Australia: The 2016-17 year ahead in environment and planning

Environment & Planning National Review 2016
Last Updated: 5 September 2016
Article by Karen Trainor

COMMONWEALTH

With the calling of the Federal Election and the lapsing of Federal Bills, the year ahead at a Federal level will depend on who forms the next Government.

The Department of the Environment completed a number of consultations in the past 12 months, which we expect to see finalised over the next year. Those consultations include:

  • the Independent Review of the Water Trigger Legislation;
  • the Draft Policy Statement For Advanced Environmental Offsets Under The EPBC Act;
  • the Draft Outcomes-Based Conditions Policy And Guidance; and
  • the Assessment Bilateral Agreement Draft Conditions Policy.

The Department of the Environment and the Queensland Government will also continue with the implementation of the Reef 2050 Plan. The Department of the Environment released the Reef 2050 Policy Guideline for Decision Makers for public consultation, which ended on 26 February 2016.

Renewable energy is likely to be a hot topic at the Federal level for the 2016/2017 financial year, including the administration of policy and planning to encourage the development of the renewables sector.

AUSTRALIAN CAPITAL TERRITORY

Upon commencement of the Renewable Energy Legislation Amendment Act 2016, on 24 February 2016, FiT entitlements can now be granted to large renewable energy generators at the increase total FiT capacity of 650MW. The ACT Government believes that the 100% renewable energy target will easily be achieved by 2020 (a decade earlier than first set by the Minister) through the large-scale wind and solar projects being funded by contracts with the ACT government.

NEW SOUTH WALES

The Greater Sydney Commission Act commenced on 27 January 2016. This established the 2014 NSW Government document "A Plan for Governing Sydney" as the first regional plan for the Greater Sydney region and the six districts identified in that plan have been adopted. In the coming months, stakeholders should look out for:

  • the appointment of District Commissioners to the Commission;
  • the public exhibition of draft district plans for Greater Sydney – these will shape Sydney's LEPs going forward;
  • the establishment of the Sydney planning panel, to replace one or more Sydney joint regional planning panels;
  • some realignment of Greater Sydney districts to reflect potential local government amalgamations;
  • more strategic, integrated planning for Sydney;
  • the declaration of other regions in NSW.

The commencement of this legislation will have a significant impact on potential development in the Greater Sydney Area and the public should ensure that it avails of the opportunity to provide comments on the draft plans as the consultation provisions after the strategic phase will be more limited.

The Exposure Draft of a Bill for the proposed reform of biodiversity legislation and policy is open for consultation. This Exposure Draft takes an outcomes-focused, integrated and risk-based approach to biodiversity conservation and simplifies the current legislative framework.

Public consultation on the NSW Government's proposed coastal management reform package which will result in the repeal of the Coastal Protection Act 1979 and Coastal Protection Regulation 2011 as well as the replacement of three state environment planning policies that deal with coastal wetlands, littoral rainforests and coastal protection closed on 29 February 2016 and the Coastal Management Bill was introduced to the Lower House on 3 May 2016. This Bill will progress through the Lower and Upper houses over the coming months. Also, a draft Coastal Management state environmental planning policy and corresponding maps of the coastal management areas will also be released separately for public comment in the coming months.

Another suite of Integrated Mining Policy documents are being revised following public consultation, including the Planning Agreement Guidelines and the Swamp Offsets Policy and will likely be introduced in 2016/2017. The new land access agreement, compensation and arbitration processes in the Petroleum (Onshore) Act 1991 (NSW) the Mining Act 1992 (NSW) are also set to commence in 2016.

NORTHERN TERRITORY

The Territory Government will continue with its public consultation on the proposed reforms to the environmental assessment and approvals processes until September 2016, with the implementation of reforms to occur by 1 January 2017. It has also set the wheels in motion for reforming the development of the oil and gas industry and will look to:

  • release its Oil and Gas Industry Development Strategy in final, the draft of which concluded its public consultation process on 31 December 2015; and
  • finalise the draft Petroleum (Environment) Regulations, which upon commencement will impose a mandatory requirement for an interest holder, who proposes to carry out a regulated activity, to prepare, and have approved, an EMP before the activity can commence. It is understood that with the passage of Petroleum Amendment Bill 2016, it now means that the proposed draft Regulations can be made by the Administrator in June 2016.

Consultation and the finalisation of a number of area plans to amend the NT Planning Scheme will continue as part of the Government's planning for future infrastructure and a growing population.

QUEENSLAND

It is expected that the Queensland Government's Planning Reform agenda will be implemented in the next financial year. The project has been ongoing for a number of years, and was adjusted following the change in Government in 2015. Now that the Planning Bills have been passed, they are expected to commence in 2017. In the interim, the Department of Infrastructure, Local Government and Planning will be releasing a suite of material to explain how the new planning system will work.

On the planning theme, we also expect to see the review of the South East Queensland Regional Plan, with the draft expected to be released for public consultation in October 2016, and the draft climate change adaption strategy.

We predict the themes for regulatory reform to watch for the 2016/2017 financial year will be vegetation management, environmental offsets, water resource management and the management of the Great Barrier Reef Marine Park.

Environmental litigation continues in Queensland, with a number of significant resources projects being challenged in both the Federal Court and the State Courts.

Compliance with environmental laws is also increasingly the focus of attention, with the regulators increasingly focused on compliance activities and associated regulatory tools. Operators will need to be vigilant in implementing risk management and reporting systems, and demonstrating due diligence in activities with the potential to impact on the environment.

SOUTH AUSTRALIA

The Planning, Development and Infrastructure Act 2016 will be brought into operation over the coming financial year and over the next three to five years. The Act proposes to revamp the existing planning and development system. The proposed system will create a tiered assessment process for proposed developments aimed at streamlining the planning approval process. The South Australian Parliament are developing a subsequent bill which will deal with the implementation measures under the Act

The Environment Protection Authority is expected to publish the following guidelines in the coming financial year:

  • guideline on assessment and remediation of site contamination; and
  • guideline on preparation and implementation of closure and post-closure plans.

Pollution has become a focus this financial year and will continue in the coming financial year with harsher penalties imposed for breaches of the Environment Protection Act 1993 (SA) under the Policy for calculation of civil penalties and increased penalties for littering under the Local Nuisance and Litter Control Act 2016 (SA). These harsher penalties complement the targets in the new Waste Strategy for 2015-2020 which was released in November 2015.

Following the United Nations Framework Convention on Climate Change, the coming financial year will continue to focus on climate change initiatives. The State Government low carbon investment plan (released on 2 December 2015) indicates the government's strategies to achieve its target of zero net emissions by 2050.

TASMANIA

Review of natural resource management regime

The Tasmanian Government has reviewed Tasmania's two principal instruments for natural resource management: the Tasmanian Natural Resource Management Framework 2002 and the Natural Resource Management Act 2002. The Framework and the Act are directed at delivering effective management of natural resources in Tasmania.

The Tasmanian Government released a Discussion Paper reviewing the framework in July 2015. Following a period of public submissions, the Discussion Paper was reviewed and a final report provided to the Minister in November 2015 for consideration of possible policy or legislative reform.

Single State-wide planning scheme

Once the SPPs have been made by the Minister, local planning authorities will then be required to develop the draft Local Provisions Schedules (LPSs) for their respective municipal areas for submission to the Commission. It is anticipated that submission of the first draft LPSs will occur in late 2016. The draft LPSs will then be released for public consultation. The Tasmanian Planning Scheme will then come into effect in each municipal area once the relevant LPS for that area is in place.

The Government is aiming to implement the Tasmanian Planning Scheme by the end of 2017, until which time the current interim planning schemes in each council (apart from Flinders Council, which has not yet provided an interim planning scheme) will continue to apply.

VICTORIA

Independent Inquiry into EPA

On 16 May 2016 the Environment Minister released the Ministerial Advisory Committee Report into the EPA following the public inquiry which commenced on 1 June 2015.

The Committee made 48 recommendations for Government to consider, including:

  • the adoption of new legislation focussed on improved coordination and collaboration across government on environment protection and including a new general duty to minimise harm from pollution and waste;
  • the establishment of a new state wide network of local government environment protection officers to address localised pollution and waste complaints;
  • the confirmation of the EPA's role as a technical advisor in emergency management; and
  • the adoption of a tougher approach to enforcement.

The Government is now considering its formal response to the Report, which will be released later in 2016.

Scheduled Premises Regulations review

The Department of Environment, Land, Water and Planning and the EPA are currently reviewing the Environment Protection (Scheduled Premises and Exemptions) Regulations 2007 (Vic), which are due to lapse in mid-2017. The Regulations specify the types of premises for which works approvals, licences and financial assurance are required. The Department and the EPA published a discussion paper about their review on 6 November 2015 and the period for public feedback on the discussion paper closed on 14 December 2015. Both agencies expect to release draft regulations and a draft regulatory impact statement later this year and will provide opportunities for the public to provide feedback on those drafts.

New Smart Planning System

The Minister for Planning has announced that the Victorian Budget 2016/17 will invest $25.5 million to give Victorians a quicker and simpler way to navigate the State's planning process. The changes are aimed at creating a less complicated approach to accessing planning applications and decisions, with online planning applications and a reduction in the number of smaller projects requiring permits. It is anticipated that the changes will result in savings for property owners, investors and the state amounting to millions of dollars a year and make it easier to buy and build in Victoria. The changes will also capture regional councils, with an additional $2.1 million allocated for strategic planning.

Key changes include:

  • the creation of an online portal for applications to be used by homeowners and the property industry alike;
  • improved zone controls to reduce duplication between schemes and maintain consistency;
  • improvement to the approvals process for commercial and industrial zones in terms of speed and cost;
  • provision of accessible online tools for homeowners to encourage participation in the planning process; and
  • easy to access assessments for decisions relating to windfarms, development in the CBD, Environmental Effects Statements and heritage applications.

It is anticipated that the Smart Planning System will improve efficiency and transparency and encourage national and international investment.

New regime for infrastructure contributions

The Government introduced a new Planning and Environment Amendment (Infrastructure Contributions) Bill 2015 into Parliament on 10 June 2015. The Bill was passed with amendments on 20 August 2015 and received assent on 1 September 2015.

The Act, which is expected to commence in early 2016, inserts a new Part 3AB into the Planning and Environment Act. Part 3AB establishes a new system for levying and collecting contributions towards the provision of infrastructure in relation to the development of land by introducing infrastructure contributions plans (ICPs). The amendments will operate separately and independently to the current regime of existing development contributions that are part of planning schemes.

ICPs will only be utilised in relation to new "priority growth areas": Greenfield Growth Areas and Strategic Development Areas. In these two areas, ICPs will operate to the exclusion of the current regime and will be incorporated in planning schemes. ICPs will impose a predetermined (and indexed) Standard Levy which will fund infrastructure items predetermined as "Allowable Items". The Standard Levy may be complemented by a Supplementary Levy, which is intended to be used where the Standard Levy is insufficient to cover the required or additional infrastructure, or where the Growth Areas Infrastructure Contributions Scheme does not apply.

Review of Heritage Act 1995

On 20 June 2015, the Planning Minister launched a discussion paper for the review of the 20-year-old Heritage Act 1995. The discussion paper canvasses ways to improve heritage registration processes, simplify heritage permit and consent processes, and strengthen compliance and enforcement measures.

Significantly, the discussion paper proposes a single heritage registration process to replace the four separate processes under the Heritage Act and a reformed nomination process; an increased role of local government and a one-stop shop for subdivision applications; and consolidated offence provisions and an increase in maximum penalties for unauthorised works and infringement notices.

The Government conducted public consultation between July and August 2015 and is currently assessing the submissions reviewed.

Review of Victoria's State Environment Protection Policies (SEPPs) for Noise

A public consultation report was released by the Department of Environment, Land, Water and Planning and the EPA in September 2015 as part of the review into the two State Environment Protection Policies for noise (SEPP-N1 and SEPP-N2). The report followed a process of public consultation, public submissions and web-based surveying.

The process of stakeholder engagement addressed a variety of different noise issues, with 48% of responses concerning amplified music noise, and 19% of responses identifying concerns with industrial noise.

An additional provision that was considered was an "agent of change" principle, whereby developers must bear the cost of soundproofing their developments where the new use results in existing industrial or commercial uses becoming non-compliant. This change was broadly supported, with the following recommendations made:

  • principles must apply to all agents of change (ie. also to new industrial uses) rather than just residential premises;
  • noise levels must not be allowed to increase over time without the industrial agent paying for additional residential soundproofing; and
  • developers must bear the cost of subsequent noise mitigation where impact of noise only becomes apparent after their property is sold.

The report also identified the need to adopt a clearer, more effective and transparent system of compliance and enforcement framework which clarifies the regulatory roles of the EPA, local councils and the police. While many respondents expressed concern about the complexity of the noise SEPPs, the report confirmed that the "level of complexity is necessary to ensure that robust decisions are made".

The EPA and DELWP have now commenced the process of developing options for new noise policy and options to be presented to stakeholders in a broader consultation process in late 2016.

Infrastructure Victoria

The Infrastructure Victoria Act 2015 (Vic) commenced on 1 October 2015, establishing an independent statutory body charged with preparing and publishing a 30-year infrastructure strategy that assesses the current state of infrastructure in Victoria and identifies Victoria's infrastructure needs and priorities for the next 30 years.

Infrastructure Victoria has been undertaking stakeholder and public consultation for the purpose of developing the infrastructure strategy in 2016; it published a consultation report on 21 April 2016 and plans to release a discussion paper in May and conduct citizen juries for the next phase of the consultation process. The infrastructure strategy will cover nine key sectors:

  • energy;
  • water and waste;
  • transport;
  • education and training;
  • health and human services;
  • justice;
  • culture, civic, sport, recreation and tourism;
  • science, agriculture and environment; and
  • information and communications technology.

Infrastructure Victoria will be responsible for giving infrastructure advice to the Victorian Government and researching and publishing on various infrastructure matters.

Plan Melbourne Refresh

The Victorian Government launched a discussion paper for the Plan Melbourne refresh in October 2015 and community comments and submissions on the discussion paper closed in December 2015.

The discussion paper notes that much of Plan Melbourne 2014 continues to enjoy bipartisan support and highlights that the scope of current discussion centres on the key issues of housing supply, diversity and affordability, current transport network priorities and climate change. Key initiatives of Plan Melbourne 2014, such as supporting increased development in strategic locations and maintaining a fixed urban growth boundary, will remain.

The refresh aims to focus on long-term actions and implementation measures. The refresh will also allow for current transport commitments to be incorporated.

WESTERN AUSTRALIA

This financial year, the Department of Environment Regulation will begin applying the new approval process under Part V of the Environmental Protection Act 1986 (WA) supported by guidance statements released in 2015. This includes granting licences for new prescribed premises for a duration of 20 years, rather than five years, after taking into account matters such as the risk of harm to public health or the environment.

On 17 December 2015, the Department of Planning released the draft Perth and Peel Green Growth Plan for 3.5 million for public comment. The public consultation period closed on Friday 13 May 2016.

The following bills were introduced in 2015 but have not yet passed:

  • Mining Legislation Amendment Bill 2015 (WA);
  • Biodiversity Conservation Bill 2015 (WA); and
  • Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015 (WA).

The Department of State Development and Planning proposes to introduce to Parliament the Planning and Development Legislation Amendment (Western Trade Coast Protection Area) Bill 2015 (WA). The draft Bill was referred to the Environmental Protection Authority for consideration in June.

On 19 October 2015 the Conservation and Land Management Bill 2015 received assent. The Bill will amend the Conservation and Land Management Act 1984 by:

  • combining the Conservation Commission with the Marine Parks and Reserves Authority into a single Conservation and Parks Commission;
  • enabling joint vesting of national parks, nature reserves and conservation parks between the Commission and native title parties;
  • introducing zoning schemes in marine parks;
  • recognising fire management (including planned burning) as part of the land management functions of the CALM Act CEO; and
  • extending the maximum term of CALM Act leases for recreation, tourism and other purposes from 21 years to 99 years.

Several of these amendments came into effect on 12 December 2015, other amendments are yet to be proclaimed.

"THERE ARE FIVE KEY CHANGES TO WA'S CONSERVATION AND LAND MANAGEMENT ACT."

On 10 March 2016, as part of the Western Australian Waste Strategy, the State Government provided up to $10 million in funding for local councils to use recycled construction and demolition waste in civil engineering projects.

This funding is available through two streams. The first $8 million stream provides a pre-allocated, noncompetitive financial incentive payment for councils that use recycled construction and demolition waste. The second $2 million stream is for open, competitive funding to purchase and use recycled construction and demolition products.

Projects in the first stream must be completed before 30 June 2017; applications for first stream funding close on 28 July 2017. For projects in the second stream, applications closed on 30 June 2016.

The Department of Environment Regulation will release the following draft guidelines and standards for public consultation in the coming financial year:

  • Environmental Standard: Rural landfills;
  • Guideline: Emissions to air;
  • Guideline: Odour;
  • Guideline: Emissions to land;
  • Guideline: Emissions to water;
  • Environmental Standard: Metropolitan landfills;
  • Environmental Standard: Waste water treatment plants; and
  • Environmental Standard: Tailings Storage Facilities.

Following the Save Beeliar Wetlands v Jacob [2015] WASC 482 decision

On 17 December 2015, the Minister for Environment announced that independent legal and governance auditors would conduct an assessment of the Environmental Protection Authority legislation and policy following the Supreme Court decision in Save Beeliar Wetlands v Jacob [2015] WASC 482. In that decision, the Supreme Court held that the Environmental Protection Authority was legally obliged to take account of certain policies which it had developed in relation to environmental impact assessments and had not done so (see the Compliance, enforcement and prosecutions chapter for more information).

The Legal and Governance Review into Policies and Guidelines for Environmental Impact Assessments report was released on 17 May 2016. The report recommended the adoption of a new, hierarchical policy framework that reflects the objectives and principles of the EP Act. The EPA has announced it will revise its procedures and policies before the end of the year in order to satisfy the recommendations of the review.

Following the decision, on 30 March 2016, Ms Corina Abraham commenced proceedings against WA Aboriginal Affairs minister, Peter Collier and members of the Department of Aboriginal Affairs' cultural materials committee. Ms Abraham alleges the committee denied her procedural fairness by failing to re-consult with her before overturning its previous recommendation to oppose the Roe 8 highway.

The State Government has appealed the decision to the Court of Appeal. The Court of Appeal handed down its decision on 15 July 2016, upholding the appeal on the basis that the policies were not relevant mandatory considerations. Save Beeliar Wetlands has foreshadowed a possible High Court challenge.

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 bulletin. Persons listed may not be admitted in all states and territories.

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