image of Claire SmithClaire Smith

Clayton Utz Partner , Sydney T +61 2 9353 4713 https://www.claytonutz.com

Claire Smith is a specialist in environment, planning and climate change law with a diverse skill set (having also worked as a barrister), a global environment counsel for a major energy and resources company and an environmental consultant.

She advises energy and resources clients on their planning and environmental approvals and renewable energy diversification projects as well as Commonwealth, State Government and developer clients on urban renewal projects, precinct developments and greenfield projects. She also specialises in the planning and environment aspects of complex M&A transactions and regularly undertakes litigation and dispute resolution on behalf of her clients. She has particular expertise in ESG, resources law, contaminated land (including PFAS and asbestos), planning, water, affordable housing, build-to-rent, waste and resource recovery projects, biodiversity, climate change, heritage, native title, investigations and crisis management, risk transfer and compliance systems.

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Expertise

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Environment and Planning

Precinct development

Stockland: advising on project development agreement provisions, affordable housing issues and value sharing mechanisms and bushfire protection zones and asbestos contamination in respect of various projects for Stockland's residential property team in NSW and ACT.

City of Parramatta Council: advised on planning aspects of the $2 billion mixed-use Parramatta Square development, which includes significant Public Domain space for community use. This included advising on a Planning Proposal pathway, planning uplift issues and issues associated with a developer failing to properly tank a car park basement and obtain development approval for the basement.

Infrastructure NSW (formerly Barangaroo Delivery Authority): advised the Authority on various state significant planning approvals associated with the redevelopment of the Barangaroo Precinct including regulatory compliance issues and various contractor disputes.

Infrastructure NSW (formerly UrbanGrowth): advised on its Environment Protection & Biodiversity Conservation Act approval for the Macarthur Park Project and as well as planning advice for the Parramatta North Urban Transformation Project and heritage covenants in connection with the Australian Technology Park disposal and bespoke contamination clauses for project delivery agreements.

Walker Corporation: advised on legal aspects of development applications for a major greenfield residential development in a Sydney growth area including two merits appeals and advice on adequate arrangements, koala fencing and water recycling.

Daibiru Corporation: providing planning and environment advice on Daibiru's first commercial development in Australia. Work included advice on heritage floor space, green buildings certification, planning approval advice and assistance in drafting the project delivery agreement in respect of the works to be carried out on site.

Han Group: provided planning advice on a major mixed use development for residential, commercial and retail in CBD.


Waste

SSROC: We have been assisting  Southern Sydney Regional Organisation of Councils (SSROC) with an extensive legislative and policy review of waste and resource recovery law in NSW (prompted by the recent COAG export waste bans affecting paper, plastic and glass) for the purpose of shifting to circular economy in NSW and rapid expansion of waste recovery and recycling facilities.  Our analysis included a critical review of relevant laws, policies and governance structures in other Australian and international jurisdictions to identify legal and policy features that could be adopted and improved upon. In this ground-breaking project, we have identified barriers and constraints currently inhibiting resource recovery and recycling of council-managed waste streams in NSW, discussed opportunities to encourage waste avoidance, minimisation and re-use and made recommendations for legislative and policy reforms. 

Enviro Recycling: advising in relation to the suspension of the operation of the waste recycling and resource recovery business and compliance with a number of prevention notices issued under the Protection of the Environment Operations Act (POEO Act).

Waste Asset Management Corporation (formerly WSN): advising in relation to various contractual and contamination disputes in respect of the lidcombe liquid waste treatment facility. Claire was seconded to WSN and advised on all planning and environment matters. Her work included:

  • various permitting, planning and compliance issues associated with WSN's Materials Recycling Facility at Jacks Gully and proposals for other MRFs;
  • regulatory compliance and approval requirements for Lucas Heights and Eastern Creek facilities; and
  • advice on electronic waste take back schemes and the national waste policy

Kimbriki Environmental Enterprises (KEE): Key adviser to KEE (a council owned corporation) on regulatory compliance with the waste regulatory framework within NSW (including the recent waste reforms), advising on the proposed PPP for construction and operation of an alternate waste treatment facility and composting facilities, and advising on historical contaminated land liability risk transfer.

Infrastructure NSW: advising in relation to waste levy requirements and waste contractor management issue.


Water

Boggabri Coal: advising on various aspects of the Water Management Act and associated regulations including in relation to water access licences, water supply works approvals, appeal and objection rights, exemptions and water harvesting.  

Tea Garden: advised in relation to potential enforcement action from NRAR in respect of a water dam and amendment of court orders in respect of unlawful tracks and roads causing sediment erosion and stock and domestic rights under the Water Management Act.

Various: negotiating contracts involving the sale of water access licence entitlements and registration of transfers.


Advisory

Department of Finance: advised the Commonwealth in relation to a confidential strategic contaminated land project.

Department of Defence: advised the Commonwealth on a range of matters, including:

  • a contamination liability dispute in relation to the Moorebank Intermodal;
  • various planning, heritage and contamination issues relating to the disposal of the Ingleburn Military Barracks and negotiating the sale of property contract;
  • advising in relation to remediation contractor issues;
  • advising in relation to Defence's heritage management plan process and compliance with the Environment Protection and Biodiversity Conservation Act;
  • providing Defence with strategic advice on its environmental compliance framework across its portfolio of sites;
  • advising on environmental and contract issues in respect of unexploded ordnance disposal at Marrangaroo; drafting and negotiating a deed in respect of the transfer of contaminated property at HMAS Platypus to the Sydney Harbour Foreshore Trust.

City West Housing: advising on the implications of the new build to rent provisions, a contaminated land development matter in Bourke Street and on an affordable housing development project.

NBN Co: advises NBN Co on a range of planning and environmental matters and disputes associated with the roll-out of the Broadband Network in NSW.

Property NSW: provided complex compulsory acquisition advice on powers of various Government entities to acquire land, drafting land access agreements and advising on native title issues including the ILUA process.

Western Sydney University: providing planning advice regarding permissible uses as part of a precinct redevelopment strategy for part of its Westmead campus in partnership with a third party developer.

Charter Hall: provided strategic legal advice in respect of risks associated with removal versus on-site containment of asbestos contamination as part of the development of a new warehouse and distribution facility in NSW.

Patrick: advised Patrick in respect of various environmental, planning and contamination matters arising from the redevelopment of its container terminal at Port Botany and renegotiating a new long-term lease agreement with the port operator.

Cement Australia: provided advice on a range of environment, mining, water and planning issues associated with the Kandos site.

Orica: provided legal risk, permitting and compliance advice in relation to Orica's chemical facility at Botany Industrial Park including Orica's groundwater treatment and water recycling system.

Origin Energy: advised in relation to a contaminated land dispute involving a former gasworks.

Colas Australia: advised Colas subsidiary SAMI bitumen on environmental compliance, planning approval and pollution reporting issues in respect of its bitumen facility in Camellia, NSW as well as the acquisition of that land from Exxon Mobil.

Tasmanian Ports Corporation: advised in relation to approval requirements for a dredging project in Tasmania.


Corporate / M&A

Graymont: Graymont and Grupo Calidra (joint venture partner) entered into an agreement to purchase the global lime and limestone business of the Belgium-based Sibelco group. Claire advised Graymont on the environment and planning due diligence in respect of the purchase of the Sibelco Group's limestone assets which was a key transactional risk given the potential liability arising from historical rehabilitation obligations, future development approval requirements, security over the land and tenements and various environmental compliance issues.

Blackstone Real Estate Asia: advised on planning and environment due diligence associated with an acquisition of a significant portion of the Goodman industrial/ commercial property portfolio over two transactions and also the $3.8 billion divestment of the Milestone logistics and industrial property business to ESR.

Chevron: advised on the acquisition of Puma Energy's Terminals, depots and retail fuel business in Australia

CIC International Co. Ltd: advised on all planning and environmental aspects of its A$1.4+ billion acquisition of the Investa Property Trust.

Woolworths: advised on the environment risk issues associated with the divestment of Woolworths 536 site fuel retail business initially to BP and subsequently to EG and most recently on the proposed majority interest acquisition of PDF Foods.

Mitsubishi Real Estate: advised on the planning risk aspects of its acquisition of 30% in the Mastery development and its 20% interest in the development of Circular Quay Tower.

Morgan Stanley Real Estate: providing planning and environment advice on the A$525 million acquisition of 1 Shelley Street, Sydney in 50:50 JV with Charter Hall.

See Environment and Planning

Energy and Resources

Chevron: advised on the acquisition of Puma Energy's Terminals, depots and retail fuel business in Australia together with compliance and other on-boarding requirements.

Idemitsu: advising Idemitsu in relation to the Renewable Energy Technology Precinct at Muswellbrook including pumped hydro and large scale solar and its mining projects in NSW, specifically on planning and environmental approval requirements for its Boggabri Coal Mine, closure and rehab requirements Muswellbrook Coal Mine, biodiversity matters, EPBC Act approval requirements and compliance matters. 

Origin Energy: advised in relation to planning approval requirements for the ash dam expansion, mining approval issues, fly ash recycling approvals and a contaminated land dispute involving a former gasworks.

APLNG Project: advised on the EIS assessment for APLNG on its Queensland CSG to LNG project which involves gas field development, construction of a pipeline (in excess of 500km) from the gas fields to Curtis Island and construction of a LNG plant on Curtis Island and ancillary onshore and marine facilities.

See Energy and Resources

ESG and Climate Change

ESG: advising on ESG matters both in an operational business, compliance and due diligence context. We have developed scenarios based on key environment risk issues emerging in Australia together with advice on Board reporting and governance structures.  We advised on "social licence" and associated legal risk issues for large infrastructure projects, including development of key messaging, social delivery outcomes and development of stakeholder engagement strategies.

Graymont: advising on emerging ESG regulatory risks (though development of scenarios) and providing detailed advice on Board reporting and governance structures for the Australian Group and their relationship with the global group governance structures.

Idemitsu: advised on the implications of Noel Hutley SC's director's duties and climate change opinions, voluntary reporting in accordance with TCFD, continuous corporate disclosure reporting around water security in relation to a competitor, climate change litigation risk, ongoing social licence, stress testing ESG risks and opportunities, carbon offsetting and a multi-faceted renewable energy precinct to achieve net zero commitments.

Department of Industry and the Global Carbon Capture Storage Institute: Claire advised on the development of a nationally consistent measurement, monitoring and technical framework for carbon sequestration in Australia which required an extensive review of legislative requirements in Commonwealth, Victorian and Queensland jurisdictions.

NSW Resources & Energy: advised on a NSW carbon capture storage (CCS) bill which included development of a regulatory framework based on a critical review of other Australian and international CCS laws and preparation of detailed drafting instructions for Parliamentary Counsel's Office. This project had an extremely tight deadline of two months from instruction. Part of our role was to facilitate workshops with key Departmental representatives to "stress test" the proposed regulatory framework and settle policy positions. We adopted a flexible and streamlined approach and ultimately delivered the project on time and on budget.

See Climate Change

Investigations and Crisis Management

Claire has undertaken investigations of environmental incidents, and co-ordinated crisis management. She used that knowledge to help design CU SAFE, our ground-breaking app which helps you respond, quickly and decisively, to a serious safety or environmental incident, support your workers and meet your obligations (including reporting obligations), in all States and Territories

BP plc: advised on and drafted HSE standard operating procedures for BP's operational management system across its global operations in a former role as a Global Environment Counsel for BP as well being the legal counsel on numerous internal audits of its highest risk environment and health and safety operations across multiple jurisdictions over intense 2 or 3 weeks periods culminating in an audit report presented to site. In Australia, this included internal audits of the Bulwer and Kwinana refineries and the Australian terminal operations. In addition, Claire provided advice to BP on some of its most contaminated sites in Australasia and Europe as well as assisting with the development of an incident reporting and management system and working on various initiatives to improve the culture of environmental compliance in different parts of the organisation.

Boggabri Coal Operations Pty Ltd: advised on issues arising out of two blasting incidents which were reported to the regulator which ultimately resulted in the EPA withdrawing two draft penalty infringement notices. Claire has also advised on numerous other compliance issues with State regulators involving air emissions, water emissions an emergency variation to its environment protection licence (EPL).

Stockland: advised in respect of a number of asbestos and contaminated land incidents including engagement with contractors and regulators.

Infrastructure NSW (formerly Barangaroo Delivery): successfully caused the EPA to withdraw its proceedings in the local court seeking to enforce a penalty infringement notice against BDA in relation to a water pollution event which was withdrawn and re-issued to the developer, Lendlease.

Muswellbrook Coal: advising in relation to an illegal asbestos dumping incident and notification requirements to the regulatory.

Graymont: advising in relation to duty to report contamination requirements and PFAS matters.

Chevron: advising in relation to duty to report contamination requirements and PFAS matters.

Woolworths: advised on numerous duty to report issues and engaging with the regulator in relation to Woolworth's former petrol service station business comprising over 500 sites across multiple jurisdictions.

See Investigations and Crisis Management

Litigation and Dispute Resolution

Infrastructure NSW (formerly Barangaroo Delivery Authority):

  • successfully settled judicial review proceedings in respect of a management order under the Contaminated Land Management Act in respect of gasworks contamination remediation at Barangaroo.
  • successfully settled a class 4 and a class 1 merits proceeding in respect of development consents. By taking a strategic approach to negotiating with the objector, we were able to reduce the scope of the appeals before they progressed. On the remaining issues, we collaborated with developer appointed by BDA, found and assessed expert witnesses, prepared a significant amount of detailed evidence and ultimately, persuaded the objector to withdraw the proceedings.
  • advised on evidentiary requirements for establishing that Jemena (formerly Alinta and AGL) was responsible for gasworks contamination at Barangaroo including engaging industrial archaeologist and specialist contamination consultants, two mediations involving over 20 expert evidence reports and advising in respect of management order proceedings commenced by Jemena (which were ultimately withdrawn) including legal advice on various matters raised by Jemena alleging that the management order was invalid.

Walker Corporation: advised on two merit appeals in respect of a major greenfield residential development in a Sydney growth area covering issues such as koala management plans and adequate arrangements for water and sewerage.

Sydney Water: Claire acted for Sydney Water Corporation in a complex and significant land contamination matter involving common law nuisance proceedings , statutory enforcement proceeding under the Protection of the Environment Operations Act 1997 and Class 1 (merit review) proceedings under the Contaminated Land Management Act 1997. Sydney Water was joined to the proceedings as an affected party and took the lead role for the respondents. This was the first case of its kind which proceeded to trial.

Boggabri Coal: acted for Boggabri Coal on the prosecution by Department of Planning & Environment regarding the breach of the project approval relating to placement of a stockpile outside the project boundary.

Waste Asset Management Corporation (formerly WSN): advised on a significant pollution prosecution arising from the discharge of significant amounts of leachate into a creek by WSN's contractor Cleary Bros. We were also involved in assisting the EPA with a separation prosecution arising out of the same incident against Cleary Bros.

See Litigation and Dispute Resolution

Native Title

Idemitsu: provided advice on notifications to native title claimants in respect of prospecting operations and future act matters and advice on a native title claim in respect of an exploration licence and the application for a mining lease in New South Wales and the Indigenous Land Use Agreement (ILUA) process.

Property NSW: providing complex compulsory acquisition advice on powers of various Government entities to acquire land, drafting land access agreements and advising on native title issues including the Indigenous Land Use Agreement (ILUA) process.

Armidale Local Aboriginal Land Council (LALC): providing the LALC with advice on the process for making a non-claimant application to the Federal Court of Australia seeking a determination that native title does not exist in relation to specific land and interpretation of certain provisions of the ALR Act.

UrbanGrowth NSW: advised UrbanGrowth NSW on compulsory acquisition advice for the Parramatta North Urban Transformation Project and associated native title claim matters.  

See Native Title

Knowledge

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