Environment and Sustainable Development 5 Minute Fix 49: climate litigation and strategy, planning changes and general biodiversity duty

Climate change

Commonwealth

Federal Court rejects climate negligence claim by Torres Strait Islanders

On 15 July 2025, the Federal Court ruled in Pabai v Commonwealth of Australia (No 2) [2025] FCA 796 that the Commonwealth does not owe a duty of care to protect Torres Strait Islander communities from climate change.

Mr Pabai Pabai and Mr Guy Paul Kabai alleged the government had failed to take reasonable steps to protect their communities, culture, and environment. Justice Wigney dismissed the case, finding that:

• Core government policy decisions aren’t subject to common law duties of care.

• Australia’s limited emissions can't be directly linked to climate harm suffered by the plaintiffs.

• A duty of care wouldn’t compel science-based emissions targets, as political and economic factors also apply.

• Adaptation funding and priorities fall within government discretion.

• Cultural loss isn't recognised as actionable damage under current negligence law.

Justice Wigney noted the case failed due to legal limits – not a lack of evidence – and highlighted that change would require legislative or common law reform. For businesses, the ruling signals ongoing legal uncertainty but points to the potential for future regulatory shifts.

Victoria

EPA Victoria’s 2025-2027 Climate Strategy: targeting emissions, risks, and circular economy

The Environment Protection Authority Victoria (EPA) has released its Statement of Regulatory Intent on Climate Change 2025-2027 (SRI), outlining its regulatory strategy to address the causes and consequences of climate change. The SRI highlights three priority sectors:

1. Major emitters and energy users: Targeting emissions reductions from major emitters and energy users (landfills, industrial facilities, and oil and gas refineries), particularly corporations and facilities reporting under the National Greenhouse and Energy Reporting Scheme. Businesses holding EPA operating licences should incorporate these considerations into their risk management and monitoring programs.

2. Major industries with increased climate risks: The EPA will prioritise industries with permissions that face increased pollution and waste risks from climate change – such as landfills, wastewater treatment, e-waste processing, and waste-to-energy. It will support these sectors in assessing climate-related risks and, as awareness grows, raise expectations and take stronger action.

3. Circular economy: The EPA will focus on businesses managing organics, tyres, and e-waste, supporting them to meet their duty to consider alternatives to disposal in line with circular economy principles.

Businesses operating in Victoria should be aware of the EPA’s increasing focus on climate-related risks and emissions. Even if your business is not directly targeted by the SRI, compliance with the Environment Protection Act 2017 (Vic), including the general environmental duty, remains critical. Proactively addressing climate risks can also help businesses avoid regulatory scrutiny and align with broader sustainability goals.

Planning

Queensland

Changes to Queensland's planning framework

On 25 June 2025, the Planning (Social Impact and Community Benefit) and Other Legislation Amendment Act 2025 was passed by Queensland Parliament. The Amendment act introduces new obligations for renewable energy and wind farm projects, including:

• Conducting social impact assessments, to identify and analyse the proposed development and the potential impact on the social environment of the surrounding community.

• Entering into community benefit agreements with affected local government(s).

The Act also introduces changes to the Brisbane Olympic and Paralympic Games Arrangements Act 2021 (BOPGA Act), which streamlines planning pathways for Brisbane 2032 Olympic Games projects, exempting them from standard planning rules.

Renewable energy proponents in Queensland must now factor in social and community impacts as part of their project planning. These new requirements could affect project timelines, costs, and stakeholder engagement strategies. For businesses involved in Games-related developments, the streamlined planning pathways may present opportunities for expedited approvals.

Western Australia

Proposed amendments to WA's planning framework

The WA Government has proposed the Planning and Development Regulations Amendment (Review of Planning Instruments) Regulations 2025 (WA) 2025 to support changes to the Planning and Development Act 2005 and update the State’s planning framework, including amendments to Part 2 of the Local Planning Schemes Regulations 2015. The proposed amendments include:

• Mandatory 10-year reviews of local planning instruments, this includes reviews of planning codes, regional planning schemes, certain State planning instruments, and State planning policies.

• New provisions for local planning policies

• Clear guidance on circumstances where a local government is able to revoke an existing local development plan.

The consultation period will run from 4 July to 3 October 2025. Stakeholders should consider providing feedback to ensure their interests are represented.

Environmental protection

Queensland

Key updates to Queensland’s environmental protection laws: what you need to know

On 6 June 2025, the Environmental Legislation Amendment Regulation 2025 (the ELAR) came into effect, introducing changes to several environmental legislation in Queensland. The key amendments include:

• New PFAS waste thresholds: PFAS thresholds under the Environmental Protection Regulation 2019 have been revised, allowing materials with very low levels to be treated as non-regulated waste. Previously, any trace of PFAS classified waste as Category 1 regulated.

• Clarity on waste classification: The ELAR clarifies that intact or partly disassembled solar panels and contaminated soil are no longer considered as regulated waste under specific circumstances.

• Changes to wildlife classification: Wildlife classifications under the Nature Conservation (Animals) Regulation 2020 and Nature Conservation (Plants) Regulation 2020 have been updated, affecting nine fauna and 35 flora species. Some species have been reclassified to a higher level of endangerment. Developers should assess whether these changes impact the land they are planning to develop.

These changes provide greater flexibility for businesses managing PFAS waste and clarify obligations for handling certain materials. Understanding these updates can help businesses reduce compliance costs and avoid penalties.

South Australia

New general biodiversity duty and biodiversity protection regime for South Australia

The Biodiversity Act 2025 consolidates biodiversity protections and introduces:

• A general biodiversity duty requiring reasonable steps to prevent harm to biodiversity.

• New statutory bodies, including a Biodiversity Council and Aboriginal Biodiversity Committee.

• Increased penalties for breaches, with fines up to $1 million for corporations.

The Act will be implemented over two years, with existing laws remaining in effect during the transition.

Special thanks to Samuel Sunter (Melbourne), Ruby MacGregor (Melbourne), Nina Batra (Sydney), Sara Pezhhan (Perth), Aidan Bryant (Brisbane) and Mykaela Faulkner (Brisbane) for their contribution to this edition.