Australia: Greentape Reduction Bill: Will it strip local governments' power to regulate environmental impacts?

Queensland's Environmental Protection (Greentape Reduction) and Other Legislation Bill 2012 may make it more difficult for local governments to regulate environmental impacts.

The Greentape Reduction Bill was re-introduced into Parliament on 29 May 2012, after it lapsed prior to the recent State election.

The Bill has received plenty of support from industry groups and regulators alike. Its proponents claim that administrative paperwork associated with obtaining approvals will be slashed by as much as 20% if the Bill is passed.

However, we predict the interplay between the state's Sustainable Planning Act 2009 (SPA) concurrence conditions and conditions attached to environmental authorities under the proposed regime may make it more difficult for local governments to regulate environmental impacts arising from land uses they approve.

Among other things, the Greentape Reduction Bill proposes to remove environmentally relevant activities (ERA) from the SPA and licence them under the Environmental Protection Act 1994 (Qld) by an environmental authority.

The Department of Environment and Heritage Protection has indicated that the division of responsibilities between land use approvals by local government and ERA approvals by the DEHP under the proposed regime will be as follows:

Land use approvals granted by local governments under the SPA will regulate the:

  • nature of the activity;
  • scale of the activity;
  • site requirements; and
  • critical design characteristics for construction (this essentially means anything that is built or would be difficult to change, for example, pollution stacks)

Environmental authorities granted by the DEHP under the EPA will regulate:

  • environmental standards;
  • management systems or plans; and
  • monitoring and reporting.

At first glance, this division of responsibilities seems entirely logical and reasonable. However, the issues regulated by local governments under the proposed regime will be informed by things considered under an environmental authority, such as emissions, which fall within the ambit of the issues regulated by the DEHP. For example, the nature and amount of emissions permitted under an environmental authority will directly impact a local government's consideration of the dimensions of pollution stacks.

A further example is where the environmental authority for a service station based on particular vapour recovery technology will directly impact a local government's approval of buffer zones. More particularly, different vapour recovery technology may require a local government to condition smaller or larger buffer zones.

How then will local governments continue to encourage industry to continually improve environmental performance without tangible powers to regulate environmental impacts?

Local governments may take an "out of the box" approach to conditioning development approvals. Having regard to the nature of the proposed development and the relevant stakeholders, a combination of performance and prescriptive based conditions may be appropriate. For example, smaller operators may prefer prescriptive based conditions which provide certainty about achieving compliance without excessive cost. On the other hand, larger operators carrying out more environmentally sophisticated uses may prefer performance based conditions which encourage innovation and improved environmental results.

In any event, the following are types of conditions that may be considered by local government:

  • provision of contact details for higher management who can make decisions quickly in the event of an incident;
  • the owner and occupier indemnifies the local government for any reasonable costs incurred by Council for cleaning-up or reducing the risk of environmental harm at the premises or adjacent to the premises.
  • limiting how long a lawful use may continue or works remain.
  • requiring chemicals to be stored at higher ground and in waterproof containers.
  • compliance: requiring the operator to take date-stamped photographs when certain milestones are met and to be produced upon request.

If local governments propose to limit the time in which a use may exist or works remain via a condition, consideration may be given to amending the relevant planning scheme to give support for such condition. Such consideration may include whether:

  • the use involves a new, untested technology which warrants a trial period;
  • there have been recent technological advances with an expectation for more to follow; and
  • infrastructure used in the type of use has a limited life expectancy, for example, underground pipes.

Technological advances also influence public amenity concepts. For example, it may be reasonable for residents living close to industry to anticipate the continued upgrade of equipment and technology (where reasonably practicable and not cost-prohibitive) because of the nature of the environmental impacts.

Perhaps the answer lies with providing incentives – but how will this be implemented, enforced and by whom? We await with interest.

For further information contact Luke McDonald and Henry Prokuda

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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