04 Mar 2013

People power will drive environment and planning law reform in 2013

Perth, 4 March 2013: Community concern will continue to be a key driver of legislative change in the area of environment and planning in 2013, according to Clayton Utz Environment and Planning partner Brad Wylynko.

Mr Wylynko, who co-ordinated the annual Clayton Utz Environment and Planning Law National Review 2012 (PDF 665.7KB) which provides an overview of planning and environment law developments and trends by state and territory, said governments were increasingly being forced to respond to community concerns over the actual or potential environmental impacts of project and related activity by amending existing, or introducing new, laws.

"The theme in 2012 could very well have been legislation in response to community pressure," said Mr Wylynko. "For example, although the NSW parliament passed legislation aimed at reducing the number and severity of provisions making directors and officers liable for the offences of corporations, it also introduced new "special executive liability" provisions for designated tier 1 and 2 environmental offences. This was justified on the basis of "compelling public policy" reasons. That means that while there has been a significant easing of the personal burden of directors and managers for their companies' behaviour in NSW, the burden remains for many environmental offences," he said.

At the Commonwealth level, project-specific amendments to the Environment Protection and Biodiversity Conservation Act in 2012 followed community opposition to the FV Abel Tasman super trawler, while Western Australia introduced new laws regulating all petroleum and geothermal activities in that state in response to growing public concern over the hydraulic fracturing of gas reserves.

"It’s clear that such community concern over environmental issues continues to grow, and further major legislative changes can be expected in 2013," said Mr Wylynko.

Further reforms to state planning regimes was another development likely to play out further in 2013, according to Mr Wylynko. "Across the country governments are seeing a need for fundamental reforms in this area. New South Wales and Queensland have made significant changes to how they deal with significant projects, but they, along with Victoria and Western Australia, will be considering further significant changes in the coming year," he said.

These reforms have the potential to make planning systems across Australia more streamlined and efficient. "Governments are recognising the impact that complex approvals systems can have both on development and heritage. If they strike the right balance, these reforms have the potential to unlock future investment and development, but without sacrificing biodiversity and our quality of life. Community concerns and pressure will play a key role in this."

Among other changes and developments in 2012 across Australia were:

  • the introduction of significant additional obligations for the reporting and management of pollution incidents in NSW, as well as increased penalties of up to $2 million for corporations and $500,000 for individuals;
  • the establishment of a new independent Planning Commission in the Northern Territory to bring a new focus to strategic planning, and a new Environment Protection Authority;
  • in Queensland, changes to the environmental assessment process for "coordinated projects", previously known as "significant projects"; a record fine of $500,000 was also imposed on the former owners of a mine in central Queensland for discharging contaminated water in breach of the relevant law;
  • new guidance issued for corporations in South Australia on complying with the state's increasingly sophisticated waste management regime;
  • the streamlining of the heritage listing process in Tasmania;
  • greater guidance in Victoria on its Environment Protection Authority's enforcement and compliance focus;and
  • new administration procedures for environmental impact assessments in Western Australia.

"The other very significant development in 2012 was the introduction of the carbon price mechanism half-way through 2012. There has been a lot of public debate about this, but we really won't see its full impact until June 2013, when the first period of emissions liability falls due," said Mr Wylynko.

The national head of Clayton Utz's Environment and Planning practice, Andrew Poulos, said environment and planning law remained one of the most dynamic areas of law in Australia, encompassing significant and complex legislation, regulatory instruments, policy statements and case law across a number of different industry sectors.

"The Environment and Planning Law National Review 2012 (PDF 665.7KB) is a handy reference tool for understanding what has changed and what changes are likely to expect in 2013," he said.

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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.