15 Apr 2021

Environment and Planning 5 Minute Fix 12: resources, planning and environmental protection

BY THE ENVIRONMENT AND PLANNING TEAM

The Environment and Planning 5 Minute Fix gives you a snapshot of what you need to know across a range of environment and planning issues across the country. This edition focuses on the latest in resources, planning and environmental protection.

Resources

Commonwealth: Bill requiring "benefit to Australia" when granting and renewing offshore petroleum leases re-referred for inquiry and report

On 4 February 2021, the Offshore Petroleum and Greenhouse Gas Storage Amendment (Benefit to Australia) Bill 2020, a private members Bill, was referred to the Senate Economics Legislation Committee for inquiry and report by 11 March 2021. The Bill seeks to broaden the objects clause of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) "to ensure that the exploitation of these natural resources is for the benefit of the Australian community" when granting new leases and renewing existing leases.

The Committee released its report on 11 March 2021, which recommended that the Bill not be passed, however the Bill has been re-referred to the Committee for further inquiry and report by 6 May 2021, with particular reference to:

  • retention leases;
  • decommissioning costs; and
  • offshore domestic gas reserve obligations.

Commonwealth: Draft Bill proposes to strengthen liability, oversight and company scrutiny for offshore oil and gas companies

The Commonwealth Government has released the draft Offshore Petroleum and Greenhouse Gas Storage Amendment (Titles Administration and Other Measures) Bill 2021 for public consultation. The Bill proposes to tighten the liability and company scrutiny parameters of Australia's offshore oil and gas regulatory framework and give effect to the recommendations from the "Independent review into the circumstances leading to the administration and liquidation of Northern Oil Gas Australia" (the Walker Review).

The key amendments proposed by the Bill relate to:

  • increased oversight of changes in titleholder ownership and company control;
  • expansion of the existing "trailing liability" provisions which allow the titleholder to be "called back" to decommission and remediate the environment so that they apply to a wider class of persons including a person who significantly benefits financially, a person in a position of influence and a person who acts as a joint titleholder; and
  • the inclusion of decision-making criteria and expanded information gathering powers to assess the suitability of operating within Australia's offshore oil and gas industry.

Submissions on the draft Bill can be made until Friday, 23 April 2021 in the manner prescribed here.

NSW: Consultation on new mining lease rehabilitation guidelines now open

The NSW Government has released the following new guidelines for consultation which are aimed at assisting leaseholders to comply with the changes to the new standard mining lease conditions relating to mine rehabilitation:

  • Guideline 1: Rehabilitation Risk Assessment
  • Guideline 2: Rehabilitation Records
  • Guideline 3: Rehabilitation Controls
  • Guideline 4: Mine Rehabilitation Portal
  • Guideline 5: Rehabilitation Objectives and Rehabilitation Completion Criteria
  • Guideline 6: Achieving Rehabilitation Completion (Sign-Off)

The public consultation period will close on 30 April 2021. For more information, see NSW Government releases six guidelines to support mine rehabilitation reforms.

Victoria: Permanent prohibition on hydraulic fracturing and coal seam gas exploration and mining

In 2017, hydraulic fracturing was banned in Victoria and a moratorium on onshore petroleum exploration and production was imposed until 30 June 2020.

The ban on hydraulic fracturing will now be enshrined in the Victorian Constitution with the commencement of the Constitution Amendment (Fracking Ban) Act 2021 (Vic) on 17 March 2021 to prevent the Victorian Parliament making laws that change or repeal statutory provisions that prohibit hydraulic fracturing and coal seam gas exploration and mining.

The moratorium that was imposed in 2017 was subsequently extended until 30 June 2021 by the Petroleum Legislation Amendment Act 2020 (Vic) and onshore conventional petroleum exploration and production will restart on 1 July 2021. The sunset date for the Petroleum Regulations 2011 (Vic), which regulate onshore conventional gas, is 24 May 2021 and it is understood that new regulations will be the subject of public consultation in April 2021.

Victoria: Rehabilitation bond calculator for exploration, mining and quarrying updated

In March 2021 the Victorian Government updated its mining rehabilitation bond calculator for the first time in 10 years to, amongst other things, include other common rehabilitation activities, such as monitoring and maintenance (for example dust control, water treatment and site security).

The rehabilitation bond calculator allows mine and quarry operators to estimate the cost of site rehabilitation at the start of their exploration, mine or quarry project or prior to them completing the resource extraction. Once the site rehabilitation has been calculated, the operator lodges a bond with Earth Resources Regulation, which can be used to cover the costs of rehabilitating the site in the event the operator defaults on their statutory obligations.

Planning

SA: Planning and Design Code now active across all South Australia

The SA State Government’s Planning and Design Code, which was implemented in rural and outback areas over previous years, was rolled out across metropolitan South Australia on 19 March 2021.

The Planning and Design Code, which has been the subject of extensive public consultation, will consolidate the State’s 72 Development Plans to improve certainty and consistency in decision-making across the State will all development to now be assessed against the Code.

Environmental protection

Commonwealth: National Standard for the environmental risks of industrial chemicals passed

On 18 March 2021, the Industrial Chemicals Environmental Management (Register) Bill 2020 (ICEMR) was finally passed by both the House of Representatives and the Senate.

The ICEMR empowers the Minister to make the Industrial Chemicals Environmental Management (Register) Principles 2020, which sets out the criteria used to classify industrial chemicals by both the chemicals inherent characteristics and its proposed use. The Minister will then be able to make classification decisions around how the chemical is used, handled or discarded with such decisions to be recorded on the Industrial Chemicals Environmental Management (Register) Instrument 2020.

For more information about the ICEMR, see Closing in on a National Standard for the Environmental Risks of Industrial Chemicals.

Queensland: Draft guideline for new Great Barrier Reef sediment and nutrient emission standards – have your say

In advance of the 1 June 2021 commencement of the new sediment and nutrient emission standards for new, expanded or intensified point source activities under the Reef protection regulations, the Department of Environment and Science (DES) has released the draft guideline Application requirements for activities that release particular contaminants to the Great Barrier Reef catchment (GBR) waters for consultation.

Once finalised, the purpose of the guideline will be to:

  • assist applicants in making environmental authority (EA) applications, where there are impacts to the Great Barrier Reef (GBR) catchment waters from the release of fine sediment and dissolved inorganic nitrogen; and
  • describe the way DES will assess an EA application in accordance with section 41AA of the Environmental Protection Regulation 2019 (Qld) which requires refusal of an EA application where the relevant activity will, or may, have a residual impact.

Submissions on the draft guideline can be made until 5pm Friday, 16 April 2021.

NSW: 2022 ban on the use of PFAS fire-fighting foams

On 1 March 2021, the NSW Government introduced the Environment Operations (General) Amendment (PFAS Firefighting Foam) Regulation 2021. The Regulation will amend the Protection of the Environment Operations (General) Regulation 2009 and impose a ban on the use of per- and poly- fluoroalkyl substances (PFAS) except where the discharge of PFAS-containing foam is to extinguish a catastrophic fire or to suppress a fire on a boat.

The EPA may also grant an exemption from the ban.

For more information about the ban on PFAS fire-fighting foams see NSW introduces ban to prevent PFAS contamination.

NSW: NSW EPA proposing new air emission limits for energy from waste projects – have your say

The NSW Energy from Waste Policy Statement (Policy Statement) provides a framework and criteria for facilities in NSW treating waste and associated materials thermally, assisting in energy resourcing. The NSW Government has now released a draft Policy Statement which contains revisions aimed at implementing recommendations made by the Chief Scientist and Engineer as part of a review of Energy from Waste in NSW to adopt international best practice standards.

Submissions on the draft revised Policy Statement can be made until 5.00pm 30 April 2021.

Victoria: New environmental law start date proclaimed

The commencement date for the Environment Protection Amendment Act 2018 (Vic) is 1 July 2021. This is the start of a new environment protection regime for Victoria. Significant reforms introduced by the Act, including the introduction of a General Environmental Duty, will shift the regime to a more preventative and duties-based approach. Our latest Alert on the proclamation sets out more information on what you need to know and what you need to do in response.

Special thanks to Luke Lindley and Clare Foran in our Brisbane office, Jessie Layman and Bridget Lorenz in our Melbourne office, Scott Howieson in our Perth office and Victoria Hu, Cloe Jolly and Tahmyna Rad in our Sydney office for their contribution to this edition.

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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.