10 Jun 2021

Environment and Planning 5 Minute Fix 14: planning, 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 Planning and Environmental Protection.

Planning

NT: Discussion paper to inform Palmerston Environs Subregional Land Use Plan – have your say

The Northern Territory Planning Commission has released a Discussion Paper as part of a three-stage planning process for the development of a subregional land use plan for the future growth of the areas surrounding Palmerston city (referred to as the environs of Palmerston which includes Greater 11 Mile, Greater Holtze, Virginia South-West, Archer and Mitchell West).

The purpose of the Palmerston Environs Subregional Land Use Plan will be to build on the broader future growth directions contained in the overarching Darwin Regional Land Use Plan 2015.

The Discussion Paper discusses the planning themes for the Palmerston Environs which affect land use and the future growth of this area. Submissions to the Planning Commission on the Discussion Paper are due by Friday, 25 June 2021.

WA: Phase 2 of WA’s Planning Reforms open for consultation – have your say

The WA Department of Planning, Lands and Heritage has released for consultation an updated action plan for planning reform, describing potential reforms for phase 2. Feedback on the consultation material is set to shape a second round of legislative changes to the Planning and Development Act 2005, expected to be introduced to Parliament in 2022. Phase 2 will continue the Government’s focus on cutting red tape and making the planning system easier to navigate.

To view the potential reforms and have your say, visit the Department’s website.

Environmental protection

Commonwealth: EPBC Act "water trigger" scope clarified

On 25 May 2021, the Federal Court of Australia handed down its decision that the water-harvesting North Galilee Water Scheme Project (NGWS Project), which proposes to take water from Queensland's Suttor River to service the Carmichael Coal Project, required assessment under the water trigger controlling provisions under the Environment Protection and Biodiversity Conservation Act 1990 (Cth) (EPBC Act). The water trigger controlling provisions, contained in sections 24D and 24E of the EPBC Act, prohibit any action involving a "coal seam gas development" or a "large coal mining development" where that development is likely to have a significant impact on a water resource.

The Court found that the Minister’s delegate erred in his construction of sections 24D and 24E of the EPBC Act and their relevant definitions and that an action will fall within the definition of "large coal mining development" "if the action is so closely associated with the mining of coal as to be integral to it". The court indicated that the intention of the phrase "large coal mining development" was to capture a broad range of activities, including "those so closely associated with the mining of coal that mining could not be undertaken without the activity in question" and was not limited to physical extraction. The matter has been remitted back to the Minister for determination.

The decision also discusses "coal seam gas development" which is defined as any activity involving coal seam gas extraction, and confirms that for the purposes of interpreting the water trigger controlling provisions, it is not limited to the physical extraction of coal seam gas, but would also include any activities which are integral to the coal seam gas extraction.

Commonwealth: National ambient air quality standards formally varied

The National Environment Protection (Ambient Air Quality) Measure Variation Instrument 2021 has been registered and has varied the National Environment Protection (Ambient Air Quality) Measure to (amongst other things) impose more onerous standards for ozone (O3), nitrogen dioxide (NO2) and sulfur dioxide (SO2).

The Variation Instrument, is in line with the decision made by the National Environment Protection Council on 15 April 2021, the details of which we discussed in our Environment and Planning 5 Minute Fix 13.

NSW: The case(s) of the duplicitous summons

In a decision in the NSW Land and Environment Court handed down on 23 April 2021, the NSW EPA had their summons rejected on the basis of duplicity. The case involved a summons issued for offences relating to discharges from a sewerage treatment facility located in the Kosciusko National Park that occurred over three months and involved a varying level of pollution each time.

Justice Pepper held that the summons was duplicitous because it alleged a number offences relating to discharges rather than alleging a single offence and that it ought to be stayed until the NSW EPA elected and particularised in relation to the summons the single offence. The Court in this instance refrained from making formal orders with respect to the summons at the request of the NSW EPA.

The NSW EPA consequently requested that the Court make final orders, which occurred on 21 May 2021 and included that the judgement "is a proper one for determination on appeal given the vexed question of whether or not the summons is duplicitous".

Justice Pepper noted that if the NSW EPA is "not successful on appeal then it will face the spectre of either laying an additional 77 separate charges or electing to proceed with just a single charge on a single day irrespective of the period of the offending".

The outcome of any appeal will provide clarify on a regulators ability to prosecute multiple and discrete environmental offences on single summonses.

QLD: Transitional period for key Great Barrier Reef protection measures has ended

The deferred transitional period for the new Great Barrier Reef protection measures has now expired and:

  • applications for an environmental authority for new, expanded or intensified regulated industrial land use activities within the GBR catchment area that release nutrients and sediment (eg sewage and water treatment plants, land-based aquaculture or mining (point source pollution)) will need to meet new sediment and nutrient emission standards; and
  • ·new or expanded commercial cropping (ie. cultivation of 1 or more crops) and horticulture (including preparatory work) on 5 hectares or more of uncropped land within the GBR catchment area which do not satisfy the "cropping history" test (ie. the land has been used for cropping or horticultural activities in at least three out of the last 10 years) will be an environmentally relevant activity (ERA) requiring an environmental authority before the activity or any work takes place (ERA 13A).

The administering authority must refuse the application where these relevant activities will, or may, have a residual impact and that impact will not be adequately counterbalanced by offset measures having regard to the water quality offset policy.

With respect to the new ERA 13A:

  • If the cultivation of crops or horticulture was carried out on the land at any time between 1 June 2018 and 31 May 2021 (inclusive) the new requirements will not apply until after the expiry of a transitional period ending on 31 May 2026.
  • Where an activity can meet the eligibility criteria and the conditions contained in the ERA standard for Commercial cropping and horticulture in the Great Barrier Reef catchment (prescribed ERA 13A) – Version 1 a standard application can be made, otherwise a variation application or site-specific application will be required.

VIC: Victoria's new environment regulations and reference standards made

As we count down until the commencement of Victoria's new environment protection regime on 1 July 2021, the Victoria Government has now finalised and made the following subordinate material which will underpin the new regime:

Find out more about Victoria's new environment protection regime here.

SA: Inquiry into waste containing PFAS

The South Australian Parliament will be conducting an inquiry into the disposal of waste contaminated by per- and polyfluoroalkyl substances (PFAS). The motion of Environment Minister David Speirs which was carried on 4 May 2021 will require the Environment, Resources and Development Committee (Committee) to investigate and report on the appropriate and safe disposal of PFAS contaminated waste in South Australia, in particular, the:

  • criteria for disposal of PFAS contaminated waste;
  • criteria for site selection (landfill engineering);
  • consequences of not having an appropriate pathway for PFAS contaminated waste disposal, including reference to case studies; and
  • any other related matters.

We will continue to monitor the progress of this inquiry and will provide further details once it has commenced.

Special thanks to Clare Foran in our Brisbane office, Joy Chen and Tahmyna Rad in our Sydney office, Bevan Willoughby in our Melbourne office and Scott Howieson in our Perth 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.