Environment and Planning 5 Minute Fix 18: climate change, biodiversity, infrastructure, renewable energy

30 Sep 2021
5 minutes


NSW: Amendments to the Infrastructure SEPP for renewable energy projects – have your say

The NSW Government is seeking feedback on proposed changes to the State Environmental Planning Policy (Infrastructure) 2007 aimed at managing land use conflicts associated with utility-scale solar and wind energy developments in regional cities.

The proposed amendments will require consent authorities to consider whether proposed renewable energy projects:

  • conflict with an existing or approved land use;
  • significantly impact land needed to support growth of a regional city; or
  • significantly impact the scenic quality and landscape of a city.

Submissions on the proposed amendments can be made until Monday, 11 October 2021.


QLD: Draft State Infrastructure Strategy – have your say

The Queensland Government has released for consultation a summary and draft State Infrastructure Strategy which sets out the State infrastructure plans for the next two decades.

The draft Strategy includes 148 state-wide priorities within a framework of five focus areas:

  1. Realising our future as a renewable energy superpower;
  2. Connecting our regions;
  3. Creating liveable communities;
  4. Building a 2032 Games legacy; and
  5. Driving infrastructure performance.

Submissions on the draft Strategy can be made online until Thursday, 7 October 2021.

Environmental protection

Commonwealth: Review of decision to have recovery plans for threatened species and ecological communities – have your say

The Commonwealth Department of Agriculture, Water and the Environment is working with the independent Threatened Species Scientific Committee to review previous recovery plan decisions for a number species and ecological communities listed as threatened under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

The Committee's remit is set out in the plan Ongoing modernisation of conservation planning under the EPBC Act and the aim is to ensure that the plans in place are fit-for-purpose, efficient and best practice.

The Committee has recommended that recovery plans for 185 threatened species and ecological communities may no longer be needed in addition to the conservation advices that exist for each. The Department is now seeking feedback on the proposed changes by Tuesday, 2 November 2021.

WA: Logging of native forests to be banned from 2024

The McGowan Government has announced that it will ban logging of WA native forests from 2024 and has committed $350 million to softwood plantations across the state’s south-west, as part of the State’s budget for 2021-2022. The aim of this decision is to protect 400,000 hectares of new-growth karri, jarrah and wandoo forests, as logging is phased out at the end of the current Forest Management Plan.

The $350 million commitment will facilitate predominantly pine plantations, and will be rolled out over the next 10 years. That commitment will be accompanied by a $50 million transition plan for the timber industry. It is understood that work has commenced on the next Forest Management Plan 2024-33 which will involve extensive stakeholder consultation.


WA: Mineral and petroleum resources development strategy released

The WA Government has released a mineral and petroleum resource development strategy which outlines the targeted actions for the following six strategic priorities aimed at positioning the State as a word-leader in the sustainable development of its resources:

  • Strategic priority 1: A leading global destination for exploration investment
  • Strategic priority 2: An environmentally and socially responsible industry
  • Strategic priority 3: An industry that is efficiently and effectively regulated
  • Strategic priority 4: An evolving industry
  • Strategic priority 5: An innovative industry
  • Strategic priority 6: Maximising benefits for all Western Australians

The strategy acknowledges the delicate balancing act between streamlining approvals and meeting the increasing number of ESG challenges in the modern world. The State's goal is to achieve efficient and effective regulation by reforming legislation in key areas, examples include the recent amendments to the Environmental Protection Act 1986, the introduction of the Work Health and Safety Act 2020, and the proposed reform of Aboriginal Cultural Heritage legislation.

In order to position the State for the shift away from carbon intensive energy generation, the strategy recognises the potential of a future battery production industry focusing on production and processing of lithium and rare earth elements, and promotes investment in renewable hydrogen, in which the State hopes to become a significant producer, exporter and user.

Climate change

NSW: Vickery Coal Mine extension project approved with appeal on duty of care pending

In June 2021, the Federal Court found that the Commonwealth Environment Minister owes a duty of care not to cause harm when exercising her powers under sections 130 and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to grant an environmental approval that is required for the proposed Vickery Coal Mine extension project (Sharma decision). The Federal Court made its final orders in July 2021 and the Minister subsequently appealed the decision. The appeal is scheduled to be heard on 18 to 20 October.

On 15 September 2021, the Environment Minister decided to approve Vickery Coal Mine extension project under the EPBC Act subject to conditions to minimise water impacts and to compensate for residual impacts of the action on EPBC Act listed threatened species and communities.

In the Statement of Reasons for the approval, the Minister noted that notwithstanding the appeal of the Sharma decision, in making the decision with regards to the Vickery Coal Mine extension project the Minister gave "elevated weight" to human safety and:

"had regard to the impacts of the proposed action on the lives and safety of Australian children and my duty to take reasonable care, in the exercise of my powers under ss 130 and 133 of the EPBC Act, to avoid causing personal injury or death to persons under 18 years of age and ordinarily resident in Australia, arising from emissions of carbon dioxide into the Earth's atmosphere."

The Minister's consideration in that regard included the following:

  • global coal markets and the likelihood of the proposed action's emissions increasing global GHG emissions;
  • how GHG emissions are managed under international and national frameworks;
  • the GHG emissions for the proposed action, measures being undertaken by the company to manage the proposed action and Independent Planning Commission (IPC) Assessment;
  • risks of a warming climate; and
  • social and economic considerations.

Interestingly, the Minister found that the NSW approval conditions imposed to ensure that the proposed action's emissions are minimised to the greatest extent possible by applying best practice in GHG emissions reductions for Scope 1 and 2 emissions only were sufficient because:

  • the combustion of the coal will occur in an overseas country (the consumer country); and
  • the scope 3 emissions will become the consumer country's scope 1 and 2 emissions and will be accounted for under the Paris Agreement by that consumer country.

TAS: Proposed changes to climate laws on the cards in Tasmania

Tasmania's acting Minister for Climate Change, Jeremy Rockliff MP, has announced an intention to amend the Climate Change (State Action) Act 2008 (Tas) following the latest statutory independent review by Jacobs Australia Pty Ltd.

While the nature and extent of the proposed amendments have not yet been made clear, the independent review recommended the following seven legislative measures be implemented:

  1. legislate that net emissions (gross emissions less any carbon removals) are not to exceed net zero beyond 31 December 2030;
  2. consolidate the existing objects of the Act around five themes - targets and reporting, actions to reduce Green House Gas emissions, adaptation to projected climate change, complementarity with national and international climate change responses, and engagement and partnership;
  3. include a set of principles to guide climate action, such as sustainable development and social equity, transparency and reporting, science-based approach, integrated decision-making, risk management, community engagement, and complementarity;
  4. include the consideration of climate change in the development of relevant government policies, planning, and strategies;
  5. make the development of a Climate Action Plan a statutory requirement;
  6. require a 5-yearly State-wide climate change risk assessment to be completed; and
  7. include the completion of sector based Decarbonisation & Resilience Plans.

A Bill is expected to be introduced to Parliament later this year.


QLD: Ban on single-use plastics in Queensland has commenced

From 1 September, a person who conducts a business or undertaking must not, in the course of conducting the business or undertaking, sell a banned single-use plastic item to another person unless they are an exempt business or undertaking (eg a healthcare business such as hospitals, dental clinics and medical clinics). The single-use plastic items which are banned include straws, stirrers, plates and cutlery as well as takeaway containers and cups made from expanded polystyrene.

The ban is part of the Queensland Government's Waste Management and Resource Recovery Strategy, released on 1 July 2019, which aims to reduce plastic waste and environmental and economic impacts of plastic pollution.

Special thanks to Tahmyna Rad (Sydney), Scott Howieson (Perth), Bevan Willoughby (Melbourne) and Clare Foran (Brisbane) 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.