Environment and Planning 5 Minute Fix 25: climate change, waste, energy, environmental protection

28 Apr 2022

Environmental, Social, and Corporate Governance (ESG)

Commonwealth: Australian Accounting Standards Board to Develop Sustainability Standards: have your say

Following the International Sustainability Standards Board’s (ISSB) work in developing standards to address disclosures of climate-related and sustainability related financial information, the Australian Accounting Standards Board (AASB) is looking to use the ISSB standards (currently released as an exposure draft for consultation) as a foundation to develop a specific set of standards that are fit for the Australian context.

To inform its own submission on the exposure draft and any possible future development of a separate suite of Australian sustainability reporting standards, the AASB is now requesting comments on the ISSB’s Exposure Drafts IFRS S1 General Requirements for Disclosure of Sustainability-related Financial Information and IFRS S2 Climate-related Disclosures until 15 July 2022.


NSW: Design and Place SEPP will not be introduced

NSW Planning Minister Anthony Roberts has stated that he will not be introducing the Design and Place State Environmental Planning Policy (DP SEPP) following consultation with industry and stakeholder group during its public exhibition period this time last year. The DP SEPP was labelled by Mr Roberts’ predecessor, Rob Stokes, as “NSW’s first comprehensive design policy”, and proposed requirements for new commercial buildings to be net zero carbon emissions from the outset, electric vehicle charging stations to be installed in apartment blocks, minimum tree cover for housing developments and the development of more walkable suburbs.

Environmental protection

Commonwealth: The new way forward now live – streamlining the EPBC Act referral process

The new EPBC Act Business Portal is officially live having replaced the Online Services EPBC Referral form. Some of the key new features include the removal of duplication efforts via an autofill tool, greater transparency through an online list of assessments and status, whereby proponents can track progress and receive notifications of changes, and a streamlined process by simplifying and automating the EPBC Referral form.

Existing validated referral, assessments and approvals have been migrated to the new EPBC Act Business Portal and simply require a proponent to create a new account to access the relevant project. Draft unvalidated referrals or new referrals will also require a new account and for proponents to complete the new process and from in the EPBC Act Business Portal.

See here for further detail on the new Portal.

VIC: New Environment Reference Standard for ambient air quality gazetted

On 29 March 2022, the Victorian government gazetted amendments to the Environment Reference Standard (ERS) made under the Environment Protection Act 2017 for ambient air quality to (amongst other things) incorporate tightened air quality standards for ozone (O3), nitrogen dioxide (NO2) and sulfur dioxide (SO2). The amendments adopt even more stringent standards for both ozone and sulphur dioxide, which EPA Chief Executive Lee Miezis has stated is in recognition of Victoria’s "growing overall population and especially people aged 65 and over".

An ERS provides a reference for decision makers for consideration during the decision-making process and does not:

  • create specific obligations that must be followed;
  • set out enforceable compliance limits; or
  • describe levels that it is okay to pollute up to.

Further information about how an ERS is applied and will be considered by decision-makers can be found here.

VIC: Victorians asked to share views on 2035 emissions reduction target

Victoria’s Climate Change Act 2017 set a target of net zero greenhouse emissions by 2050 and required that the Government set short term targets to reach this goal. The following short terms goals have already been set, with a 2035 goal to be set by 31 March 2023:

  • 2020 Target – cut emissions by 15-20% below 2005 levels;
  • 2025 Target – cut emissions by 28-33% below 2005 levels; and
  • 2030 Target – cut emissions by 45-50% below 2005 levels.

The Minister for Energy, Environment and Climate Change has asked an independent panel of experts to advise on a target for 2035, the best action to reach that target and what the pathways to net zero emissions by 2050 could look like.

The Panel is now seeking the views of Victorians to inform its advice to the Minister until 22 May 2022 via written submissions or a survey.  It is understood that following consultation, the Panel will prepare a report with its advice by 1 March 2023.

TAS: Legislative changes for dealing with "clean fill" now in effect

TAS: Legislative changes for dealing with "clean fill" now in effect

On 29 March 2022 amendments to both the Environmental Management and Pollution Control Act 1994 (EMPCA) Environmental Management and Pollution Control (Waste Management) Regulations 2020 which relate to "clean fill" came into effect and most notably:

  • "clean fill" is now split into two types – type 1 relates to natural materials and type 2 relates to construction materials;
  • "clean fill" is no longer exempt from the waste regulations and must now be disposed of in accordance with legislation. Therefore, as of 29 March 2022, land can no longer be used for the disposal of clean fill without a relevant authority (such as a permit) or in accordance with an Approved Management Method (AMM) for clean fill. It is understood that public consultation on more detailed clean fill management will be undertaken, however in the interim temporary AMM for clean fill is currently in place until 31 March 2023 to allow small-scale uses to continue during the transition period without the need to apply for a permit or other authority; and
  • the Director can issue a declaration specifying the make-up of "clean fill" material.

NSW: New guidance released to achieve best practice Biodiversity Development Assessment Reports

The NSW Department of Planning and Environment has released the Guidance for the Biodiversity Development Assessment Report Template which is a tool for Accredited Assessors and Local Government officers to use when preparing or assess Biodiversity Development Assessment Reports (BDARs). The comprehensive guidance provides information on a developed BDAR template and template linkages with the Biodiversity Assessment Method, operational manuals and other resources and guidelines relevant to BDARs. The template sets out the minimum requirements for a BDAR to be prepared in accordance with the Biodiversity Assessment Method 2020 and is intended to increase best practice for handling BDAR documents.

Special thanks to Grace Scanlon (Brisbane), Sophie Dole (Melbourne), George Stribling and Lauren Parnaby (Sydney) for their contribution to this edition.



Commonwealth: Third time’s a charm? Minister’s latest bid to expand ARENA’s remit beyond renewable technologies

The Minister for Industry, Energy and Emissions Reduction, Angus Taylor MP, has gazetted the Australian Renewable Energy Agency Amendment (Clean Energy Technologies) Regulations 2022 which is to amend the Australian Renewable Energy Agency Regulation 2016 to include a new function for the Australian Renewable Energy Agency (ARENA) to support clean energy technologies. Clean energy technologies include energy efficient, low-emissions and renewable energy technologies as defined in section 60 of the Clean Energy Finance Corporation Act 2012.

The Minister has previously attempted to expand ARENA’s remit beyond renewable technologies on two previous occasions, only to have those attempts blocked by Senate disallowance motions.

Unless again disallowed, under the new Regulations ARENA will be able to provide financial assistance for a range of clean energy related activities such as research, development and demonstration, commercialisation or deployment, storage and sharing of information and knowledge about clean energy technologies.

Climate change

International: Working Group III climate mitigation contribution to IPCC Sixth Assessment Report finalised

The Working Group III of the Intergovernmental Panel on Climate Change (IPCC) released its contribution Climate Change 2022: Mitigation of Climate Change to the Sixth Assessment Report of the IPCC on 4 April 2022.

Working Group I focused on the physical scientific basis for climate change while Working Group II focused on climate change impacts, adaption and vulnerability. More information on Working Group II can be found here.

Now, Working Group III provides an overview of climate change mitigation progress, and examines the sources of global emissions. Some of the main developments considered in this report include:

  • the evolving international landscape and the role of international cooperation, finance and innovation;
  • diversity of actors and approaches to mitigation;
  • the connection between climate change mitigation and development pathways; and
  • increasing diversity of analytic frameworks from multiple disciplines, such as the social sciences.

The Synthesis Report, which will combine the three Working Group reports as well as three Special Reports, will be the last of the Sixth Assessment Report products. It is scheduled to be released in September 2022.

NSW: NSW IPC determines that it is not “reasonable or appropriate” to require mines to offset all emissions

The NSW Independent Planning Commission (IPC) has granted conditional consent to Whitehaven Coal for its Narrabri Underground Mine Stage 3 Extension Project which extends existing mining operations until 2044 (the Project), deeming it in the public interest to do so.

In its Statement of Reasons, the IPC stated that the Project was not inconsistent with ecologically sustainable development principles, Australia’s Paris Agreement obligations nor with State or Commonwealth policies and further noted that greenhouse gas emissions (GHG) reductions policy positions must be balanced with the strategic importance of continued mining operations for the NSW economy.

The IPC found that “the Project’s Scope 1 and Scope 2 emissions have been estimated using the recommended methodologies consistent with current national and NSW policy settings and commitments”, with Whitehaven Coal required to offset any GHG emissions that exceed specific performance measures as set by the IPC.

With regards to Scope 3 emissions, the IPC acknowledged “that while the Project’s Scope 3 emissions would contribute to anthropogenic climate change, they are more appropriately regulated and accounted for through broader national policies and international agreement (such as the Paris Agreement).”


VIC: Have your say on approach to banning single-use plastic items

The Victoria Government has released the draft Environment Protection Amendment (Banning Single-Use Plastic Items) Regulations 2022 and the Regulatory Impact Statement (RIS) for public consultation.

The object of the new Regulations is to amend the Environment Protection Regulations 2021 to ban the sale, supply, distribution or provision of single-use plastic items including:

  • drinking straws;
  • cutlery, including knives, forks, spoons, chopsticks, splades, food picks and sporks;
  • plates;
  • drink stirrers or sticks;
  • expanded polystyrene food service items, including plates, cups, bowls, clam shells and any cover or lid;
  • expanded polystyrene drink containers, including any cover or lid of such a container;
  • cotton bud sticks.

The proposed ban on the sale and supply of these items will commence from 1 February 2023 (subject to exemptions) and as set out in the RIS, the Government is considering two options for the approach to implement this ban with respect to "integrated items".

An "integrated item" means a plastic item that is, as the result of a machine automated process:

  • an integrated part of packaging material used to seal or contain food or beverages; or
  • included within or attached to packaging material used to seal or contain food or beverages, including pre-packaged portions of food or beverages.

The two options which the Government is considering are:

  • option 1 – ban of items, with an exemption for "integrated items" until 31 December 2025. The Government has identified this as the preferred option as it avoids the implementation risks associated with banning "integrated items" from 1 February 2023; and
  • option 2 – ban of items, with no exemption for "integrated items".

Feedback on the draft Regulations and RIS can be made until no later than 11.59pm on Sunday, 15 May 2022.

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.