Welcome to the first quarterly environment and planning update from Beatty, Hughes and Associates.

These updates are intended to provide our readers with a snapshot of recent, relevant developments in the areas of law and policy in which we practice:

 • Environment

 • Planning

 • Valuation and compulsory acquisitions

 • Waste

• Heritage

Highlights in this edition:

 In Victoria, the Environment Protection Amendment Act 2018 (Vic) commenced on 1 July 2021, bringing with it significant changes to the environmental law regime in Victoria. We summarise the implications of these changes in our ‘Spotlight’ section of this update.

On 10 September 2021 the NSW the Government released its Energy from Waste Infrastructure Plan which significantly restricts the development of Energy from Waste facilities and applies retrospectively to facilities already in the process of approval and construction. The specific limited circumstances in which a facility may proceed are examined in detail below. Additionally, we review the proposed Environmental Planning and Assessment Regulation 2021, which may result in ‘energy recovery facilities’ being categorised as ‘designated development’.

We examine the recent decision of the Queensland Supreme Court in R v Dumble & Ors [2021] QCA 161 which held that an executive officer of a corporation can only be held personally liable for offences committed by that corporation if they held their position at the time the harm to the environment came to fruition, even if they held that position at the time the causative act was committed. This decision led to the proceedings, brought against the former executive officers of Linc Energy Limited in relation to the ‘worst contamination event in Queensland history’, being discontinued.

We also provide a summary of relevant recent fines and prosecutions in New South Wales, Victoria and Queensland for environmental offences including development without consent, illegal dumping of asbestos, illegal land clearing and improper use of a fumigant resulting in the production of methyl isothiocyanate.

Spotlight – Overhaul of Victoria’s environmental regulatory regime

 Significant amendments to the Environment Protection Act 2017 (Vic) (Amended EP Act) commenced on 1 July 2021, bringing with it a wholescale reform to the environmental law regime in Victoria.

We set out some of the key changes and reforms below.

General Environmental Duty

The Amended EP Act signals a fundamental shift from a consequence-based regulatory model to a prevention-based regulatory model. A new ‘general environmental duty’ (GED) has been introduced, which applies to any person engaging in an activity that may give rise to risk of harm to human health or the environment from pollution or waste.

The duty requires that person to proactively reduce those risks, as far as is reasonably practicable. The offence of not complying with the GED may arise regardless of whether there has been any actual harm – the GED is breached whenever a risk is not proportionally managed.

The Victorian EPA has recommended that businesses use the following 4 steps to manage their risks:

• Identify any hazards from activities that could cause harm.

• Assess the risk, based on the likelihood of the hazard occurring and the consequence of the harm.

 • Implement suitable control measures, based on what is reasonably practicable for the business, with the aim of choosing the highest level of protection and reliability.

 • Check controls regularly, including to ensure that they remain the most appropriate

The phrase ‘reasonably practicable’ implies a level of proportionality – what is reasonably practicable for one business may not be reasonably practicable for another. For example, a large business will be expected to know more about their risks and do more to mitigate them than a small business.

New duties in relation to pollution incidents and land contamination

 In addition to the GED, the Amended EP Act imposes a number of other obligations on duty holders, including:

 • a duty to respond to harm caused by a pollution incident, which may include an obligation to restore affected areas back to their original state and to pay for the clean-up;

• a duty to notify the Vic EPA of pollution incidents that cause or threaten ‘material harm’, which includes where the cost of clean-up is over $10,000;

 • a duty to manage contaminated land, which includes an obligation to investigate suspected contamination under certain circumstances; and

 • a duty to notify the Vic EPA of ‘notable contamination’.

New waste classifications

The waste classifications have changed under the Amended EP Act. In particular:

• The category of ‘industrial waste’ is expanded to include:

• any waste once it is collected or gathered at a transfer station, resource recovery facility or a landfill; and

 • non-kerbside wastes transported for fee or reward.

• ‘Prescribed industrial waste’ has been replaced with ‘priority waste’, which includes pre-classified industrial wastes as well as industrial wastes that have certain hazardous properties. ‘Priority waste’ includes certain wastes that were not ‘prescribed industrial wastes’.

 • There is a new category of ‘reportable priority waste’, which includes the most hazardous wastes. Additional duties apply in relation to reportable priority waste

New duties in relation to waste

There are three new waste duties under the Amended EP Act. These duties require that waste is properly classified, that waste is properly transported, and that waste is sent to a lawful place.

Additional duties also apply in relation to priority wastes:

• priority wastes must be contained in a manner that prevents their escape;

 • priority wastes must be isolated in a manner that ensures resource recovery remains practicable (including during transport); and

• those who create priority waste have a duty to take all reasonable steps to identify and assess alternatives to waste disposal.

 New permissions scheme

There are three tiers in the EPA’s new permission scheme comprising licenses, permits and registrations. Licenses are required for activities with the highest complexity and risk. They typically entail a customised EPA assessment and the imposition of tailored conditions. Permits are targeted at moderate risk activities or activities which are high risk but low complexity. They are lower cost and lower burden tools compared to licenses and typically are made up of mostly standardized conditions, although at times will contain specific conditions. Registrations are a simple type of permission which can be automatically granted. They are targeted at the lowest risk activities and have standardized conditions across different activity types.

New Penalties

The Amended EP Act also substantially increases the size of the maximum penalties for offences under the Act:

• For corporations that breach the GED, the new maximum penalty is $3,634,800.00.

 • For corporations that commit illegal dumping, the maximum penalty has doubled to $1,817,400.00.

For individuals breaching the GED or other duties, the maximum penalty is $726,960.00 and/or imprisonment of up to 5 years.

Directors and others involved in the management of a corporation may also be liable if the corporation has committed an offence, unless they can prove that they exercised due diligence.

Transitional Arrangements

Most duty holders who held licences under the previous regime will automatically continue to hold the equivalent permission under the Amended EP Act.

In relation to waste licences and operating licences, the Amended EP Act contains transitional arrangements in relation to permissions held under the previous regime which remain valid until 30 June 2022.

During the transition period the EPA will be contacting these licence holders to update their licences to reflect the new 3-tiered regime.

Businesses that hold licences should be preparing to update their licences to be in-line with the new regime. They should also consider what amendments they might need to implement to their processes to fall in line with the regime’s new requirements, particularly in relation to the GED.

Spotlight – Queensland Supreme Court limits scope of directors’ liability for environmental offences

The Supreme Court of Queensland has held that an executive officer of a corporation can only be guilty of the offence of failing to ensure that the corporation does not wilfully and unlawfully cause serious environmental harm if the serious environmental harm comes to fruition during the executive officer’s tenure in that corporation (R v Dumble & Ors [2021] QCA 161) (R v Dumble).

Background

 In 2007, Linc Energy Limited (Linc) commenced a process of underground coal gasification (‘fracking’) on a site outside the town of Chinchilla, located on the Queensland Western Downs. Linc operated the site in a manner that allowed significant amounts of toxic and explosive gases, tars and oils to escape and contaminate the ground water system to the extent that local farmers are no longer able to use local ground water for their stock.

 On 11 May 2018 the Queensland District Court found Linc guilty of five counts of wilfully and unlawfully causing serious environmental harm and imposed a total fine of $4.5 million dollars, the highest fine ever imposed on a company for an environmental offence. The Court held that Linc put its commercial interests ‘well above its duty to conduct its processes in a way that safeguarded the environment’ and described the actions of Linc as ‘ecological vandalism’.

 As Linc entered into liquidation in 2016, however, the fine imposed on it will never be paid.

Supreme Court Decision

Four directors of Linc were then charged with having committed the offence of failing to ensure that Linc complied with the Environmental Protection Act 1994 (QLD), when Linc did wilfully and unlawfully cause serious environmental harm contrary to section 437(1) of that Act.

The prosecutor alleged that the corporation performed the acts that caused the environmental harm between 1 March 2007 and 1 July 2008. The prosecutor did not identify when it could be said that the serious environmental harm that resulted from those acts occurred. The prosecutor asserted that a person who was an executive officer at the time a company actively planned and approved certain actions that ultimately resulted in serious environmental harm would be guilty of the offence of failing to ensure that the company did not cause serious environmental harm. The prosecutor argued that, otherwise, ‘an executive officer who has been grossly negligent can escape liability by simply resigning before the corporation’s servants put into effect the decisions to which the executive officer has contributed’.

In R v Dumble the Supreme Court of Queensland held that it is only once the serious environmental harm has occurred that a company will be in breach of section 437(1) of Environmental Protection Act 1994 (QLD). As a result, the Court also held that the offence of failing to ensure that the corporation complies with the Act will also only occur at that time.

Implications of decision

 The following consequences flow from the R v Dumble decison:

• For the executive officer whose tenure includes the period where the company takes the action that ultimately causes serious environmental harm, but ends before the serious environmental harm actually occurs, that officer:

• will not be guilty of the offence of failing to ensure that the company does not cause serious environmental harm; but

• may be guilty of other offences that crystalise at the time the action takes place rather than at the time any harm occurs, such as the water contamination offences (as that offence occurs when a substance is placed in a location, rather than when any pollution results) or the offences of aiding, enabling, counselling or procuring another person to commit an offence.

• For the executive officer who’s tenure commences after the period where the company takes the action that ultimately cause serious environmental harm, but includes the period where serious environmental harm occurs – the statutory presumption that the accused omitted to do something that would have ensured that the corporation did not commit the offence will apply. That presumption can be rebutted, however, if the executive officer proves that they ‘took all reasonable steps to ensure the corporation’ did not commit the offence or that the officer ‘was not in a position to influence the conduct of the corporation in relation to the offence’.

Other updates

NSW – Changes to planning requirements for ‘energy recovery facilities’

Two significant changes have been flagged by the NSW Government in relation to the way in which ‘energy recovery facilities’ will be dealt with under the NSW planning regime.

 Energy from Waste Infrastructure Plan

The NSW Government has released its Energy from Waste Infrastructure Plan, which states that changes to planning instruments and legislation will shortly be made so that thermal energy from waste facilities will only be permitted:

• in the West Lithgow Precinct (which includes Re.Group / Energy Australia’s Mount Piper Project);

• in the Parks Special Activation Precinct;

• in the Richmond Valley Regional Jobs Precinct (which does not include Cape Byron Power’s Condong Plant);

 • in the Southern Goulburn Mulwaree Precinct (which includes Veolia’s Woodlawn Advanced Energy Recovery Centre but not Jerrara Power’s proposed Energy from Waste facility at Bungonia); or

• where the facility uses waste, or waste-derived, feedstock to replace less environmentally sound fuels (including coal or petroleum-based fuels) thermally treated (or approved to be thermally treated) at the site, and the energy produced from the waste is used predominantly to power the industrial and manufacturing processes on-site, rather than exporting that energy to the grid.

Revised planning instruments that will give effect to the new restrictions are expected to be in place by the end of 2021, with additional amendments to be made to legislation in late 2021 to early 2022.

The NSW Government has made clear that there will be no ‘savings and transitional provisions’ and that these changes will apply to any facility that is not yet up and running. A number of development applications are therefore likely to be withdrawn as there will be no prospect of them being approved.

‘Energy recovery facilities’ to be categorised as ‘designated development’

The NSW Department of Planning, Industry and Environment has released a proposed Environmental Planning and Assessment Regulation 2021 (Proposed 2021 Regulation), which includes a number of changes that the Department says are designed to make the planning system easier to use.

 One of these changes will result in ‘energy recovery facilities’ being categorised as ‘designated development’. ‘Energy recovery facilities’ will be defined as a building or a place that receives waste from on site or off site and that recovers energy from waste. Development for the purposes of an ‘energy recovery facility’ will be designated development if the facility:

• processes more than 200 tonnes per year of waste, other than hazardous waste, restricted solid waste, liquid waste or special waste, or

• has on site at any time more than 200 kilograms of hazardous waste, restricted solid waste, liquid waste or special waste.

The processing of contaminated soil, container reconditioning, and the recovery of gases classified in Class 2 under the ADG Code will not be designated development.

Interestingly, although the Regulatory Impact Statement for the Proposed 2021 Regulation states that energy recovery from waste facilities will only be designated development where they also require an EPL, only those facilities that receive general waste from offsite (not onsite) are required to hold an EPL as ‘energy recovery facilities’ – whereas facilities that receive such waste from both on site and off site sources will be designated development (the trigger for the need to hold an EPL for facilities that recover energy from hazardous waste, restricted solid waste, liquid waste or special waste is the storage of a specified amount of waste so the source is not relevant).

Further, under Proposed 2021 Regulation and the State Environmental Planning Policy (Activation Precincts) 2020, development for the purposes of ‘thermal electricity generating works’ are not designated development within the Regional Enterprise Zone in the Parkes Activation Precinct. ‘Thermal electricity generating works’ are defined to mean ‘electricity generating works that process waste (other than hazardous waste, restricted solid waste, liquid waste or special waste) by thermal treatment for the purposes of generating electricity.’

As a result, if the Proposed 2021 Regulation is made as drafted, facilities that generate energy from waste and that:

• process more than 200 tpa of general waste from offsite will be designated development – unless in the Parkes Activation Precinct – and need an EPL;

 • process more than 200 tpa of general waste from onsite will be designated development – unless in the Parkes Activation Precinct – but will not need an EPL; or

• have on site more than 200 kg of hazardous waste, restricted solid waste, liquid waste or special waste – regardless of the source of the material and location of the facility – will be designated development and will need an EPL.

We would also have four different definitions for the same type of facilities under different pieces of planning and environmental law and policy in NSW:

• Energy recovery facility under the Protection of the Environment Operations Act 1997.

• Energy recovery facility under the Environmental Planning and Assessment Act – with a different definition to that adopted under the Protection of the Environment Operations Act 1997

• Thermal electricity generating works – under the State Environmental Planning Policy (Activation Precincts) 2020.

• Energy from waste – as defined in the NSW EPA’s Energy from Waste Policy Statement.

Submissions may be made on the Proposed 2021 Regulation until 22 September 2021.

 You can review a copy of the public consultation draft of the Proposed 2021 Regulation at this Link.

Cth – Clean Energy Regulator Compliance and Enforcement Priorities 2021- 2022 released

The Clean Energy Regulator (CER) administers and enforces the Australian Government’s programs for reporting and reducing Australia’s carbon emissions, including the Emissions Reduction Fund, Renewable Energy Target and National Greenhouse and Energy Reporting scheme. The CER publishes annually a list of its compliance and enforcement priorities, providing detail on its specific areas of focus for that year. The CER has recently published its Compliance and Enforcement Priorities for 2021-2022 (CER Priorities).

The key CER Priorities for 2021-2022 period include:

• considering whether carbon service providers are fit and proper persons to participate in the Emissions Reduction Fund;

• monitoring and investigating whether accredited installers for the installation of smallscale solar PV systems meet their on-site attendance obligations and make accurate statements of certification eligibility. Installers who submit false claims may have their accreditation cancelled or face civil proceedings or criminal prosecution. Retailers and registered persons knowingly involved in the improper creation of certificates will also be investigated and potentially sanctioned; and

• verifying whether a participant in the National Greenhouse and Energy Reporting scheme has ensured that the correct controlling corporation reports under the scheme. Court ordered civil penalties will be sought in cases of deliberate and consistent incorrect reporting.

CER has also listed its continuing and enduring priorities for the 2021-2022 period and has noted that it will prioritise enforcement action for deliberate illegal behaviour by scheme participants. These priorities include taking compliance action against people who make claims based on false or misleading claims and/or reports, or those who submit inaccurate, incomplete or late reports.

NSW – Design and Place State Environmental Planning Policy

A new “Design and Place State Environmental Planning Policy” (SEPP) is proposed to come into effect in late 2021. It is currently being finalised after public comment closed at the end of April. The intention of the SEPP is to provide greater certainty and flexibility for development to achieve good design outcomes. The SEPP aims to reduce prescriptive measures and encourage innovation by establishing central principles for design and place.

It will replace existing building design standards under SEPP 65 and the BASIX SEPP, require the Apartment Design Guide to be updated and include a new Urban Design Guide specifying criteria for precinct planning and large-scale development.

NSW – Changes to clause 4.6 of the standard instrument LEP

Environmental Planning Instruments, such as Local Environmental Plans and State Environmental Planning Policies are documents which contain development standards that regulate the type, size and scale of development that can be approved. These standards cover different aspects of a proposed development – such as minimum lot size, floor space ratio and building height.

There has always been a mechanism in planning instruments to enable a consent authority to waive strict compliance with development standards if certain criteria were satisfied .

A new test has been proposed to waive strict compliance with a development standard. By introducing a new test, the Department is trying to simplify the current test as it has been the subject of much litigation over the years, and as such has become overly complicated and difficult to apply. The difficulty in creating a new test is that it will likely lead to more litigation in order to interpret and apply the new test.

You can review the NSW Government’s case for the new test at this Link.

NSW – Rapid Assessment Framework

The Rapid Assessment Framework is a suite of system improvements, enacted in the Major Projects Regulation which are designed to increase the efficiency of the assessment of State Significant Development (SSD) and State Significant Infrastructure (SSI) proposals while also improving assessment quality and engagement standards.

 The Major Projects Regulation was made on 1 July 2021 and implements the reforms in three stages. The changes are significant and applicants will need to consider the new requirements carefully when preparing an EIS for state significant projects to ensure that the application satisfies the new requirements.

Stage 1 – SEARs

Stage 1 commenced on 1 July 2021 and apply to the Planning Secretary’s environmental assessment requirements or SEARs.

SEARs issued for state significant proposals now only operate for 2 years. Applications to extend SEARS may be made in writing prior to expiry but the total extension period cannot exceed 2 years.

 Sunset provisions have also been introduced for SEARs issued prior to 1 July 2021. SEARs issued prior to 1 July 2019 will now expire on 30 November 2021. SEARs issued between 1 July 2019 and 1 July 2021 will expire on 1 July 2023.

Stage 2 – Administrative changes and industry specific SEARS

The changes of note include:

New powers to reject applications whereby a consent authority may reject an application if it is not in the approved form, not accompanied by an EIS or if it is otherwise considered by the Secretary to be incomplete.

• The requirements for an EIS have changed. An EIS received by the Secretary after 31 March 2022 must be prepared having regard to newly introduced guidelines.

• New procedures and guidelines will regulate the amendment of state significant applications and the modification of such approvals.

• Industry specific SEARs have been prepared for specific types of development (including hospitals, schools, data centres, hotels).

Stage 3 – REAP

Stage 3 commences on 1 July 2022 and introduces the Registered Environmental Assessment Practitioners scheme or REAP scheme. From 1 July 2022 an EIS accompanying an application for a state significant proposal must also be certified by a REAP.

To date, two REAP Schemes have been accredited: The Planning Institute of Australia’s, PIA Registered Planner Plus (EIA) Scheme and the Certified Environmental Practitioner’s (CEnvP) Impact Assessment REAP Scheme.

 You can review a copy of the Major Projects Regulation at this Link.

 QLD – Northern, Southern and Central renewable energy zones

The Queensland Government has prioritised investment in renewable energy as a means to assist in Queensland’s economic recovery from COVID-19. It has established three Renewable Energy Zones – areas with high quality renewable resources such as wind and solar.

The three zones – Northern QREZ, Central QREZ and Southern QREZ – will be developed in a coordinated way to support new and existing industries, complement local communities and deliver new renewable generation.

The process of developing the QREZ will involve extensive community consultation in order to maximise local benefits in the implementation. The Government has released a community consultation paper which identifies 4 proposed local benefit principles:

• Principle 1: Genuine and ongoing engagement;

 • Principle 2: Shared benefits with communities;

• Principle 3: Buy local, build local; and

• Principle 4: Local jobs and secure work. Later this year, the Queensland Government will be releasing a Technical Discussion Paper on QREZ design and access.

NSW – Valuer-General issues its review on compensation for cultural loss

The NSW Valuer-General has released the Review of Forms of Cultural Loss and the Process and Method for Quantifying Compensation for Compulsory Acquisition, which analyses how and to what extent cultural loss has been and could be compensated in NSW as part of the acquisition of interests in land.

The Review highlights the emphasis in the legislation on market value, assuming circumstances where both the acquiring authority and the owner of the land being acquired are “willing but not anxious” to complete the transfer of land. However, it is recognised that “determination of compensation for cultural loss is more akin to an assessment of worth, acknowledging the actual parties and their interests in an actual transaction, removing commercial ambivalence and allowing reflection of the worth to a specified party.”

There is little judicial guidance available at present to inform the assessment of compensation for acquired land that produces a loss of cultural value. The High Court’s decision in the Timber Creek case serves as the principle authority on the matter, but it reflects the developing nature of this area of law.

The Review refers to the requirements under s 54 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) that dispossessed owners must be justly compensated in matters involving native title claims. However, the process for doing so is not clear, given the non-economic and potentially unquantifiable nature of the loss.

To improve and inform the process, the Valuer-General has presented a series of principles for community feedback and discussion, including:

• distinguishing cultural loss from existing heads of compensation under the Just Terms Act, such as special value or solatium;

• that loss in perpetuity be reflected in the compensation payable;

• that the forms and number of forms of cultural loss be better understood through conference between the Valuer-General and the claimant; and

 • the adoption of tiers of significance in assessing the extent of cultural loss involved. You can review a copy of the Review at this Link.

NSW – Powers to amend a modification application

On 14 July this year, the NSW Government amended the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) to provide an express power to amend a modification application under Part 4 of the Environmental Planning and Assessment Act 1979 (EPA Act). This legislation was brought into effect less than two weeks after the NSW Court of Appeal (NSWCA) decision in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 (Dartbrook v the Minister).

The case Dartbrook v the Minister involved an application by Dartbrook to modify a development consent for an underground coal mine, the Dartbrook Mine, in the upper Hunter Valley. The modification application was made under s 75W of the EPA Act by means of legislation that saved these (now repealed) provisions. The Independent Planning Commission (IPC), as delegate of the Minister for Planning and Public Spaces, approved in part and refused in part the modification application. Dartbrook appealed to the Land and Environment Court (LEC) against the IPC’s decision.

As part of the LEC proceedings, the Primary Judge, Duggan J, ordered that an intervening party, the Hunter Thoroughbred Breeders Association (HTBA) be joined to the proceedings to allow them to raise the contention that the decision, agreed under section 34 of the Court Act, was not a decision that the Court could have made in the exercise of its functions. Duggan J joined HTBA to the proceedings.

Dartbrook appealed to the NSWCA against HTBA’s joinder. The Court of Appeal found that more limited third-party joinder rights applied in appeals relating to the now repealed Part 3A.

In the course of the judgement Preston CJ opined that an applicant cannot amend a modification application once it has been made and the Court, or any consent authority, has no such power to amend a modification application. Preston CJ’s reasoning was followed by the LEC in Duke Developments Australia 4 Pty Limited v Sutherland Shire Council [2021] NSWLEC 69 in a decision handed down on 2 July 2021. Less than two weeks later, the NSW Government had amended the EPA Regulation to provide an express power to amend a modification application, although this regulation does not apply to cases such as Dartbrook which are assessed under the now repealed part 3A of the EPA Act.

 This case and the NSW government’s swift subsequent action demonstrates how quickly the NSW Government is prepared to act when principles in caselaw, when applied further by the Courts or consent authorities, could potentially change the way that planning matters are determined.

 Beatty Hughes acted for the Hunter Thoroughbred Breeders Association in this matter.

 You can read the LEC judgment at this Link and the NSWCA judgment at this Link . You can read the Environmental Planning and Assessment Amendment (Modifications) Regulation 2021 that was enacted at this Link.

Cth – Offshore Electricity Infrastructure Bill 2021 – will it blow hurdles for investors away?

On 2 September 2021, the Offshore Electricity Infrastructure Bill (the Bill) was introduced by Federal Minister for Energy and Emissions Reduction, Angus Taylor, in the Commonwealth Parliament. The Bill, once enacted, will establish a regulatory framework for the development of offshore renewable energy infrastructure and offshore electricity transmission infrastructure in Commonwealth waters, thereby paving the way for the first offshore wind farm developments to be approved in Commonwealth waters.

Once passed, the Bill will provide the framework to implement the Marinus Link, a proposed 1,500 megawatt transmission line between Tasmania and Victoria. Marinus Link is intended to provide additional interconnection needed to export the electricity generated by the Battery of the Nation hydro projects in Tasmania, to the mainland.

 It will also provide certainty for other offshore wind farm proposals that are under development, including the 2.2-gigawatt ‘Star of the South’ proposal off the coast of Gippsland, Victoria, and the ‘Sun Cable’ that proposes to transmit clean energy from the north coast of Australia to Singapore.

Regulation of offshore infrastructure activities

Under the Bill, it will be prohibited to construct, install, commission, operate, maintain, or decommission offshore renewable energy infrastructure or offshore electricity transmission infrastructure in the Commonwealth offshore area without a licence or other authorisation under the Bill.

To obtain a licence, the Minister must first declare an area in the Commonwealth offshore area as an area that is suitable for offshore renewable energy infrastructure. The Minister can limit the kinds of licences that may be granted and require conditions to be imposed on them.

The Bill provides for four types of licences:

 • A feasibility licence which authorises the licence holder to assess the feasibility of an offshore infrastructure project and apply for a commercial licence for the project within a declared area. To apply for a feasibility licence, the Minister will issue a public invitation to apply for a feasibility licence in relation to a declared area.

 • A commercial licence which authorises the licence holder to carry out an offshore infrastructure project for the purpose of exploiting renewable energy resources. To obtain a commercial licence, applicants must first hold a feasibility licence.

• A research and demonstration licence which authorises research into, or demonstration of, offshore renewable energy infrastructure or offshore electricity transmission infrastructure. This kind of licence is suitable for smaller-scale projects which are researching, testing, or demonstrating emerging technologies.

 • A transmission and infrastructure licence which authorises the licence holder to store, transmit or convey electricity or a renewable energy product. Unlike the other kinds of licence, a transmission and infrastructure licence can cover one or more areas outside a declared area.

Application and other considerations

It is important to note that the Bill has a narrow application as it only applies to the ‘Commonwealth offshore area’. The Commonwealth offshore area is defined to mean the territorial sea of Australia and the exclusive economic zone but does not include ‘coastal waters’, which is the part of the sea which is controlled by a State or Territory. Coastal waters extend 3 nautical miles from the shore, whereas Commonwealth waters and the exclusive economic zone extend from 3 nautical miles to 200 nautical miles from the coast.

As a result, an offshore infrastructure developer would also need to consider whether any of the following approvals may be required in relation to infrastructure from the coastal waters into the shore:

• the relevant planning authority, for example, in NSW approvals will be required from the NSW Department of Planning, Industry and Environment under the Environmental Planning and Assessment Act 1979,

 • the relevant environmental authority, such as the Environment Protection Authority, and

• the relevant electricity distributor. All Australian jurisdictions have different processes for obtaining approval, ensuring compliance, and different authorities which are responsible for permit enforcement and ensuring compliance.

What’s next

 Maiden voyagers in this space will require a knowledgeable, detail-oriented team in order to navigate the proposed legislation, but the Bill represents an exciting step towards unlocking the potential for more renewable energy in Australia.

NT – Prohibition of Seabed Mining in NT Coastal Waters

 On 4 August 2021, the NT Minister for Environment declared seabed mining to be a prohibited action in accordance with section 38 of the Environment Protection Act 2019 (NT) thereby effectively banning all seabed mining in NT coastal waters. The decision comes after an almost decade long moratorium on seabed mining which was first declared in March 2012 in response to strong community concerns regarding the limited knowledge and information about the environmental impacts of seabed mining and management. Prior to the moratorium, a number of applications to explore for minerals or sands had been put forward, particularly in relation to deposits of manganese off the coast of Groote Eylandt and in the Limmen Bight.

 The moratorium allowed time for the Northern Territory Environment Protection Authority (NT EPA) and the Aboriginal Areas Protection Authority to review the actual or potential impacts of seabed mining. The NT EPA delivered its Final Report in December 2020 which concluded that although “proposed reforms of the environmental regulation of mining provide an opportunity to consider whether further changes are required to effectively regulate seabed mining… there is no guarantee that a particular proposal (or the industry) would ever be acceptable to communities of the NT”.

 In making the decision to declare seabed mining a prohibited action, the Minister highlighted a numbers of aspects, including:

 • the economic, cultural and heritage values of the NT coastal environment;

 • the high risks and potential impacts posed to the coastal environmental;

• the lack of adequate information regarding cultural heritage sites; scientific research regarding the extraction of seabed minerals; and scientific research regarding the potential impacts of seabed mining;

 • the lack of an appropriate regulatory framework; and

 • that allowing seabed mining would be contrary to the principles of Ecologically Sustainable Development set out in the Environment Protection Act 2019 (NT), particularly the precautionary principle.

NSW – Rules for wind and solar farms to be tightened near regional cities

The NSW Department of Planning, Industry and Environment has released draft amendments to the State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP).

The Department has proposed that the Infrastructure SEPP will be amended to tighten controls on wind and solar farms near the fringes of regional cities, under a draft proposal.

The proposed changes would amend the Infrastructure SEPP to require consent authorities to consider if a proposed development will:

 • conflict with existing or approved uses of the land, such as land zoned for residential use;

• significantly impact or conflict with land needed to support the growth of a regional city; and

 • significantly impact the scenic quality and landscape of the regional city;

where projects are proposed for sites within 10 kilometres of the commercial centre, or within 5 kilometres of residential land.

The changes would apply to clean energy projects proposed for sites near several regional cities that have good renewable energy resources, including Albury, Armidale, Bathurst, Dubbo, Griffith, Orange, Tamworth and Wagga.

The state government is also reviewing and updating its existing Large-scale Solar Energy Guidelines and Wind Energy Framework to ensure they adequately protect community interests.

Submissions on the proposed changes to the Infrastructure SEPP are open until October 11.

 You can review a copy of the draft proposal at this Link.

NSW Recent Fines and Prosecutions – a selection

• 21 May 2021: Bartter Enterprises Pty Ltd were held criminally responsible for the actions of a contractor operating on their site, who allowed 1 kg of ammonia to be released into the atmosphere. The LEC fined the defendant $50,000 plus ordered them to pay the prosecutor’s legal costs in an amount to be determined, and the prosecutor’s investigation costs in the agreed sum of $837.76 (link).
• 2 June 2021: Sam Abbas (also known as Osama Abbas) pleaded guilty before Pain J in the LEC to three offences in contravention of the Protection of the Environment Operations Act 1997 (NSW). From about February 2015 to May 2016, the defendant caused about 21,990 tonnes of building waste (including asbestos) to be brought onto a property adjacent to the Hawkesbury River predominantly in a flood zone. The defendant submitted that he was trying to improve and level the property, he thought it was “clean fill” and that he did not receive payment for fill brought to the property. The defendant was ordered to pay a total of $230,157.00 inclusive of moiety payable to the prosecutor, and the prosecutor’s costs (link).
• 5 July 2021: Three men were convicted and fined by NSW local courts for refusing to co-operate with NSW Environment Protection Authority (EPA) officers investigating alleged waste crimes. One man who refused to answer questions and made threats of violence against EPA officers investigating an alleged illegal dumping incident was convicted and fined $7,500 on 15 April 2021. A second man was ordered to pay the EPA’s legal costs of $26,000 after pleading guilty to obstructing an EPA officer during an investigation (link).
• 8 July 2021: Western Sydney company BSV Tyre Recycling Australia Pty Ltd has been ordered to pay $20,000 for dangerously and excessively stockpiling waste tyres following prosecution by the NSW Environment Protection Authority (EPA) (link).
• 30 July 2021: Oztech Developments Pty Ltd and Bellagio Investments Pty Ltd were convicted in the LEC in relation to the unlawful development of six dwellings on Cathcart Street, Fairfield. Oztech were ordered to pay $94,500. Bellagio were ordered to pay $76,950 and $17,820. They were both ordered to publish notices in major newspapers (link).
•  5 August 2021: The NSW Environment Protection Authority (EPA) has fined Mount Thorley Warkworth a total of $30,000 for separate alleged water pollution offences at its Hunter Valley open cut coal pits in January 2021 (link)
• 9 August 2021: The Australian and New South Wales Governments have today announced 22 new recycling projects across metropolitan and regional NSW as part of a $600 million national rollout of recycling infrastructure (link).
• 13 August 2021: Narrabri Coal Pty Ltd and Narrabri Coal Operations Pty Ltd, both wholly owned subsidiary companies of Whitehaven Coal Limited, have pleaded guilty to 19 offences of contravening s 378D of the Mining Act 1992. The defendants were fined a total of $372,500.00 and ordered to publish an exhibit in the in the Australian Financial Review and The Daily Telegraph. The contraventions include the unlawful construction of access tracks, the unlawful drilling and rehabilitation of exploration boreholes, and the failure to prepare a site rehabilitation plan. All works relate to the Narrabri Coal mine (link).
• 16 August 2021: A waste contractor who failed to provide information and records required by the NSW Environment Protection Authority (EPA) for an investigation has been convicted and fined $7,500 following prosecution by the EPA (link).

Victorian Recent Fines and Prosecutions – a selection

• 24 August 2021: Environment Protection Authority Victoria (Victorian EPA) has fined an operator of a West Wodonga business $1,983 for storing waste oils and aviation fuel without a licence. During a routine inspection Victorian EPA officers found stored waste motor oil, used cooking oil, oil filters from vehicles and kerosene-based fuel from aircraft, including some liquids kept in rusty, leaking drums in a location close to nearby homes (link).

• 11 August 2021: The Victorian EPA has fined a Benalla particle board manufacturer more than $8,000 over stockpiles of combustible materials that failed to meet with fire suppression requirements. EPA North East Region Manager Renee Palmer says the company had been ordered to make the stockpiles comply with EPA requirements and was given extra time, but did not meet the deadline (link).

• 5 August 2021: Charges laid against George Weston Foods Ltd by the Victorian EPA have resulted in a $100,000 boost for the Mount Alexander Sustainability Group Inc to support the Mount Alexander Regenerative Agriculture Program. The EPA charged the company after the spill allowed untreated wastewater to flow into a nearby creek on 19 February 2019 at the company’s Don KR Castlemaine facility at 64 Richards Rd, Castlemaine (link).

• 5 August 2021: The Victorian EPA has fined North East Water more than $8,000 over a spill that left the water authority pumping sewage out of One Mile Creek at Wangaratta (link).

 • 28 July 2021: The Victorian EPA has laid a total of three charges against Torquay company I, C & J Santospirito Pty Ltd. (Santospirito) under the Environment Protection Act 1970. The charges follow a multi-agency investigation, which included assistance from Surfcoast Shire Council, into an alleged chemical incident at 200 Coombes Rd, Torquay. EPA alleges that Santospirito improperly used a fumigant resulting in the production of methyl isothiocyanate (MITC). MITC affects the eyes and respiratory tract. Several nearby residents reported breathing difficulties as well as stinging and watering eyes (link).

• 22 July 2021: Victorian EPA has fined one of Victoria’s largest waste companies more than $8,000, for failing to comply with its EPA licence following a fire in a stockpile of organic material in February 2021. A drone survey of the SUEZ Recycling and Recovery Pty Ltd Cooper St, Epping premises later found that stockpiles of combustible material exceeded the dimensions required by fire prevention policies and had the potential to not only increase the impacts of a fire, but also to reduce the ability of emergency services to extinguish it (link).

Queensland Recent Fines and Prosecutions – a selection

 • 16 August 2021: A pastoral company has been fined $18,000 in the Dalby Magistrates Court after pleading guilty to illegally clearing land in the Kumbarilla State Forest, southwest of Dalby. The company was also ordered to pay $1,500 in legal costs. Between 20 May 2020 and 15 June 2020, the company used earthmoving machinery, including a bulldozer with a stick rake to clear approximately 25 hectares of land in the state forest (link).

• 2 August 2021: A coal seam gas company (Shell QGC) has been fined $60,000 in the Dalby Magistrates Court for the unauthorised release of coal seam gas water from a pump station. On 11 June 2020, 1.1 megalitres of coal seam gas water was released from the company’s pump station to the surrounding land. The release was not authorised under the conditions of its environmental authority (EA) (link).

This material has been produced by Beatty Hughes & Associates for the purposes of providing general information and does not constitute legal advice.