Environment and Planning 5 Minute Fix 17: climate change, energy, resources, planning and environmental protection

02 Sep 2021
5 minutes


VIC: Legal standing tested in challenge against extension of time decision for wind farm

The Victorian Supreme Court in The People of the Small Town of Hawkesdale Incorporated v Minister for Planning [2021] VSC 510 has held that the special interest of an association's members is not enough to give that association legal standing to bring judicial review proceedings against a decision under the Environment and Planning Act 1987 (Vic).

On 21 August 2008, the Minister for Planning issued a planning permit for the development and use of land near the township of Hawkesdale for a wind farm which required the development to be completed by 29 August 2020. On 2 November 2020, the project proponent applied to the Minister for an extension of time to complete the development. The Minister granted an extension to 29 August 2023.

The People of the Small Town of Hawkesdale Incorporated (the Association) sought to challenge the decision of the Minister to grant an extension to the permit and argued that it had that "special interest" because its members would suffer environmental and economic impacts from the wind farm. The Minister argued that the Association was a separate legal entity and could not have a "special interest" merely because its members had a special interest.

The Court held that whether a particular association has a "special interest" in the subject matter of a proceeding depends on its constituent documents, purpose, activities and scale. While the special interest of its members was relevant, more is required to establish that an association itself has a special interest in the proceeding.

In dismissing the proceeding, the Court found that the Association did not satisfy the 'special interest' test and therefore did not have legal standing to challenge the Minister's decision because it lacked a history as a representative body for the people of Hawksdale. In particular, Justice Richards noted, "there is no evidence of any activity by the Association to represent its members' interests or pursue its objects, other than its commencement and pursuit of this proceeding".

Environmental protection

NSW: Changes to "designated development" classification open for public comment

The NSW Government is currently seeking feedback on proposed changes to the Environmental Planning and Assessment Regulation 2000 as set out in the exhibition draft of the proposed Environmental Planning and Assessment Regulation 2021 and supporting materials.

The proposed amendments are aimed at reducing administrative burden and increasing procedural efficiency, simplifying the planning system and establishing a modern and transparent planning system.

Of particular interest, amendments are proposed to improve the designated development provisions (development categories and definitions) and respond to recent changes in industry, technology, and broader policy reforms. These amendments include:

  • introducing new categories to capture emerging technology where they also require an environmental protection licence or other licence from the EPA, including energy recovery from waste, contaminated groundwater treatment, oil or petroleum waste storage, large-scale battery storage facilities, geosequestration and desalination systems or works;
  • excluding lower risk activities, such as low risk photovoltaic solar energy generation and smaller scale poultry farms;
  • aligning designated development categories with the Protection of the Environment Operations Act 1997 (NSW) where appropriate;
  • varying the concrete works, intensive livestock agriculture, and breweries and distilleries categories based on industry specific changes;
  • altering location-based triggers; and
  • altering exclusions to designated development to clarify provisions around DAs for alterations and additions and removing certain Local Environmental Plan and Regional Environmental Plan exemptions.

Submissions on the proposed Regulations can be made online until Wednesday, 22 September 2021.

QLD: Court decides preliminary question on executive officer liability for environmental harm

The Queensland Supreme Court has decided a preliminary point in the case of R v Dumble & Ors [2021] QCA 161 which sought to answer the following question:

"Is it necessary, pursuant to section 493(2) of the Environmental Protection Act 1994 (Qld) (the Act), that, for an executive officer of a corporation to be guilty of the offence of failing to ensure that the corporation complies with the Act (in circumstances where the corporation commits the offence of wilfully and unlawfully causing serious environmental harm), the serious environmental harm caused by the corporation must have come to fruition during the executive officer’s tenure as an executive officer?"

The case involved an underground coal gasification project carried out by Linc Energy Limited near Chinchilla. The prosecution alleged that the corporation had caused serious environmental harm in breach of section 437 of the EP Act and that the executive officers were, therefore, also guilty for failing to prevent the serious environmental harm under section 439 of the EP Act. While the prosecution had particularised the act performed by the corporation that resulted in serious environmental harm, they did not identify when exactly the serious environmental harm resulted from those acts.

The Court held that a corporation is taken to have committed an offence against section 437 of the EP Act when serious environmental harm results from a corporation's causative wilful act and a person who is an executive officer of the corporation when the harm is actually caused is guilty of an offence under section 493 of the EP Act, subject to statutory defences. Therefore, in order to establish executive officer liability for the offence of causing serious environmental harm (should the offence be proven) the prosecution is required to prove that the serious environmental harm occurred during the tenure of the executive officers.


Commonwealth: Trailing liability for offshore oil and gas companies

First released as a consultation draft in April 2021, the Offshore Petroleum and Greenhouse Gas Storage Amendment (Titles Administration and Other Measures) Bill 2021 (Cth) has now been passed and is currently awaiting assent.

Once the amendments commence, there will be tighter scrutiny with respect to the suitability of entities operating within Australia's offshore oil and gas industry and liability for the life of an offshore oil and gas project, including the decommissioning of infrastructure and remediation of the marine environment, will remain with the entity or entities who are or were responsible for, or had the capacity to influence, the carrying out of the project.

Climate change

Commonwealth: Developing a new National Climate Resilience and Adaptation Strategy – have your say

Earlier this year at the international Climate Adaptation Summit, the Commonwealth Minister for Environment committed Australia to developing a new National Climate Resilience and Adaptation Strategy and to joining the UK and more than 118 countries in the Call for Action on Raising Ambition for Climate Adaptation and Resilience.

The first Strategy was released in 2015 and gave an overview of how Australia was managing the risks of a variable and changing climate and identified a set of principles to guide effective adaptation practice and resilience-building as well as the Australian Government’s vision for a climate-resilient future.

The Commonwealth Department of Industry, Science, Energy and Resources is now taking steps to develop a new Strategy which will map out the pathway towards a climate resilient Australia by:

  • showcasing our national adaptation and resilience efforts; and
  • strengthening national co-ordination to manage physical climate impacts, including floods, bushfires, droughts, sea level rise and marine heatwaves.

Key to the new Strategy is the consideration of the Roles and Responsibilities for Climate Change Adaptation in Australia which were originally agreed in 2021 by the then Select Council on Climate Change. These are the roles and responsibilities that all levels of Government and the community have in adapting to the impacts of climate change have been summarised in the Department's factsheet.

To have your say about the new Strategy, complete the online survey by 5pm on Monday, 6 September 2021.


QLD: Northern, Southern and Central renewable energy zones – have your say

As part of its COVID-19 Economic Recovery Plan, the Queensland Government has established three Renewable Energy Zones (QREZ) which have been identified by the Australian Energy Market Operator as areas with high quality renewable resources, such as wind and solar, that can be developed in a coordinated way.

The Northern, Central and Southern QREZ, are areas of the Queensland electricity network that will become key sites for network investment and the streamlined development of renewable energy projects.

The process of developing the QREZ will involve extensive community consultation in order to maximise local benefits in the implementation. The Government has released a community consultation paper which identifies 4 proposed local benefit principles:

  • Principle 1: Genuine and ongoing engagement;
  • Principle 2: Shared benefits with communities;
  • Principle 3: Buy local, build local; and
  • Principle 4: Local jobs and secure work.

Feedback is now being sought about the proposed principles and experience with renewable energy development through an online survey or by drafting a submission by Thursday, 30 September 2021.

VIC: Updated guide for renewable energy developers released

The Victorian Government has announced a second Victorian Renewable Energy Target (VRET2) auction for at least 600 MW of renewable energy capacity across Victoria.

Following this announcement, the Department of Environment, Land, Water and Planning has released an updated version of its Community Engagement and Benefit Sharing in Renewable Energy Development in Victoria: A guide for renewable energy developers which sets out government expectations for the following and should be used by developers when making VRET2 project bids:

  • understanding community engagement;
  • understanding community benefit sharing; and
  • tools for enhancing social licence to operate outcomes.
Special thanks to Tahmyna Rad in our Sydney office, Bevan Willoughby in our Melbourne office and Clare Foran in our Brisbane 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.