Environment and Heritage Legislation Amendment Act (No 1) 2006
The Environment and Heritage Legislation Amendment Act (No 1) 2006 (Amending Act) made a number of amendments to the Environment Protection and Biodiversity Conservation Act 1999 (Act), most of which commenced in stages during January and February. The remaining, relatively minor, amendments will commence on 19 February 2012.
The amendments that have commenced streamline certain approval processes in order to reduce processing time. Amendments to approval processes include:
- protected species permits may be granted without an additional assessment process
- the Minister for Environment and Water Resources is able to make declarations that certain actions or classes of actions do not require the minister’s approval under Part 9 of the Act, and
- conservation agreements can authorise actions or classes of actions which do not require approval under Part 9.
A number of the commenced amendments relate to enforcement and penalties, including:
- a number of offences are now strict liability offences, meaning that the prosecution does not have to show that a person charged with an offence knew or was reckless to a particular fact. This will make it easier to prosecute these offences, and
- a new set of reduced penalties which can be imposed by the minister without the need for prosecution of breaches in court. These are designed to make it easier to punish minor breaches of approval conditions.
In relation court procedures, the commenced amendments:
- abolish section 478 of the Act, which prohibited an applicant seeking an injunction against a development to give an undertaking as to damages. As an undertaking as to damages is typically required in injunction applications, this is likely to act as a disincentive for parties to seek an injunction under the Act, and
- extend the Federal Court’s power to make remediation orders. Under a new Division 14A the Federal Court is able to make a remediation order without the need to grant an injunction.
Trees (Disputes Between Neighbours) Act 2006
The Trees (Disputes Between Neighbours) Act 2006 (Act) came into force on 2 February 2007. The Act empowers the Land and Environment Court (court) to achieve cost effective resolutions to tree disputes between neighbours in urban areas. In particular, the Act enables an owner of land to apply to the court for an order to remedy, restrain or prevent damage to the owner’s property, or to prevent injury, as a consequence of a tree situated on adjoining land. The court can also order compensation for damage already caused by a tree situated on adjoining land.
State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007
On 16 February 2007, the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (SEPP) was gazetted. The SEPP consolidates and updates existing planning provisions related to mining, petroleum production and extractive industries.
The SEPP overrides provisions of Local Environmental Plans (LEPs) that permit mining, petroleum production and extractive industries with development consent subject to other LEP provisions being satisfied and subject to the consent authority being satisfied as to certain matters.
Now, under the SEPP, development for those purposes are permitted with consent without the other LEP provisions having to be satisfied and without the consent authority having to be satisfied as to those specified matters. In determining a development application under the SEPP, the consent authority must consider, among other things:
- the compatibility of the proposal with other land uses in the vicinity
- whether the consent should be issued subject to conditions aimed at ensuring the development is carried out in an environmentally responsible manner
- the efficiency or otherwise of the development in terms of resource recovery, and
- whether to issue the consent subject to conditions relating to transportation of materials and rehabilitation of land.
Nuclear Facilities Prohibition Act 2007
The Nuclear Facilities Prohibition Act 2007 (Act) was passed by the Queensland Parliament on 20 February 2007 and assented to on 28 February 2007.
The Act prohibits the building of nuclear facilities in Queensland, including uranium enrichment plants, nuclear power stations and nuclear waste sites. However, the Act does not propose to ban uranium mining or exploration in Queensland.
The Act’s commencement date has not yet been proclaimed.
Wild Rivers and Other Legislation Amendment Act 2007
The Wild Rivers and Other Legislation Amendment Act 2007 (Amendment Act) commenced on 28 February 2007.
The main effects of the Amendment Act are to:
- allow the creation, amendment and operation of the Wild Rivers Code. The Wild Rivers Code is made by the Minister for Natural Resources and Water, and outlines the wild river requirements that must be met by a proposed development before it can be approved
- allow for the imposition of a development moratorium while amendment of a declaration is being considered
- require that the natural values of a site be included in a wild rivers declaration
- require that details of plant species that have been introduced through agriculture and pose a threat to the relevant natural values of an area are included in a wild rivers declaration proposal, and
- declare six wild river areas (Fraser, Gregory, Hinchinbrook, Morning Inlet, Settlement and Staaten rivers) and validate the existing notices of intent to declare these to be wild river areas.
Voluntary Carbon Credit Trading Bill 2007
The Voluntary Carbon Credit Trading Bill 2007 (Bill) was introduced into parliament on 21 February 2007.
The Bill proposes to establish the Carbon Credit Trading Corporation as a government owned corporation to manage a scheme for marketing carbon credit certificates. The Bill proposes a system to issue carbon credit certificates to accredited businesses that reduce their carbon emissions by means of carbon sequestration, use of alternative energy sources or by using less fossil fuels than is standard for the relevant industry.
Environmental Protection (Clearing of Native Vegetation) Amendment Regulations 2007
The Environmental Protection (Clearing of Native Vegetation) Amendment Regulations 2007 (Clearing Amendment Regulations) commenced on 30 March 2007. The Clearing Amendment Regulations:
- extend the exception to unlawful clearing in Items 24 (Clearing under a Petroleum Act authority) and 25 (Clearing with an authority under the Mining Act 1978) of regulation 5(1) by removing the requirement for the clearing to be done before 8 April 2007, and
- narrow the exception to unlawful clearing in Item 20 of regulation 5(1), regarding low impact mineral and petroleum activities, by deleting the following prescribed low impact activities from Schedule 1:
- Items 2(1)(c) and (d)—regarding certain auger or compressed air drilling
- Item 2(1)(e)—regarding raised-blade clearing for temporary tracks and
- Item 2(1)(h)—regarding excavation for the purposes of exploration sampling.
Conservation and Land Management Amendment Regulations 2007
The Conservation and Land Management Amendment Regulations 2007 (CALM Amendment Regulations) commenced on 27 February 2007. The CALM Amendment Regulations make minor amendments to regulation 12, which prohibits possession of restricted weapons and devices, and Schedule 2, which lists penalty notice offences.
National Environment Protection Council Amendment Bill 2007
The National Environment Protection Council Amendment Bill 2007 (Bill) received its second reading speech in the Legislative Assembly on 28 March 2007. The Bill proposes to implement similar changes to those recently made to the National Environment Protection Council Act 1994 (Cth). If passed, the amendments would authorise the National Environment Protection Council Service Corporation to provide support to the Ministerial Council, revise the variation process for National Environmental Protection Measures, and require the National Environment Protection Council Act 1996 to be reviewed every five years.
Nuclear Facility (Prohibition) Bill 2007
The Nuclear Facility (Prohibition) Bill 2007 (Bill) was introduced to the Legislative Council on 14 March 2007 and received its second reading speech on the same day. If passed, the Bill would repeal and replace the Nuclear Waste Storage Facility Prohibition Act 2000. The Bill proposes to:
- proscribe the construction or operation of a nuclear facility
- prohibit the importation or transportation of nuclear waste for delivery to a nuclear waste storage facility, and
- allow for the removal of a nuclear storage facility and the rehabilitation of affected lands.
The practical effect of the Bill would be to ban nuclear power in South Australia.
Native Vegetation Variation Regulations 2007
The Native Vegetation Variation Regulations 2007 (amending Regulations) commenced on 29 March 2007. The amending Regulations amend the Native Vegetation Regulations 2003. The amending Regulations expand the range of prescribed circumstances under which native vegetation may be cleared to include certain situations where land has been set aside for residential development and the clearance is undertaken according to the council's approval and management plans.
Land (Planning and Environment) Legislation Amendment Act 2007
The Land (Planning and Environment) Legislation Amendment Act 2007 (amending Act) was assented to on 1 March 2007. The Act amends both the Land (Planning and Environment) Act 1991 (Act) and the Land (Planning and Environment) Regulations 1992 (Regulations).
The amending Act is a response to the decision of the ACT Supreme Court in Capital Property Projects (ACT) Pty Ltd v Planning & Land Authority [2006] ACTSC 11 (15 December 2006). In this decision, Justice Gray held that a regulation exempting developments in ‘an industrial area’ from third party appeals was invalid, and cast doubt on other exemptions contained in the Regulations.
The effect of the amending Act is to re-enact and affirm the validity of a number of exemptions to third party appeal, and restore the legal position originally intended and understood before the decision in the Capital Property Projects case.
Electricity (Greenhouse Gas Emissions) Amendment Bill 2007
The principal purpose of the Electricity (Greenhouse Gas Emissions) Amendment Bill 2007 (Bill) is to, in the absence of a National Emissions Trading Scheme, extend the current Greenhouse Gas Abatement Scheme until 2020. The Bill was introduced to the Legislative Assembly on 15 March 2007.
The Greenhouse Gas Abatement Scheme operates in the electricity industry in the ACT. All electricity retailers and any certain other parties are required to meet mandatory benchmark targets of greenhouse gas emissions. The targets are based on the party’s share of the electricity market. If participants fail to reach their benchmarks they are assigned a penalty. The scheme also allows for the trade of ‘abatement certificates’ between participants.
Nuclear Activities (Prohibitions) Amendment (Plebiscite) Bill 2007
The Nuclear Activities (Prohibitions) Amendment (Plebiscite) Bill 2007 (Bill) was introduced into the Legislative Assembly on 27 February 2007 and received its second reading speech on 28 February 2007. If passed, the Bill would insert a new Part III into the Nuclear Activities (Prohibitions) Act 1983. The effect of this new Part would be to require the relevant minister to conduct a plebiscite where the Commonwealth Government has taken, or is likely to take, any step supporting or allowing the construction of a prohibited nuclear facility in Victoria.
Pipelines Regulations 2007
The Pipelines Regulations 2007 (Regulations) commenced on the 1st April 2007. The Regulations, enabled by the Pipelines Act 2005, repeal and replace the Pipeline Regulations 2000. The objectives of the Regulations are:
- to provide for the reporting of safety and environmental incidents in relation to pipeline operations
- to prescribe standards for the construction and operation of pipelines
- to prescribe matters to be contained in Safety Management Plans
- to prescribe matters to be contained in Environment Management Plans, and
- to prescribe various forms, fees and procedures authorised by the Pipelines Act 2005.
Pulp Mill Assessment Bill 2007
The Pulp Mill Assessment Bill 2007 (Bill) was introduced into the Tasmanian Parliament in March. The Bill was drafted following the withdrawal of an application by Gunns Limited (Gunns) to build a $1.5 billion pulp mill due to what Gunns considered to be unacceptable delays in the planning approval process.
The major changes proposed by the Bill include:
- the assessment of the proposed pulp mill by an independent consultant rather than the Resource Planning and Development Commission, and
- the restriction of review of decisions made under the proposed Act to those affected by criminal conduct.
The Tasmanian Cabinet has agreed to legislate for a new assessment and approvals process specifically for the pulp mill proposed by Gunns Limited and it is expected that the amendments will be given final parliamentary consideration by 31 August 2007.
Threatened Species List announced
The Northern Territory Threatened Species List has been updated following a recent review. The updated list is available from the Department of Natural Resources, Environment and the Arts.
More information
For information regarding possible implications for your business, contact a member of the Environment & Planning team.