Environment and Planning 5 Minute Fix 26: New Zealand’s adaptation plan, mining leases, Tas EPA reform, WA streamlining

26 May 2022
Time to read: 5 minutes

Climate change

International: New Zealand’s first national adaptation plan will enable New Zealanders to build resilience

International: New Zealand’s first national adaptation plan will enable New Zealanders to build resilience  

The New Zealand Government has released the country’s first draft National Adaptation Plan aimed at addressing 43 priority risks that New Zealand currently faces from the impact of climate change from 2020–26. These priority risks were identified in the National Climate Change Risk Assessment published in 2020 and cover impacts from sea-level rises, extreme weather events, severe droughts and wildfires. The Plan is the first step in ensuring a long-term climate change adaption strategy and process in New Zealand over the next six years.

The actions within the Plan focus on six outcome areas: system-wide actions, natural environment, homes, buildings and places, infrastructure, communities, and economy and financial systems, with key legislative reforms including:

  • passing the National and Built Environments Act, an exposure draft of which was released for consultation last year and was the subject of inquiry by the Environment Select Committee. A copy of the Government’s response to the Committee’s report can be found here;
  • passing the Strategic Planning Act, the development of which will be overseen by a newly established interdepartmental executive board, the Strategic Planning Reform Board; and
  • introducing the Climate Adaptation Bill by the end of 2023 which will address the complex legal and technical issues associated with managed retreat and funding and financing adaptation.

This suite of legislation will underpin its managed retreat framework “to reduce or eliminate exposure to intolerable risk, which enables people to strategically relocate assets, activities, and sites of cultural significance (to Maori and non-Maori) away from areas at risk from climate change and natural hazards within a planned period of time”.

Some of the other critical actions the Plan proposes includes:

  • reforms to institutions, councils, regulatory frameworks so that they can better understand climate risk and prepare for and respond to climate change;
  • an update of building codes that require forward-looking to climate hazards;
  • strengthening protection of cultural heritage sites, such as marae (Maori meeting homes), and government-funded infrastructure adapt to climate risks;
  • assessment frameworks to help owners and developers to identify climate hazards relevant to their property;
  • supporting climate-related disclosures in the financial sector and expanding to cover a broader range of activities such as public entities at the national and local level;
  • ensuring the costs of a climate-resilience is meet by the tourism industry by reviewing the settings for the International Visitor Conservation and Tourism Levy so that international visitors can “contribute to resilient, adaptable infrastructure and the natural environment they use”; and
  • exploring options to support access and affordability of insurance for floods.

Feedback on the draft National Adaptation Plan is being sought by the Ministry of Environment with consultation having started 28 April and closing 3 June 2022.

This will be an interesting adaptation plan to watch, particularly the final form of the managed retreat framework to be enshrined in statute.

NSW: Reminder: Call for comments on the Clean Air Regulations

Public submissions on the Protection of the Environment Operations (Clean Air) Regulation 2022 will be open until 5pm on Friday 3 June 2022. The EPA is seeking feedback on three key proposals in the remade regulations:

  • to extend the summer period during which lower volatility petrol must be supplied to the NSW Greater Metropolitan Region;
  • to apply more stringent air emission standards to older activities and premises that started operating between 1979 and 1997; and
  • to require storage tanks, loading plants and vehicles storing volatile organic liquids to comply with stricter emissions limits.

The proposed changes are aimed at achieving cleaner air and creating a more level playing field among operators. Affected industries should consider the draft regulations in conjunction with the Regulatory Impact Statement (RIS) to assess how the new requirements may affect their business, including the proposed timelines and any anticipated costs.

See the EPA portal here for access to the draft regulation, RIS and to submit comments.

For our Insights about the Bill see here.


NSW: Timely (and expensive) reminder to report pollution incidents "immediately"

Cleanaway Equipment Services Pty Ltd has been fined $617,500.00 plus Environmental Protection Authority’s (EPA's) investigation costs of $110,778 and legal costs after pleading guilty to the commission of three pollution offences against sections 120 and 152 of the Protection of the Environment Operations Act 1997 (NSW).

The offences occurred in May 2020 after the solvent, Vivasol 2046, leaked from a pipe located on Cleanaway’s waste storage facility into Queanbeyan-Palerang Regional Council’s stormwater system, eventually spilling into the Molonglo River (the first offence). The site supervisor notified the EPA four hours after becoming aware of the pollution incident which was not in accordance with the statutory requirement to notify "immediately" after becoming aware a pollution incident (the second offence).

The following day, in an attempt to clean up the pollution, Cleanaway collected the contaminated water (some 9,000-10,000 litres) and disposed of it in a containment pit in its facility. The disposed water subsequently escaped back into Queanbeyan Council’s stormwater system and, again, spilled into the Molonglo River (the third offence).

This case serves as a reminder of the need to "immediately" notify the EPA that a reportable pollution incident has occurred.


NSW: Get ready – new standard conditions on mining leases

From 2 July 2022, mines with an Environmental Protection Licence will be subject to new standard conditions in Schedule 8A of the Mining Regulation 2016. To prepare for these changes, mining lease holders must register with the Resources Regulator Portal to access and submit forms and reports provided under Schedule 8A.

Lease holders will be further required to register the mine and all mining leases that constitute the mine and nominate a contact person to receive all formal correspondence from the NSW Resources Regulator. As part of these changes, proponents will need to upload spatial data related to mine rehabilitation via the Mine Rehabilitation Portal.

Further information regarding proponent requirements, including data preparation and submission assistance is available here.


SA: councils seek ACCC exemption for joint procurement

A total of 64 local councils and 7 associated local government entities have applied to the ACCC for authorisation to jointly tender for retail electricity services – both accredited renewable electricity and unspecified electricity. If successful, the authorisation will remain active for a period of 15 years. The applicants argue that permitting joint tender will lead to reduced energy costs and further support their transition to lower-emissions energy use. The applicants are seeking an interim authorisation to tender to the market until the ACCC assesses their application, which is not expected until August 2022.

Environmental protection

Vic: Trailing liabilities and the introduction of other changes to Victoria's mine rehab framework

The Victorian Government announced that it will be making a raft of changes to the state's mine rehabilitation regulatory framework. These changes will set new standards and impose further rehabilitation obligations on mine licensees. The changes will most significantly impact declared mines under the Mineral Resources (Sustainable Development) Act 1990 (Vic) (MRSD Act).

The suite of proposed changes include:

  • amending the MRSD Act to introduce trailing rehabilitation liabilities, or a "call back" power, whereby declared mine licensees will remain liable for rehabilitation of their sites post-closure. This will be based on the current regime applying to offshore oil and gas titleholders under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) (OPGGS Act);
  • releasing draft Declared Mine Regulations for public comment; and
  • reassessing rehabilitation bonds for declared mines in line with the recommendations of the Hazelwood Mine Fire Inquiry.

The creation of trailing liabilities for rehabilitation based on the OPGGS Act suggests that remedial directions will be able to be issued by the regulator to a potentially broad range of recipients which goes beyond the former mine licensees of the subject mine, and which may require a broad range of required actions be undertaken by the recipient of the direction.

The proposed amendments to the MRSD Act to introduce trailing rehabilitation liabilities will be the subject of a consultation paper later this year which will allow the community, mining industry, relevant agencies and other interested parties to have their say on the proposed changes.

Further, the draft New Regulations related to declared mines will shortly be released for public comment; and the reassessment of rehabilitation bonds for declared mines will occur later this year.

Tas: Legislative changes to separate EPA and grant new powers open for consultation

To implement the Tasmanian Government’s 2021 announcement of the structural and organisational separation of the Environment Protection Authority (EPA) from the Department of Natural Resources and Environment Tasmania (NRE Tas) the Environmental Management and Pollution Control Amendment Bill 2022 has now been released for consultation.

In addition to legally separating the EPA, the Bill:

  • describes the role of the EPA as well as the functions and powers of the EPA Board. One of the proposed powers of the EPA is the ability to make environmental monitoring information publicly available;
  • proposes to create a framework for Environmental Standards and Technical Standards which will streamline and guide the methods for managing "environmentally significant activities".

It is proposed that the Environmental Standards will include their own conditions which can be imposed on permits, environmental licenses, site management notices or environment protection notices.  The specific standards themselves will be an instrument of the Environmental Management and Pollution Control Act 1994 and will therefore, undergo their own consultation process.

See the Explanatory Paper here for further information about the Bill.

NRE Tas is currently seeking public submission on the draft Bill. Public submissions can be made by email before Friday 3 June.

WA: Reducing reporting and monitoring requirements for low and medium-risk industry licences

The WA Government has unveiled its Reduced Reporting Burden Pilot project (a Streamline WA initiative) which eases reporting requirements for licence-holders deemed by the Western Australian environment department to be low or medium-risk.

The Notice of Amendment sets out the changes which came into effect on Monday, 16 May 2022 which includes the following:

  • licences listed in schedule 1 are amended to:
    • remove the requirement to submit an Annual Environmental Report; and
    • include a new condition which requires the licence holder to undertake an audit of their compliance with the conditions of the licence during the preceding annual period; and prepare and submit to the CEO by the date specified in Schedule 1 an Annual Audit Compliance Report in the approved form; and
  • licences listed in schedule 2 are amended to reduce the frequency of environmental reporting from annual to biennial.

NT: Draft guidance material about culture, heritage and greenhouse gases for environmental impact assessment released: have your say

In the Northern Territory, a proposed action that has the potential to have a significant impact on the environment must be referred to the Northern Territory Environment Protection

Authority (NT EPA) for assessment under the Environmental Protection Act 2019 (EP Act). After referral, the NT EPA decides whether that proposed action requires environmental impact assessment by  assessing the significance, and impact, of a proposed action on identified environmental factors and objectives.

The NT EPA has now released draft technical guidance documents with respect to the environmental factors of Culture and heritage and Atmospheric processes for consultation. In addition to providing advice on the proponent’s obligations under the EP Act, the draft guidance documents provide advice about:

Culture and heritage – when there is potential for significant impacts to heritage and/or Aboriginal cultural values, the assessment of potentially significant impacts to heritage and/or Aboriginal cultural values, and the requirements of assessment documentation relating to this environmental factor.

Atmospheric processes – when to refer a proposed action based on greenhouse gas emissions and the requirements of assessment documentation relating to this environmental factor. In line with the Territory’s Greenhouse Gas Emissions Management for New and Expanding Large Emitters (the Large Emitters Policy) which was released on 1 September 2021, the new guidance document relevantly provides that a proponent is to refer a proposed action to the NT EPA if its emissions exceed:

  • For an industrial proposed action: 100 000 tonnes carbon dioxide equivalent (tCO2-e) (scope 1) in any financial year over the life cycle of a proposed action.
  • For a land use proposed action: 500 000 tCO2-e (scope 1) generated from a single clearing action, or cumulatively from multiple land clearing actions on a property over time.

The guidance documents also provides that a proponent should consider referring a proposed action if the emissions from a proposed action are below but close to the above thresholds. The NT EPA also has the power to call-in a proposed action that has emissions below the guiding thresholds.

Under the guidance document the NT EPA will require the following information from proponents for proposed actions and expanding actions that meet the above thresholds:

  • Estimated emissions – estimates of annual and total scope 1, scope 2 and scope 3 emissions over the life of the action, a breakdown of scope 1, scope 2 and scope 3 emissions according to the emission source locations of within the NT and/or elsewhere in Australia and/ or outside of Australia, a breakdown of emissions by source, and a comparison of estimated emissions against Northern Territory and Australian greenhouse gas emissions, as reported in Australia’s National Greenhouse Accounts.
  • Emissions management – how the proposed action will contribute to the NT’s target of zero net emissions by 2050.
  • Greenhouse gas abatement plan – addressing scope 1 emissions, and where the action includes scope 2 emissions, those scope 2 emissions.

Submissions on the draft guidance documents can be made until Tuesday, 28 June 2022.

Special thanks to Grace Scanlon (Brisbane), Kate Wilkes (Perth), Alana Ticchi (Melbourne) and Lauren Parnaby, Rebecca Elder and George Stribling (Sydney) 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.