No developments for this quarter.
More extensive powers to manage contaminated land: Contaminated Land Management Amendment Bill 2008 and Draft Contaminated Land Management Regulation 2008
The Contaminated Land Management Amendment Bill 2008 (CLMA Bill) is currently before the Legislative Assembly. It seeks to strengthen the duty to notify of contamination and provides the Department of Environment and Climate Change (DECC) with new powers to regulate contaminated sites under the Contaminated Land Management Act 1997 (CLM Act). Relevant changes include:
- giving the DECC the power to regulate contaminated land if it considers the contamination significant enough to warrant regulation, thereby removing the current requirement that the contamination present a ‘significant risk of harm’
- allowing the DECC to order a preliminary contaminated site investigation
- removing the ‘no knowledge’ defence currently available under the CLM Act, and
- introducing new offences such as giving false or misleading information in purported compliance with the CLM Act, which would carry a maximum penalty of $137,500 for a company and $66,000 for an individual.
In related news, the Contaminated Land Management Regulation 1998 is due for automatic repeal on 1 September 2008. The government is proposing a new regulation be made under the CLM Act immediately following this repeal. The proposal includes the following changes:
- allowing the DECC to issue penalty infringement notices for minor breaches of the CLM Act
- a notification of contaminated land is no longer required to be in a prescribed form, but can be given in the manner and form approved by the EPA, and
- increasing site auditor accreditation fees.
Comments on the draft regulation and the regulatory impact statement were required for submission by 22 July 2008.
New South Wales Chief Judge allows environmental offsets: Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd [2008] NSWLEC 173
New South Wales Land and Environment Court Chief Judge Brian Preston has accepted a sand mining company’s proposal (with some additional conditions) to offset environmental damage caused to ecological communities by the company’s quarry expansion. Chief Justice Preston rejected Gerroa Environment Protection Society Inc’s (GEPS’s) attempts to prevent the company expanding the quarry.
The Minister for Planning approved the Cleary Bros (Bombo) Pty Ltd (company) proposal to expand the sand quarry. Gerroa Environment Protection Society Inc objected to the company’s application, arguing that extending the quarry would have adverse impacts on endangered ecological communities located on and adjacent to the quarry extension area. The Minister for Planning approved the proposal subject to conditions. GEPS appealed against the minister’s decision.
Chief Justice Preston acknowledged the various direct and indirect effects on the ecological communities that would result from the quarry expansion. The company proposed a ‘package of offset measures’ to combat these effects. The package included setting aside areas of existing native vegetation in perpetuity for conservation purposes through a Voluntary Planning Agreement. Chief Justice Preston noted that the conservation areas would ‘far exceed’ the size of the vegetation that would be removed because of the quarry extension. The company also proposed to plant other areas.
Justice Preston mentioned that ‘… the proposed area of extraction is recognised in Illawarra Region Environmental Plan No1 as a regionally significant extractive resource … A consideration of the value of the resource is consistent with the principles of ecologically sustainable development in that it requires the effective integration of economic, social and environmental considerations in the decision-making process.
‘The conservation of vegetation comprising endangered ecological communities needs to be a fundamental consideration in determining applications for development of land that might remove or modify such vegetation. However, this does not mean that decisions can never be made which would have the effect of removing or modifying vegetation comprising an endangered ecological community,’ Chief Justice Preston said.
He also held that approval should be granted to the company for the proposed sand quarry extension on conditions that he said would go further than those imposed by the Minister for Planning, including additional plantings.
Justice Preston was satisfied that: ‘Although the proposed development results in clearing of areas of vegetation comprising endangered ecological communities, the offset package, comprising greater conservation status and better management of much larger areas of native vegetation … together with the establishment of compensatory habitats … seeks to restore the functions provided by the vegetation to be cleared.’
Court imposes $100,000 fine for acid spill, notwithstanding company’s exemplary environmental record: Environment Protection Authority v Nowra Chemical Manufacturers Pty Ltd [2008] NSWLEC 187
Nowra Chemical Manufacturers Pty Ltd, a New South Wales chemical company, was fined $100,000 after pleading guilty to an offence under the Protection of the Environment Operations Act 1997. The company polluted waters with 1,700 litres of diluted sulphuric acid which caused environmental harm.
In January 2007, after a process failure at a factory, a mixture of sulphuric acid and water was stored in an unbunded and uncommissioned tank fitted with a non-compliant flange. The acid mixture leaked from the tank and flowed into a stormwater drain following ‘well-intentioned’ hosing by employees.
Justice Sheahan accepted that it was ‘not readily obvious’ to staff that the tank could not safely store the chemical. However, the ‘decision, based on storage limitations, to put such a dangerous liquid into an unbunded tank proved highly unsound’ and a close watch should have been maintained on the tank.
Despite the company having an exemplary record and having already paid $64,000 in clean-up and related costs, Justice Sheahan held that the mixture caused ‘quite severe’ harm on common plant species and warranted a ‘substantial penalty’.
Justice Sheahan ordered the defendant to:
- publish advertisements outlining the offence in the local paper and the Sydney Morning Herald
- pay the Southern Rivers Catchment Management Authority $100,000 over two years to be administered to the Shoalhaven Riverwatch Landcare Group or a similar group for the purposes of restoration and erosion control works on the Shoalhaven River, and
- pay the EPA’s costs assessed and agreed at $28,000.
Protecting marine mammals: Wildlife Amendment (Marine Mammals) Bill 2008
The Wildlife Amendment (Marine Mammals) Bill 2008 (WAMM Bill) proposes to amend the Wildlife Act 1975 (Wildlife Act). The WAMM Bill proposes to:
- regulate aircraft-based whale tourism by introducing a permit system (permits will be issued through a competitive tender process)
- authorise the use of permit conditions to control the frequency of tours and manage the amount of time that an operator can spend in the vicinity of a whale
- introduce a framework for licensing commercial seal tourism operators (licensing should be compared with the permit framework that is used to manage whale tourism operators)
- control the number of tour operators using ‘environmentally sensitive areas’
- give new emergency management powers to Department of Sustainability and Environment Wildlife Officers, allowing them to control access in whale and dolphin distress situations
- repeal an obsolete section of the Wildlife Act that provided for the grant of licences to take or kill whales in the course of licensed commercial operations
- increase the maximum permit life for all types of marine mammal tourism from two years to 10 years, and
- make a range of amendments to simplify and improve the operation of the Wildlife Act.
The Marine Mammals Bill provides much more stringent and proactive approach to wildlife resource management.
The increase in licence terms will provide greater commercial certainty to marine tourism operators. This is expected to enable businesses to plan and invest in relevant capital intensive operating machinery (such as vessels and aircraft) with greater commercial confidence.
The WAMM Bill is currently before the Legislative Council.
Reserved land expansions: National Parks and Crown Land (Reserves) Acts Amendment Bill 2008
The National Parks and Crown Land (Reserves) Acts Amendment Bill 2008 (NPCLRAA Parks Bill) received a second reading in the Legislative Council on 31 July 2008. The NPCLRAA Bill contains three significant reforms.
Firstly, the NPCLAA Bill proposes to create the Cobboboonee National Park (18,500 hectares) and the Cobboboonee Forest Park (8,700 hectares) in south-west Victoria (near Portland and Heywood).
Secondly, the NPCLAA Bill proposes to add a total of 300 hectares (approximately) of reserved land to the following:
- Great Otway National Park
- Kinglake National Park
- Lower Glenelg National Park
- Holey Plains State Park
- Langi Ghiran State Park
- Warrandyte State Park, and
- Castlemaine Diggings National Heritage Park.
Thirdly, the National Parks Bill will amend the Mineral Resources (Sustainable Development) Act 1990 to include both the Otway and Cobboboonee Forest parks as ‘restricted Crown land’. This means that any mineral, petroleum or geothermal exploration operations in these areas require relevant consent from the Mineral Resources minister.
Land and Biodiversity in Climate Change Green Paper
The Land and Biodiversity in Climate Change Green Paper (Green Paper) is intended to facilitate discussion on how land and biodiversity can be managed in light climate change.
The Green Paper explores issues such as how the Victorian Government can agitate and regulate the emerging bio-sequestration market in light of the national emissions trading scheme. Suggestions include using coercive measures to ensure that plantings are appropriate for a particular area, and encouraging plantings in priority areas (such as within riparian zones). The Green Paper also suggests that the Victorian Government can examine opportunities for ‘topping up’ private sector investment where biodiverse plantings are squarely geared toward achieving public outcomes. The government’s role as an information provider to market players is also discussed.
Submissions on the Green Paper closed on 20 June 2008. A White Paper, which will establish the Victorian Government’s policy and program directions to guide land and biodiversity management over the next 20-50 years, is due for release during the first half of 2009.
Changes to Aboriginal and Torres Strait Islander land grants: Aboriginal and Torres Strait Islander Land Amendment Act 2008
The Aboriginal and Torres Strait Islander Land Amendment Act 2008 (QLD) (ATSILA Act) received assent on 21 May 2008.
The ATSILA Act allows the minister to declare that relevant land is not transferable land, and provides a process for Aboriginal people to express an interest to the chief executive in having particular land made transferable.
The ATSILA Act also:
- provides for the forfeiture of particular leases and sets out associated requirements and procedures
- provides for the transfer of land held by a land trust or by a registered native title body corporate
- allows Aboriginal land to be leased for certain purposes, including allowing the grant of long-term leases, up to 99 years, and
- provides for mortgages of leases over Aboriginal land, as well as the leasing of Aboriginal trust land.
New pest declaration: Land Protection (Pest and Stock Route Management) Emergency Pest Notice 2008
The Land Protection (Pest and Stock Route Management) Emergency Pest Notice 2008 (emergency notice) was made under the Land Protection (Pest and Stock Route Management) Act 2002 (QLD) and commenced on 18 April 2008. The emergency notice declared gamba grass (Andropogon gayanus) as a class 2 pest.
No time requirements for clearing a fire hazard: Environmental Protection (Clearing of Native Vegetation) Amendment Regulations 2008
The Environmental Protection (Clearing of Native Vegetation) Amendment Regulations 2008 (EPCNV Regs) commenced on 11 June 2008.
The EPCNV Regs amend the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 by removing the requirement that, in order to constitute ‘prescribed clearing’, clearing for a fire hazard must be completed within a prescribed time limit.
Comments sought on Northern Yilgarn management
The DEC is seeking public input on the Northern Yilgarn Issues Paper prepared for the Northern Yilgarn Conservation Reserve. The area is valuable due to its natural diversity, sites of cultural interests, rare flora and fauna and significant mineral resources. In particular, there is extensive mining interest in the Banded Ironstone Formations located within and surrounding the Northern Yilgarn Planning Area, with a number of mining projects already operating when the issues paper was prepared.
Native Vegetation Clearing Legislation to be reviewed
The Environmental Protection (Clearing of Native Vegetation) Regulations 2004, and sections of the Environmental Protection Act 1986 (EP Act) that relate to the clearing of native vegetation, will be reviewed by an independent review committee. The committee’s review and recommendations are due at the end of September 2008.
The review is aiming to improve process and environmental outcomes relating to the clearing of native vegetation while fostering sustainable development of the state’s resources. The review will also look at whether the approval process imposes excessive red-tape burdens on applicants.
It is currently an offence to clear native vegetation without a permit under the EP Act, unless a statutory exemption applies.
Changes proposed for Crown land management: Crown Land Management Bill 2008
The Crown Land Management Bill 2008 (CLM Bill) proposes to make significant amendments to the Crown land management regime in South Australia. The primary objective of this reform is to facilitate a more active and improved system for the disposal, management and conservation of Crown land. To achieve this, this CLM Bill includes provisions that:
- empower the minister to grant freehold title, leases, easements and licences over Crown land
- empower the minister to compulsorily acquire land for the purposes of Crown land management
- empower the minister to dispose of land declared to be surplus to the requirements of government by competitive offer processes
- empower the minister to declare land custodians
- empower the minister to serve notice on a lessee, licensee or custodian to remediate the condition of any land that presents a risk to the environment, public health or safety. In the event that the notice is not complied with, the minister may remediate the site and recover any costs
- provide for lodgement of a bond or financial assurance if the minister is satisfied that the proposed use of the land may lead to an environmental risk
- modernise offence and penalty provisions
- improve the administration of risk in the areas of contamination and native title
- ensure open and transparent Crown land management processes (including mandating accountable reporting procedures and allow extensive appeal rights)
- remove current legislative barriers to implementing an automated registration process for Crown leases
- implement various competition objectives
- oblige the minister to monitor the efficiency of Crown land management processes, and
- repeal certain acts, including the Crown Lands Act 1929, the Discharged Soldiers Settlement Act 1934 and the Irrigation (Land Tenure) Act 1930 and amend others.
Decision-making under the new scheme will also be guided by a set of principles for ecologically sustainable land management.
The CLM Bill represents a significant overhaul of the tenure and management system of South Australian Crown land. The South Australian Government intends that this will result in a significantly improved administration of Crown land.
The CLM Bill received a second reading in the House of Assembly on 17 June 2008.
No genetically modified food to be grown in South Australia: Genetically Modified Management Crops Management Regulations 2008
The Genetically Modified Crops Management Regulations 2008 (GMCM Regs) declare the state of South Australia as an area in which no genetically modified food crops may be grown. The GMCM Regs have been made under the authority of the Genetically Modified Crops Management Act 2004. The regulations commenced on 28 April 2008.
Director liable for offence committed by employees: Gould v Austral Tree & Stump Services Pty Ltd & Anor [2008] SASC 124
The South Australian Supreme Court held that Austral Tree & Stump Services Pty Ltd (Austral) and Austral’s Director (director) were both guilty of removing native vegetation contrary to section 26 of the Native Vegetation Act 1991 (NV Act).
The relevant conduct was carried out by three of Austral’s employees at the direction of Austral’s client. Austral was charged through a vicarious liability provision in the NV Act, and the director was charged through a provision imputing liability on company managers for offences committed by the company.
At trial, the magistrate acquitted Austral and the director of liability by finding that Austral’s employees were acting outside the scope of their employment. The magistrate found that the employees were working under instructions from the client, as opposed to Austral’s operations manager.
On appeal, the Supreme Court found there was nothing in the evidence to suggest that Austral’s employees were acting other than in accordance with the terms of their employment. In working at the client’s direction, they were doing precisely what the operations manager had instructed them to do.
The case is a reminder that company managers should be mindful of their environmental legal obligations. Such an approach will reduce the risk of prosecution and ensure that legal liability is not personally brought back to them.
No prior convictions or commercial imperatives not persuasive in obtaining a penalty without conviction: Gould v Austral Tree & Stump Services Pty Ltd & Anor [2008] SASC 149
In related proceedings, Austral and the director submitted that the circumstances surrounding both parties’ culpable conduct made them appropriate cases for the court to exercise its discretion and not record a conviction. In support of this, Austral and the director argued that:
- the breaches of the NV Act were inadvertent
- Austral and the director had no prior convictions, and
- should convictions be recorded, Austral would likely be impeded in future contract bids.
In reaching a conclusion unfavourable to both Austral and the director, the court reasoned that:
- a person’s good character is only a factor to consider in exercising the court’s discretion, and is not determinative
- in any case, Austral did not have an unblemished character (they had been previously convicted of a safety offence), and
- the regime Austral had in place to ensure that relevant environmental approvals were in place was deficient.
The court considered these factors to point towards recording a conviction. It was concluded that the relevant ‘extenuating circumstances’ required for the court to exercise its discretion and not record a conviction, had not been established in this case.
No developments for this quarter.
First joint management plan
The first National Park Joint Management Plan for the Rainbow Valley Conservation Reserve has commenced operation.
The Minister for Parks and Wildlife announced in February 2008 that the territory government was working on joint management plans for the Rainbow Valley and Devils Marbles Conservation reserves. Rainbow Valley’s Management Plan was tabled in parliament at the start of May 2008 and commenced, earlier than expected, in June 2008.
As advised in previous editions of Environmental Quarterly, the joint management plans scheme facilitates coordination between traditional owners and the government for the management of certain sites.
The aim of the joint management plans is to recognise the importance of the traditional owners’ cultural connection to the land and aims to incorporate this within the future management methods for the site, while ensuring that the areas are utilised to the benefit of all Territorians.
The joint management plan gives authority to traditional owners under their law and Northern Territory law.
No developments for this quarter.
More information
For more information please contact