: Contaminated land policy – explains the contaminated land duties in the new Act and the duty holder's role in minimising contaminated land risks of harm.
  • 1940: Contaminated land: Understanding section 35 of the Environment Protection Act 2017 – sets out how EPA defines contaminated land, and the principles and standards the EPA regards as applicable to the identification of contaminated land.
  • 1936: Proposed methodology for deriving background level concentration when assessing potentially contaminated land – contains the proposed set of requirements that must be met to substantiate that specified naturally occurring chemical substances are not present at a concentration above background levels.

Victoria: Regulation of wind farm noise set to change

The Victorian Government is proposing changes to the regulation of wind farm noise to align with the new Environment Protection Act 2017 (Vic) that is set to commence on 1 July 2021. The three options currently being consider and which were the subject of consultation last month are:

  • Option 1: No additional regulation – the Environment Protection Authority (EPA) will take over regulation from local council relying on the "general environmental duty" to take reasonable steps to minimise risks of harm to human health and the environment and the "unreasonable noise" provisions under the new Environment Protection Act;
  • Option 2: Direct regulation – setting specific requirements for compliance; and
  • Option 3: Permissions – requiring permission from the EPA to produce wind turbine noise within set limits.

Options 2 and 3 would require that wind farm operators to (amongst other things) implement a noise management plan, including a complaints management plan, provide annual compliance statements, complete a post-construction noise assessment and undertake a noise assessment every five years.

A consultation report is due to be released in April 2021.

WA: Key environment reform amendments have now commenced

Key amendments to the Environmental Protection Act 1986 (WA) made by the Environmental Protection Amendment Act 2020 (WA) have now commenced, the most significant of which relate to:

  • an increase in the "threshold amount" for material and serious environmental harm from $20,000 to $100,000;
  • provision for fees and charges for referral and assessment of Part IV proposals; and
  • provision for regulations to be made in respect of Part V approvals timeframes and accreditation schemes for environmental practitioners.


NSW: Mine expansion refused for failing to explore ways to minimise environmental impacts

Despite South32 proposing to make substantial offset payments to compensate for reduced surface water flows and a package of biodiversity offsets to compensate for damage to threatened swamps for the proposed expansion of its Dendrobium mine, west of Wollongong, the NSW Independent Planning Commission has refused consent primarily due to a range of potential impacts linked to subsidence, including:

  • a detrimental impact on greater Sydney's drinking water resources due to reduced steam flow; and
  • damage to coastal upland swamps that are classified as threatened ecological communities.

A copy of the determination and statement of reasons is here.

NT: NT Government set to ban seabed mining in the Territory's coastal waters

The NT Government has announced that it will now ban seabed mining in the Territory following its consideration of the NT Environment Protection Authority's (NT EPA) Final Report: Review of Seabed Mining in the NT – Environmental Impacts and Management.

We previously considered the NT EPA's draft Review of Seabed Mining in the Northern Territory-Environmental Impacts and Management which was released for consultation last year. The key findings and conclusions in the Final Report essentially remained the same as those in the Draft Review with further emphasises being placed on the substantial work and resourcing that would be required for the robust environmental impact assessment and regulation of what is a new and complex industry that has challenged other environmental regulators in Australia and internationally.

With the moratorium on seabed mining in the Territory set to expire on 5 March 2021, it is understood that the NT Government will now extend the moratorium for a further six-months to allow time for the Minister for Environment and Natural Resources to consult on the draft prohibition declaration, and how it will operate in Territory coastal waters.

See here for further information.


Victoria: Proposed waste and resource recovery determinations

The Victorian Government has released the Discussion paper – Proposed waste and resource recovery determinations for public comment. The Discussion Paper provides details on four proposed waste determinations that are being developed based upon industry best practice and relate to processed solid organic wastes, manures (including animal wastewater and effluent), fill material and aggregates.

The determinations, once made, will be legislative instruments and will operate like standards by setting specifications and conditions for the receipt of industrial wastes, which if met, will allow for the use of some industrial wastes without further self-assessment or EPA approval under the new environmental protection framework that will commence on 1 July 2021.

Submissions on the Discussion Paper can be made until Thursday, 4 March 2021 in the manner prescribed here.

Tasmania: Waste and resource recovery reforms open for consultation

The Tasmanian Government has begun public consultation on the draft Waste and Resource Recovery Bill 2021 which seeks to impose a state-wide levy on every tonne of waste taken to landfill, with the funds to be used to provide grants for waste management services across Tasmania.

It is proposed that the levy would be introduced in stages, beginning on 1 November 2021 at $20 per tonne, increased to $40 per tonne after two years and then a final increase to $60 per tonne after a further two years for consistency with the current average regional waste levy across Australia.

The Tasmanian Government has also released an explanatory paper on the changes proposed under the draft Bill. Submissions on the draft Bill can be made until Friday, 12 March 2021.

Special thanks to Luke Lindley in our Brisbane office, Scott Howieson in our Perth office, Victoria Hu in our Sydney office and Alana Ticchi and Aaron Wood (Summer Clerks) in our Melbourne 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.