Environment and Planning 5 Minute Fix 19: climate change and environmental protection

28 Oct 2021
5 minutes

Environmental protection

NSW: Metal Recycler wins appeal over stockpile plan

Metal Recycler Sell & Parker Pty Ltd (the Applicant) recently succeeded in its court battle against the Minister for Planning over a stockpile plan for a site that had a significant fire in 2017.

The Applicant lodged an application to modify the consent for the operation of its waste metal recovery, processing and recycling facility and this was approved in 2019 subject to a condition which required the Applicant to "submit a Final Stockpile Plan to the satisfaction of the Secretary and FRNSW".

A Final Stockpile Plan was submitted to the Secretary, Department of Planning Industry and Environment (DPIE) and also Fire and Rescue NSW in accordance with the modified consent condition. While Fire and Rescue NSW had no objections to the Final Stockpile Plan, the Secretary found the revised version to be inadequate as it lacked details on non-combustible stockpiles and the location of lead batteries.

The Applicant subsequently lodged an appeal to the Land and Environment Court arguing that the only purpose of the condition requiring the provision of the Final Stockpile Plan was to resolve the "inconsistency between the site plan approved by the grant of the modification application, and the location of stockpiles in the stockpile plan that was also submitted and approved by the modification application". The DPIE refuted this, arguing that the condition gave it a broad right to review the Final Stockpile Plan to ensure it met the relevant fire safety requirements.

The Court held that the condition imposed on the modified consent cannot be interpreted as deferring assessment of the fire safety issues and instead the purpose of imposing the condition (as described in the assessment report) was to resolve the inconsistency as argued by the Applicant, therefore there was no basis for the DPIE to require the Applicant to provide further details on non-combustible stockpiles and to demonstrate that there is a maximum height for combustible stockpiles.

This case clarifies that a condition imposed on a modified consent under section 4.17(2) of the Environmental Planning and Assessment Act 1979 (NSW) relates to an ancillary aspect of the development and cannot be interpreted as requiring a complete revisiting and assessment of the development the subject of the consent.

VIC: Auditor General finds DELWP is making limited use of legislative tools to protect biodiversity

The Victorian Auditor General's Independent Assurance Report has put the Department of Environment, Land, Water and Planning (DELWP) on notice to make better use of the legislative tools available under the Flora and Fauna Guarantee Act 1988 (Vic).

The Report's findings emphasise that species that make it onto the Threatened Species List are not guaranteed protection under the Act. In particular, the Report found that only 20% of listed species have a developed action statement (DELWP must develop an action statement for all listed species). An action statement sets out what has been done, what intends to be done, and what needs to be done to conserve and manage species on the Threatened Species List.

In addition, the Report highlighted that DELWP had:

  1. once used a critical habitat determination;
  2. never used a flora and fauna management plan;
  3. never used a habitat conservation order;
  4. not widely used public authority management agreements.

Given the current global focus on protecting the world's biodiversity, DELWP will likely given more focused consideration to implementing its breadth of legal mechanisms under the Act to protect threatened species in Victoria.

TAS: Tasmania's EPA to become a standalone independent authority

The Tasmanian Government's Environment Minister, Roger Jaensch, has announced a proposal for the Environmental Protection Authority (EPA) to become a "standalone independent State Authority" as of 1 ;December 2021.\

According to the Minister's announcement, the move will involve the EPA's "structural and organisational separation" from Department of Primary Industries, Parks, Water, and Environment (DPIPWE), and is intended to:

  1. clarify the independence of the EPA;
  2. broaden the "EPA's responsibility for environmental assessments";
  3. increase the "integrity of environmental assessments"; and
  4. facilitate additional resource allocation to the EPA.

There will be public consultation before the proposal is tabled in Parliament.

WA: WA to Increase Environmental Offset Requirements

In 2019, the Department of Water and Environmental Regulation reviewed the effectiveness of the State’s decade old environmental offsets framework and its implementation in delivering its objectives. The Government has now released the review report and its implementation plan for the reviews recommendations.

The review report found that:

  • the implementation of the environmental offsets framework has not fully counterbalanced the significant residual impacts of approvals; and
  • improvements are needed to ensure approved offsets counterbalance significant residual impacts both in scale and the impacted environmental values.

Relevantly, the review report contains 25 recommendations, the implementation of which will involve (amongst other things):

  • improving conditions, monitoring, reporting and compliance information;
  • updating the WA environmental Offsets Policy to improve clarity, consistency and currency. This includes the Policy more clearly stating that an offset should achieve results above and beyond those that would have been achieved in the absence of the offset;
  • updating the WA Environmental Offsets Guidelines to improve clarity and provide additional information;
  • finalising development of a metric for WA biodiversity values and develop additional guidance on metric inputs;
  • improving governance and operation of offset funds and establish review processes for calculating contributions; and
  • revising the Environmental Offsets Register to improve the display, function and content.

Climate change

Commonwealth: Carbon credit units now available for new carbon capture and storage projects

On 1 October 2021, the Energy and Emissions Minister announced that the Emissions Reduction Fund (ERF) carbon capture and storage (CCS) method (CCS Method) has been finalised. Under the CCS Method, new large scale CCS projects that capture and store carbon underground will be eligible for high-integrity Australian Carbon Credit Units (ACCUs).

A CCS project must involve the capture and permanent storage of greenhouse gases in a geological formation, which may be oil and gas industry operations or an industrial process such as hydrogen production or electricity generation. To be eligible under the CCS Method, CCS projects must involve the capture of a new source of greenhouse gases captured for permanent storage, which may involve a new capture point.

The Minister also announced the following five new priority ERF methods which will be developed by the Clean Energy Regulator over the coming 12 months:

  • Transport: including emissions reductions created by electric vehicle charging and hydrogen refuelling infrastructure.
  • Hydrogen: including injection of clean hydrogen into the gas network, and the use of hydrogen in electricity generation or other uses, such as low carbon steel.
  • Integrated farm method:- including allowing separate ERF land-based activities to be combined or ‘stacked’ on the same land.
  • Carbon capture use and storage (CCUS or carbon recycling): including in the production of industrial and building materials like insulation or concrete.
  • Savanna fire management: building on the existing method with updated carbon accounting and by expanding the carbon pools and vegetation types covered.

Commonwealth: Consultation on the development of a blue carbon method – have your say

The Clean Energy Regulator has commenced the development of a blue carbon method under the Emissions Reduction Fund (EFR). Blue carbon is the carbon sequestered in coastal systems, such as mangroves, seas grasses and salt marshes. Under the blue carbon method, eligible projects are permitted to store carbon in biomass and soils and avoid emissions through the formation of coastal wetland ecosystems to generate Australian Carbon Credit Units.

The Emissions Reduction Assurance Committee is now seeking feedback on the proposed new blue carbon methodology under the EFR. Consultation closes on 10 November 2021.

Special thanks to Samuel Mursa and Alice Brennan (Sydney), Nick McConville (Melbourne), Gabby Lawrence (Brisbane) and Paris Buti (Perth) 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.