Australia: Planning & Environment Update: Did you know... 15

Services: Property & Projects
Industry Focus: Property

A draft guideline for the new 'chain of responsibility' laws has been released?

The Queensland Government has released a draft statutory guideline for the Environmental Protection (Chain of Responsibility) Amendment Act 2016 for public comment. The guideline is aimed at providing instructions and transparency about the issuing of Environmental Protection Orders (EPOs) under the new 'chain of responsibility' laws which came into effect on 27 April 2016.

In particular, the new laws allow an EPO to be issued to a 'related person' of a company, being a person with a relevant connection to a company and the environmental breaches alleged. This requires the regulatory body to consider corporate structures, individuals within a company and others such as administrators or receivers who exercise control over a company to determine who an EPO should be issued to. The draft guideline provides a framework for that decision making process.

When finalised, the guideline will provide binding instructions for the regulatory body to decide whether to issue an EPO to a 'related person'.

In September, we reported on the Planning & Environment Court's dismissal of a preliminary challenge to the validity of the first EPO issued under the 'chain of responsibility' provisions. Those proceedings are continuing and an application for leave to appeal the decision has been filed in the Court of Appeal. Whilst the release of the guidelines will be too late to guide the decision making for this case, it will be interesting to see whether the Court's determination of whether the applicant is a 'related person' (if or when the substantive issues are heard) is consistent with the guideline.

A tyre recycling company has been fined for breaching its Environmental Authority?

A $63,000 fine was issued to a tyre recycling company this week in relation to charges of wilfully contravening a condition of its Environmental Authority and failing to provide prescribed information about waste transport under the Environmental Protection Act 1994 (EP Act).

The conduct in question involved unloading and stockpiling approximately 40,000 tyres at a Wacol facility without obtaining required approvals.

The company was also ordered to pay approximately $2,500 in legal costs. No conviction was recorded.

Tyre stockpiling carries a risk of oil fires, which can be damaging to the environment and human health. Stockpiling has gained significant media attention in recent months with a number of stockpiles identified in areas of South East Queensland.

While tyre recycling is still regulated, tyre storage is not. It was formerly a class of 'regulated waste storage' under the EP Act, but changes made by the LNP Government specifically excluded tyre storage from regulation. Environment Minister Steven Miles has said the Queensland Government will investigate reintroducing regulation for tyre storage.

Queensland mines have new groundwater licensing requirements?

Resource activities that will impact on groundwater will soon be required to obtain an 'associated water licence' to carry out the activity, after the Environmental Protection (Underground Water Management) and Other Legislation Amendment Bill 2016 was passed by the Queensland Parliament last week.

The legislation seeks to reverse steps taken by the LNP Government to deregulate groundwater rights, in response to concerns regarding impacts on the environment and rural landholdings. It includes a requirement for resource projects to have potential groundwater impacts assessed upfront, and for landholders to be compensated for impacts on their groundwater resources.

In response to concerns raised by the mining sector, last minute amendments to the legislation provide that mining projects that have already undergone scrutiny through the environmental impact statement process or the Land Court will still require a water licence, but are exempt from the public objection process. Coal mines currently operating under a valid mining lease are deemed to already hold a water licence.

The new laws are expected to commence on 6 December 2016.

The Planning and Environment Court returned a 'deemed approval' to the decision making stage?

Beerwah Land Pty Ltd v Sunshine Coast Regional Council; Woodlands Enterprise Pty Ltd v Beerwah Land Pty Ltd & Another and; Sunshine Coast Regional Council v Beerwah Land Pty Ltd [2016] QPEC 55 – in three proceedings regarding the 'deemed approval' of a development application for a residential subdivision, the Planning and Environment Court made orders which returned the application to the decision making stage.

A deemed approval arose as the development application was subject to code assessment and the Council failed to decide the application within the decision making period. The Court accepted that the Council intended to extend this period but failed to do so due to an "honest error of calculation of the last day of the decision making period".

A key issue related to the proximity of the proposed development to a poultry farm, and the potential reverse amenity impact if a proper planning assessment was not carried out, or if appropriate conditions were not imposed.

The Court determined that the Council's failure to decide the application within the decision making period involved a non-compliance under the Sustainable Planning Act 2009, enlivening the Court's jurisdiction to return the application to the decision making stage. The Court observed that whilst it was not possible or appropriate for the Court to reach a concluded view about the acceptability of the proposal, it was "very much in the interests of proper planning and in the public/community interest" for the Council to properly assess and decide the development application.

This article is intended to provide commentary and general information. It 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 article. Authors listed may not be admitted in all states and territories

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