This update covers the changes made to the Protection of the Environment Operations Act 1997 (NSW) and Contaminated Land Management Act 1997 (NSW) increasing the powers of the NSW Environmental Protection Authority. Changes to the Protection of the Environment Operations Regulation 2021, the SEPPs, and the NSW re-zoning process are also clarified.

Introduction

Welcome to the second 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:

Environmental and planning regulatory reform continues apace in NSW, with some reforms being reversed almost as soon as they are made. This update includes coverage on the changes made to the Protection of the Environment Operations Act 1997 (NSW) and the Contaminated Land Management Act 1997 (NSW) that increase the powers of the NSW Environmental Protection Authority, the proposed changes to the Protection of the Environment Operations Regulation 2021, changes to the SEPPs, and the proposed changes to the NSW re-zoning process.

We also look at some significant recent case law, including the unprecedented wind farm decision, where a Victorian wind farm operator was ordered to pay aggravated damages for the noise generated from its wind turbines and a NSW Land and Environment Court decision on the assessment of ‘market value’ in the context of a compulsory acquisition.

Additionally, we provide an overview of recent fines and prosecutions that have been issued in NSW, Victoria and Queensland.

NSW – Environment Legislation Amendment Act 2022

The Environment Legislation Amendment Act 2022 was assented to on 4 March 2022 and has made important changes to the Protection of the Environment Operations Act 1997 (POEO Act) and Contaminated Land Management Act 1997, and smaller changes to a number of other pieces of legislation.

When introduced into Parliament, the Environment Legislation Amendment Act 2022 was promoted as an opportunity to update environmental legislation in an effort to ‘crack down’ on environmental offenders.

The amendments to the POEO Act are substantial. The potential liability of current and former directors of companies and their related bodies corporate has been significantly extended. The EPA now has the power, in the event that a body corporate does not comply with a clean-up or prevention notice, to issue a supplementary clean-up or prevention notice to a current or former director or to a related body corporate of that corporation. The recipient of the supplementary clean-up or prevention notice must then comply with that notice, and while they may seek to recover their costs in doing so from those who caused or contributed to the pollution incident, the risk as to whether they will actually be able to do so will sit with them.

Some additional offences have been added to the POEO Act. The POEO Act already contained various provisions that made it an offence to provide false and misleading information in various reports or in specific circumstances – but a new generalised offence has been added that arises at any time where a person gives an false or misleading information to the EPA. There is also a new offence of receiving a monetary benefit as a result of the commission of an offence by a corporation, where the person who receives the monetary benefit was a director or person involved in the management of a related body corporate. Monetary benefit orders can also now be obtained against such people and corporations. There are no defences in relation to these provisions. As a result, a director or person involved in the management of a corporations could potentially be liable even if they took all due diligence to prevent the commission of the offence.

The owners of vehicles involved in illegal waste dumping can now also be held liable for that offence.

Changes to the Contaminated Land Management Act, meanwhile, include making the penalties and EAPA powers under that Act comparable with those under the POEO Act. A range of penalties have been increased and clean-up notices can also now be issued not only after an incident has occurred, been studied and confirmed, but also during a contaminated land assessment process or when the EPA is first notified of contamination. The latter change has been made with a view to quickening response times to contamination incidents and limiting the spread of their impact.’

A mechanism has also been added to enable financial assurances to be required to cover ongoing maintenance orders and covenants for land that contains residual contamination.

These reforms will increase the pressure on businesses, their directors, managers and related bodies corporate to ensure environmental compliance is taken seriously.

NSW – Consolidation of State Environmental Planning Policies

On 1 March this year the NSW Government consolidated the 45 previously existing State Environmental Planning Policies (SEPPs) into 11 thematic policies, with the aim of simplifying the system. The one exception was the consolidated Housing SEPP, that had already commenced on 26 November 2021.

The existing provisions in the previous 45 SEPPs were transferred into the new consolidated SEPPs as chapters, without introducing any substantive amendment to the repealed SEPPs other than a renumbering of the old provisions. The SEPP consolidation does not change the legal effect of the repealed SEPPs. Section 30A of the Interpretation Act 1987 applies to the transferred provisions, which means that the transfer of provisions does not affect the operation or meaning of the provisions.

It was originally proposed that the new SEPPs would be aligned with new planning principles that were released last year, but these planning principles were revoked on 14 March 2022.

The following table identifies which new SEPPs now contain the provisions from the former SEPPS.

New Sepps	Former SEPPs
SEPP (Housing) 2021	SEPP (Affordable Rental Housing)SEPP (Housing for Seniors and People with a Disability)SEPP 70 – Affordable HousingSEPP 21 – Caravan ParksSEPP 36 – Manufactured Home Estates
SEPP (Primary Production) 2021	SEPP (Primary Production and Rural Development) 2019Sydney Regional Environmental Plan No. 8 (Central Coast Plateau Areas)
SEPP (Resources and Energy) 2021	SEPP (Mining Petroleum Production and Extractive Industries) 2007Sydney Regional Environmental Plan No. 9 – Extractive Industries (No 2 – 1995)
SEPP (Resilience and Hazards) 2021	SEPP (Coastal Management) 2018SEPP 33 – Hazardous and Offensive DevelopmentSEPP 55 – Remediation of Land
SEPP (Industry and Employment) 2021	SEPP (Western Sydney Employment Area) 2009SEPP 64 – Advertising and Storage
SEPP (Transport and Infrastructure) 2021	SEPP (Infrastructure ) 2007SEPP (Educational Establishments and Childcare Facilities) 2017SEPP (Major Infrastructure Corridors) 2020SEPP (Three Ports) 2013
SEPP (Biodiversity and Conservation) 2021	SEPP (Vegetation in Non-Rural Areas) 2017SEPP (Koala Habitat Protection) 2020SEPP (Koala Habitat Protection) 2021Murray River Regional Environmental Play No 2 – Riverine LandSEPP (Bushland in Urban Areas) 2019SEPP 50 – Canal Estate DevelopmentSEPP (Sydney Drinking Water Catchment) 2011Sydney Regional Environmental Plan 20 – Hawkesbury Nepean River No. 2 1997Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005Greater Metropolitan Regional Environmental Plan No 2 – Georges River CatchmentWillandra Lakes Regional Environmental Plan No 1 – World Heritage Property
SEPP (Planning Systems) 2021	SEPP (State and Regional Development) 2011SEPP (Aboriginal Land) 2019SEPP (Concurrences and Consents) SEPP 2018
SEPP (Precincts – Eastern Harbour City) 2021	SEPP (State Significant Precincts) 2005Darling Harbour Development Plan No 1Sydney Regional Environmental Plan No 26 – City WestSydney Regional Environmental Plan No 16 – Walsh BaySydney Regional Environmental Plan No 33 – Cooks CoveSEPP No 47 – Moore Park Showground
SEPP (Precincts – Central River City) 2021	SEPP (State Significant Precincts) 2005SEPP (Sydney Region Growth Centre) 2006Sydney Regional Environmental Plan 24 – Homebush Bay AreaSEPP (Kurnell Peninsula) 1989
SEPP (Precincts – Western Parkland City) 2021	SEPP (State Significant Precincts) 2005SEPP (Sydney Region Growth Centre) 2006SEPP (Western Sydney Aerotropolis) 2020SEPP 9Penrith Lakes Scheme) 1989Sydney Regional Environmental Plan No 30 – St MarysSEPP (Western Sydney Parklands) 2009
SEPP (Precincts – Regional) 2021	SEPP (State Significant Precincts) 2005 SEPP (Activation Precincts) 2020 SEPP (Kosciuszko National Park – Alpine Resorts) 2007 SEPP (Gosford City Centre) 2018
Draft Design and Place SEPP 2021	SEPP 65 – Design Quality of Residential Apartment DevelopmentSEPP (Building Sustainability Index: BASIX)

NSW – NSW Department of Planning and Environment Proposed Changes to Rezoning Application Process

In December 2021, the NSW Department of Planning and Environment (DPIE) released a discussion paper focussed on potential reform of the regulatory system for spot rezoning of land in New South Wales. Following public comment on the discussion paper, it is expected that a bill will be prepared and introduced into Parliament later this year.

Currently, if a private proponent wishes to submit a rezoning request, the council is required to progress the planning proposal – with the private proponent bearing the costs. However, the private proponent is not considered to be the applicant and has minimal control over the processes and little ability to amend the proposal or appeal a rejection.

According to the DPIE, the process for amending a local environmental plan (LEP) currently takes on average about two years. Planning proposals which involve an LEP amendment will often go twice to a council meeting (before ‘gateway’ and before ‘finalisation’), and twice to the NSW Government (at ‘gateway’ and ‘finalisation’). This can result in a duplication of assessment and delays as bureaucratic processes.

To address these issues, the discussion paper proposes the following key changes to the land rezoning regime

• Introduction of a pre-lodgement scoping stage

Before submitting the rezoning application, proponents would prepare a scoping report and attend a scoping meeting with the relevant rezoning authority. The rezoning authority would then issue site specific study requirements (SSSRs) together with written feedback on the rezoning proposal’s consistency with any applicable strategic planning documents. The SSSRs would identify the technical reports and other material which are needed to accompany the rezoning application.

The SSSRs are intended to replace what is currently known as the gateway determination stage in a manner which nevertheless continues to advance a planning proposal towards a final decision.

The SSSRs are intended to replace what is currently known as the gateway determination stage in a manner which nevertheless continues to advance a planning proposal towards a final decision.

• Entrenchment of statutory time limits for public consultation and decisions by rezoning authorities

Once a rezoning application has been lodged, the rezoning authority would have 7 days to confirm whether the application satisfies the SSRs and, if not, to reject the rezoning proposal.

If it complies, the rezoning application would then be placed on public exhibition.

In a major change to the current system, under the proposed system a proponent would have the right to appeal the rezoning authority’s refusal or ‘deemed refusal’ (i.e., no decision after a prescribed period of time).

While the discussion paper suggests the appeal would be similar to what currently exists for a development application, it looks at two “appeal” options – the NSW Land and Environment Court (which is the forum for development application appeals) and the Independent Planning Commission (which would be a more administrative style “appeal”).

• Categorisation of proposals and related time frames

Each rezoning proposal would be categorised according to the extend of the proposed change, its consistency with applicable strategic plans and its complexity. There will be four categories (Basic, Standard, Complex and Principal LEP) each with their own associated time frames.

• Introduction of a “planning guarantee” for application fees

To encourage compliance with new timeframes and ensure fairer outcomes, under the proposed system a proponent would have the right to a refund of its application fess for a rezoning proposal where a determination of its application is not made within the statutory assessment period (i.e., the “deemed refusal” period).

A rezoning authority would nevertheless still be required to progress the assessment of a rezoning application, even if it has refunded the application fees.

• In the Interim  – a new DPE Guideline

In the interim, and before any change to legislation or regulation, the DPE has also issued a new LEP Making Guideline (Guideline). The Guideline applies to any planning proposal made from 15 December 2021 onwards.

The chief purpose pf the Guideline is to begin implementing the policy direction of the changes proposed by the discussion paper, but without the force of law (that is, the guideline is just that – a guideline compliance with which is not mandatory).

In particular, the Guideline has been changed to include:

• A new way to categorise planning proposals.

As described above, planning proposals will now be categorised. The categories are basic (administrative, housekeeping, and minor matters of local significance), standard (site-specific LEP amendments seeking a change in planning controls), complex (extensive LEP amendments that may not be consistent with the existing strategic framework) or principal LEP (comprehensive LEP amendments progressed by councils).

Councils will select a category for DPE’s approval when submitting a planning proposal for Gateway determination.

• Non mandatory benchmark timeframes

Benchmark timeframes are 46 weeks for basic, 70 weeks for standard, and 88 weeks for a complex proposal or principal LEP.

• Allowing planning proposal amendments after lodgement

As the former policies didn’t explicitly provide for this, some councils didn’t allow them at all. Updating a planning proposal under the Guideline will reset the time before a proponent can seek a review.

• Encouraging pre-lodgement consultation

While not mandatory, DPE recommends that councils and proponents alike seek early input, particularly for complex proposals. At this stage, councils are also encouraged to advise proponents on any local infrastructure needed – with proponents to investigate infrastructure requirements and funding.

NSW – Draft Protection of the Environment Operations (General) Regulation 2022

The Protection of the Environment Operations (General) Regulation 2021 is being updated. A draft regulation has been released by the NSW EPA and is open for comment until 14 April 2022.

The proposed changes are many and varied and include:

• Changing the licence fee structure by requiring applicants to pay an additional licence application fee followed by the yearly administrative fee. The amount of the licence fee is proposed to depend on the complexity of the application. The categories and proposed fees would be:
• Straightforward (highest administrative fee for any activity is less than 50 administrative fee units and the activity is not State significant development (SSD) or State significant infrastructure (SSI) – fee would be $5,143;
• Moderate (highest administrative fee for any activity is less than 135 administrative fee units or more and the activity is SSD or SSI) – fee would be $12232;
• State Significant (highest administrative fee for any activity is 50 administrative fee units or more and the activity is not SSD or SSI) – fee would be $24,742;
• State significant (large) (highest administrative fee for any activity is 135 administrative fee units or more and the activity is SSD or SSI) – fee would be $30,997;
• Critical State significant infrastructure (proposed activity is Critical State significant infrastructure – fee would be $38,503.

• Amending the definition of the scheduled activity of ‘extractive activities’ by removing the reference to the primary purpose of material being for sale. This will mean that all activities that extract more than 30,000 tonnes of extractive materials would require a licence, regardless of whether the material is sold or reused. Cut and fill operations or the excavation of foundations or earthworks would remain excluded. ‘Road construction’ and ‘railway activities’ would still not be required to separately list ‘extractive activities’ as an activity under their licence.

• Introducing a new administrative fee threshold of 135 units (equivalent to $18,765) for larger ‘bird accommodation’ facilities accommodating more than 3,000 tonnes of live weight of chickens. This is an increase from the current maximum of 50 administrative fee units ($6,950).

• Aligning thresholds, terms and definitions for seven industry related waste generation activities. The reference to the ‘annual volume of waste generated’ in determining the fees payable will be replaced with a reference to the ‘volume of waste stored at any one time.’

• Creating two sub-activities within the ‘petroleum products and fuel production’ scheduled activity. Lower risk activities (blending or mixing) would be subject to lower fees and regulatory oversight than higher risk activities (refining, distillation, fermentation, esterification, pyrolysis, cracking, or hydrogenation etc).

• Adding materials to the scheduled activity definition of ‘shipping in bulk’ to include soil, clay, sandstone, gravel, sand, stone and similar substances.

• Indexing  administrative fee units to the CPI or WPI (where appropriate) after 1 July 2023.

• Introducing an obligation on facilities required  to report under the National Pollutant Inventory (NPI) to collect and report on ‘substance usage’ over each year as part of their standard NPI reporting obligations and allowing the EPA to develop and approve alternative emission estimation techniques for emissions reporting under the NPI.

• Clarifying requirements for the testing of PIRMPs. The current post-incident testing requirement means a licensee must test a PIRMP following any incident. This is being interpreted by some licensees as including incidents where the PIRMP did not need to be implemented. The change would require post-incident testing of PIRMPs only to be done after a pollution incident that actually causes or threatens material harm to the environment.

• Prescribing the financial capacity of a regulated party as an additional matter for consideration when assessing whether a financial assurance is justified.

NSW – Plastic Reduction and Circular Economy Act 2021

The Plastic Reduction and Circular Economy Act 2021 (NSW) has been made.

The Act is the latest step to implement the government’s planned phasing out of many single use plastics and to encourage more recycling and better end-of-life product management. It forms part of one of the earliest phases in the NSW Plastics Action Plan and NSW Waste and Sustainable Materials Strategy 2041, both aiming to phase out ‘problematic and unnecessary’ plastics by 2025.

Lightweight plastic bags will be phased out on 1 June 2022, while the phasing out of single-use plastic straws, single-use plastic stirrers, single-used plastic cutlery, single-use plastic cotton buds and expanded polystyrene food service items will begin in November 2022. Other items, like plastic bowls, plastic cups, and non-recyclable fruit stickers, are expected to follow over the next three years.

Some exemptions will be available in certain circumstances; for example, persons and businesses who rely on plastic straws will still be able to order them online.

The Act also contains mechanisms for establishing product stewardship requirements, including in relation to production, re-use, life-cycle responsibility, environmental impact, disposal, and recovery. Those requirements can be established by regulations or by the publication of a notice in the Government Gazette by the Minister.

Brand owners of ‘regulated products’ that are subject to stewardship requirements will be required to maintain those obligatory requirements, in an effort to compel producers to maintain greater responsibility over their plastic products. Fines of up to $440,000 for corporations and $110,000 for individuals per offence (or more for ongoing offences) will apply to non-compliance with stewardship requirements or failing to keep requisite records in relation to those requirements.

There is also a suite of powers and responsibilities conferred upon the NSW EPA in relation to administration, enforcement, the imposition of conditions into ‘action plans’ (if an action plan is required of a producer of a regulated product to set out how a stewardship requirement is to be met), and regulation of the regime.

NSW – Sell & Parker wins appeal re fire safety of waste stockpile plan

Sell & Parker have succeeded in NSW Land and Environment Court proceedings in arguing that its stockpile plan, prepared after a major fire in 2017, was adequate and should be approved.

Background

The proceedings related to Sell & Parker’s waste metal recovery, processing and recycling facility at Kings Park, in North-Western Sydney.

Development consent for the expansion of that facility to increase the processing capacity to 350,000 tpa was granted by the Minister for Planning in 2015. A number of plans were approved as part of that consent, but they did not particularise the location and size of stockpiles on the site.

Following a fire on the site  in April 2017, a series of fire safety orders and modifications of the development consent were then issued and made to improve safety and environmental performance of the site. The latest modification (M)D3) added a new condition of consent – condition B35D, which required that a Final Stockpile Plan be submitted to the satisfaction of the Secretary and Fire and Rescue NSW (FRNSW). In October 2020. The Final Stockpile Plan was submitted to the Secretary and, following the lapsing of the time for its assessment, Sell & Packer appealed against the deemed refusal of that plan.

The Secretary argued that:

• The Final Stockpile Plan was drafted in a way that would allow the site to operate in an uncontrolled manner and to avoid the compliance regime imposed on all other waste facilities;
• The purpose of a stockpile plan goes beyond fire safety, and is require for the proper assessment of access to external doors, movement through the buildings by operational staff and emergency services, and there is sufficient space for waste processing
• The Final Stockpile Plan needed to depict how the site is laid out, how it can be traversed, and how access can be obtained, for the purpose of planning an incident response
• The FRNSW Guideline applied to both the combustible and non-combustible stockpiles on the site and the locations of each combustible and non-combustible stockpile should therefore be shown with the maximum height, type of waste, and dimension depicted.

Sell & Parker  submitted that:

• There was extensive consideration of fire safety matters at the site on numerous occasions when fire safety orders were issued  and the consent modified, which should provide context for and guide the Court’s exercise of its discretion as to whether it should be satisfied with the Final Stockpile Plan
• The purpose of imposing condition B35D was to do no more than reconcile inconsistencies between the MOD 3 site plan and the stockpile plan, both of which formed part of the MOD 3 application
• In seeking to revisit the consideration of fire safety and other aspects when assessing Final Stockpile Plan, the Secretary was attempting to regulate the site unreasonably and impermissibly, contrary to the circumstances in which condition B35D was imposed
• The FRNSW Guideline does not apply to non-combustible stockpiles
• In any event, there is no fire risk associated with the non-combustible stockpiles or with the manner in which the combustible stockpiles are shown on the Final Stockpile Plan.

Sell & Parker successful on all points

The Court agreed with Sell & Parker on all points.

In particular, the Court found that the Secretary’s case was fundamentally founded upon a misapprehension as to the purpose and scope of condition B35D. It was the Court’s conclusion that condition B35D cannot be interpreted so as to allow a deferred assessment of the fire safety issues and was instead imposed to allow Sell & Parker to submit a stockpile plan with final details that are consistent with the MOD 3 site plan.

In any event, the Court also found that there was no basis upon which additional particularisation of any of the stockpiles was required, particularly as it found that the FRNSW Guideline do not apply to non-combustible stockpiles and that there were multiple other fire protection measures in place via other part of the development consent.

It is interesting to note that FRNSW had no objection to the Final Stockpile Plan and were not a party to the proceedings.

NSW -Land and Environment Court finds that incineration of waste amounts to disposal, not processing

Weston Aluminium has not managed to convince the NSW Land and Environment Court that it should not pay waste levy contributions because it is merely processing waste, not disposing of it.

In addition to processing aluminium scrap and spent put linings on its site, Weston Aluminium has had approval since 2018 to incinerate up to 8,000 tonnes of pharmaceutical and illicit drug waste in the site’s aluminium dross recycling plant.

Having received approval to feed these extra wastes into the dross recycling plant, the company applied to the EPA for a variation to its environmental licence.

The EPA amended the licence in August 2019 by adding the scheduled activities of ‘waste disposal (thermal treatment)’.

Then, in January 2020, the EPA wrote to the company saying its new status as a scheduled waste disposal facility meant that levy payments needed to be made in respect of all waste received at the site.

Weston relied on clauses 20(3) and 20(4) of the NSW Waste Regulations to argue that it was exempt from having to make levy payments because it only processed waste at the site, and did not dispose of it.

However, Pepper J of the Land and Environment Court did not agree that incineration did not amount to disposal. Justice Pepper held ‘In my opinion, as a matter of construction, the combustion and incineration of the various forms of waste received at the property by thermal treatment involves the disposal of that waste.’

Justice Pepper found the company was therefore liable to make waste levy payments. Weston Aluminium has lodged an appeal with the Court of Appeal.

NSW – Land and Environment Court awards compensation to dispossessed owners under s56(3) of the Land Acquisition (Just Terms Compensation) Act for first time

Compensation for the acquisition of land by government entities is typically calculated by reference to what a dispossessed owner of land has lost: the market value of the land being acquired, their costs of procuring legal and other expert advice, relocation costs incurred, etc. These ‘heads’ of compensation are set out in s55 of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act). Of prime importance is how one assesses the market value of the land being acquired:

56 Market value

• In this Act –

market value of land at any time means the amount that would have been paid for the land if it had been sold at that time by a willing but not anxious seller to a willing but not anxious buyer, disregarding (for the purpose of determining the amount that would have been paid)-

• Any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired, and
• Any increase in the value of the land caused by the carrying out by the authority of the State, before the land is acquire, of improvements for the public purpose for which the land is to be acquired, and
• Any increase in the value of the land caused by its use in a manner or for a purpose contrary to law.

2017 reforms to the Just Terms Act introduced a new means by which compensation can be claimed based on what the dispossessed owner is required to buy in order to reinstate itself elsewhere, rather than the value of what it is losing. This is achieved through s 56(3) – the ‘reinstatement’ provisions:

• If-
• The land is used for a particular purpose and there is no general market for land used for that purpose, and
• The owner genuinely proposes to continue after the acquisition to use other land for that purpose,

The market value of the land is taken, for the purpose of paying compensation, to be the reasonable cost to the owner of equivalent reinstatement in some other location. That cost is to be reduced by any costs for which compensation is payable for loss attributable to disturbance and by any likely improvement in the owner’s financial position because of the relocation.

The ability to claim compensation on the basis of what it costs a dispossessed owner to be ‘reinstated’ on other land is only available in certain circumstances; first, the land being resumed must be used for a particular purpose for which there is ‘no general market’; and, second, there must be an intention by the dispossessed land owner to continue that former use on other land post-acquisition.

The decision of Justice Pain published on 30 July 2021 in The trustee for Whitcurt Unit Trust v Transport for NSW [2021] NSWLEC 82 (Whitcurt) is the first time in which s 56(3) has been judicially considered. While on the facts a reinstatement claim was rejected by the Court, the decision helpfully surveyed the case law from other jurisdictions which for future claims may offer guidance on how the provision will be applied.

Whitcurt

The Applicant leased land at Tempe owned by Inner West Council and operated a golf driving range from it. The Council owned all the equipment on site prior to Transport for New South Wales (TfNSW) acquiring the land in March 2020 for the Sydney Gateway Project.

The Applicant’s occupation of the site was, by the date of acquisition, pursuant to a holdover lease, terminable on two months’ notice. The Applicant was in the process of seeking to recreate a gold driving range-type facility in Campbelltown, also to be owned by that local Council.

The Applicant made its claim for compensation on three alternative bases including reinstatement.

Ultimately, given the tenuousness of the Applicant’s interest in the acquired land (i.e., the readily terminable lease), the Court determined that compensation was only payable for legal and other experts’ fees, and nothing was allowed by way of reinstatement (or, in the alternative, relocation costs, market value or special value).

The decision serves to illustrate the importance of identifying the nature of the interest in land in acquisition cases – without secure tenure, access to compensation is often significantly diminished (see, eg, Roads and Maritime Services v United Petroleum Pty  Ltd [2019] NSWCA 41, and more recently Olde English Tiles Australia Pty Ltd v Transport for New South Wales [2021] NSWLEC 90).

Her Honour observed that an allowance for significant reinstatement costs (comprised largely of fit-out costs at the proposed new Campbelltown site) would not, in fact, amount to a ‘reinstatement’; what it would produce would be a more secure tenure (a long-term lease with Campbelltown City Council) and a facility full of new equipment. At the existing site, the Applicant had neither. Further, had a reinstatement claim been sustainable, it would need to have been reduced by any improvement in the claimant’s financial position (reflecting the discount mechanism in s 56(3)), and the Court considered that this would have produced a significant reduction given the nature of the costs claimed.

At para [160]-[162’ her Honour also made three obiter observations about s 56(3):

• Unlike relocation costs under s 59(1) which must be “reasonable incurred”, the reinstatement costs under s 56(3) must be reasonable in quantum.
• Gold driving ranges are an example of the kind of land use that has “no general market.”
• Section 56(1), which is the provision under which market value for acquired land is ordinarily assessed, does not take precedence over s 56(3) and does not need to be tested before s 56(3) can be applied.

Reinstatement in other jurisdictions, and its elements

The 2014 ‘Russell Review’ of the Just Terms Act produced a recommendation that a reinstatement provision – something already available under other acquisition legislation in Australia – be incorporated into the just Terms Act in circumstances where the conventional method could not justly compensate a dispossessed owner. Golf courses and churches were cited as examples where this could arise, given the likely absence of a general market for land used for those purposes.

“No general market”

In Trustees of the Australian Workers Union v Townsville City Council [1982] 8 QLCR 195, a union building “designed to meet the peculiar needs” of its user was considered to be the ‘particular purpose’, and the Court held that there was no general ‘demand’ (a term that has been used in a similar way to ‘market’ in other jurisdictions) for such a site.

That level of specificity has been supported elsewhere, such as In Trustees of the Nonentities Society v Kidderminster Borough Council (1971) 22 P&CR 224 where a market for theatres in London was not considered to support the existence of a general market for theatres outside the city. Likewise, in Trustees of the Manchester Homeopathic Clinic v Manchester Corporation (1971) 22 P&CR 241, different types of medical clinics (such as specialists or dental) were distinguished from one another as the Court sought to define the general market into which the Applicant might fit.

Larger reinstatement land?

The reinstatement concept already exists in the Commonwealth Lands Acquisition Act 1989. Although the Commonwealth provision applies to non-commercial uses of land, the Federal Court has accepted that reinstatement land can be larger than the land which it is replacing: Huburtus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth of Australia (1994) 85 LGERA 37.

Under the Just Terms Act (where there is no “non-commercial” land restrictions) reinstatement under s56(3) might have application where the land acquired accommodates an older existing use not in strict compliance with current planning controls (for example, for setbacks and the like). Where such planning controls must be complied with to allow the use to be reinstated, the dispossessed owner may have no other option but to purchase (and seek compensation for the cost of) a larger parcel of land.

Reasonable reinstatement costs

Shipp Bros also highlighted the importance of the ‘reasonableness’ of a decision to reinstate a business – a notion replicated in the requirement that the costs incurred in reinstatement be ‘reasonable’. What is reasonable will often turn on its facts, as exemplified in Hua and Anor v Hurstville City Council [2010] NSWLEC 61, where significant relocation costs were considered appropriate, despite the modest financial performance of the relocating business. That business was a family-owned and operated one, and therefore subject to different considerations to those that might apply to a listed enterprise.

Applying a s 56(3)

Even though the preconditions to the application of s56(3A) were not made out in Whitcurt, Pain J’s decision offers some guidance as to how the Courts are likely to approach claims for reinstatements in future given the application of the principle in other jurisdictions.

Importantly, her Honour rejected the resuming authority’s submission that a claimant can only advance a reinstatement claim if an “orthodox” claim for compensation under s56(1) cannot be made out. Her Honour found that s56(1) does not take precedence over s56(3). Reinstatement is therefore a discrete “channel” through which compensation can be claimed – a potentially significant development for dispossessed owners in unique circumstances who may previously have been undercompensated by an orthodox approach to “market value” under the Just Terms Act.

NSW -Changes to National Parks and Wildlife Act

The National Parks and Wildlife Act 1974 (NSW) has been amended to allow the Minister to create and deal with carbon sequestration rights and biodiversity credits for certain land and to make changes to the provisions in relation to assets of intergenerational significance.

Generation of Carbon Sequestration Rights

A new Part 5A of the National Parks and Wildlife Act enables the Minister to create and deal with carbon sequestration rights in relation to land acquired, reserved, or dedicated under that Act. 

Carbon sequestration rights are property rights defined in the Conveyancing Act 1919 which are used to obtain Australian Carbon Credit Units under the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth). Such credits may be sold, transferred, or surrendered or retired as carbon offsets.

Section 82B entitles the Minister to create carbon benefits from undertaking activities such as, vegetation management, management of feral animals, fire managements, or rehabilitation and revegetation. An important caveat is that the functions under s82B may only be undertaken if the Minister is satisfied that they are consistent with the objects of the National Parks and Wildlife Act. The Minister must also consult with any other governing bodies that may manage and control particular areas such as a state conservation area trust or regional park trust.

Part 5A will allow the management activities in national parks to be counted and used to offset carbon emissions in national carbon markets and will add another income stream to the National Parks and Wildlife Fund. This is a key part of the NSE Government Plan for a goal of net zero emissions by 2050. It is also likely to result in an increase in the amount of carbon credits generally available in the market. The provisions of Part 5A are to be reviewed 2 years after commencement to determine whether the ‘policy objectives’ of the provisions remain valid.

After 30 June, 2022, Local Aboriginal Land Councils will also have the ability to create and deal with carbon sequestration rights relating to lands vested in the Aboriginal Land Council.

Changes to the Assets of Intergenerational Significance Regime

Assets of environmental or cultural intergenerational significance, currently provided for by section 188H of the National Parks and Wildlife Act, will now be provided for in a new Part 12A. There are currently around 184 assets of intergenerational significance that have been identified since the introduction of the regime.  These are generally areas of particularly special importance or value that warrant additional protection such as sites for critically endangered species.

Declarations of specific lands as assets of intergenerational significance will now require publication of a map and a statement of the environmental and cultural values in the Government Gazette. However, any such information may be redacted if the Minister deems that the disclosure of the information may put the area at risk.

Additionally, a new executive liability offence will be created that criminalises interfering with, damaging, harming, or disturbing an environmental or cultural value of declared assets of intergenerational significance under the National Parks and Wildlife Act with maximum penalties of $1,100,000 for a corporation and $550,000 or two years in prison for an individual. Various defences are also provided, including (importantly) the deference that the action was taken for or as part of an Aboriginal cultural practice.

QLD – Waste levy to increase from 1 July 2022

Changes will be made to the waste levy regime in Queensland from 1 July 2022.

A two-speed system will be created, with waste levies increasing more rapidly in the metro zone – made up of the 12 local government areas in South-East Queensland, including Noosa and Toowoomba and more slowly in the regional zone  – made up of the remaining 27 local government areas in the current levy zone.

There will be no changes made to the non-levy zone.

The rationale behind the change is that, while South-East Queensland has greater opportunities for recycling and resource recovery, it also landfills the most waste. The increase in the levy in the South-East region is designed to drive recycling and resource recovery in that region. It will also have an impact on the transport of waste from NSW into Queensland.

From 1 July 2022, all the levy rates in the:

• Metro zone will increase by $10 per tonne, each year, until the general levy rate reaches $145 per tonne on 1 July 2027 – which will be comparable with the rate in NSW – after which they will increase each year in line with the consumer price index; and
• Regional zone will increase in line with the consumer price index each year.

The increased levy will go into a ‘waste and resource recovery package,’ including a $1.1 billion Recycling and Jobs Fund, that will help build infrastructure to recover more resources from waste and continue to ensure households are not directly impacted by the waste levy.

Victoria – Wind farm owner ordered to pay aggravated damages for ‘substantial and unreasonable’ noise

The operator of the Bald Hills wind farm in Gippsland, Victoria has been ordered to pay damages, including aggravated damages, to two neighbouring landowners in relation to the noise generated by the wind turbines on the Bald Hills wind farm.

The Bald Hills wind farm was controversial from the time it was first proposed in the early 2000s. A planning permit was granted for the wind farm by the Minister in 2004, following a recommendation by a Planning Panel that a permit be granted.

The permit allowed the construction of up to 110 metres height each and included detailed conditions concerning acoustic amenity. The permit prescribed noise conditions, which applied the noise limits and methodology set out in the New Zealand Standard 6808:1998 – Acoustics – the Assessment and Measurement of Sound from Wind Turbine Generators (NZ Standard).

The wind farm was fully operational by 2015. Noise complaints commenced soon after.

These proceedings were commenced in 2020 by Mr Uren, Mr Zakula and ten of their neighbours. The ten neighbours resolved their claims against the wind farm before the trial and were removed as parties.

The Court found that:

• Noise from the turbines on the wind farm has caused a substantial interference with both plaintiffs’ enjoyment of their land at night – specifically, their ability to sleep undisturbed – but not during the day;
• The wind farm had not established that the sound received at either Mr Uren’s house or Mr Zakula’s house complied with the noise conditions in the permit at any time as the noise assessments conducted by its experts were flawed;
• Even if the wind farm had established that the noise conditions in the permit had been complied with, this would not necessarily have established that the noise that disturbed Mr Uren’s and Mr Zakula’s sleep was reasonable as the NZ Standard is not directed to intermittent loud noise from wind turbines, and does not provide a way of assessing whether a wind farm produces unreasonably annoying noise in certain weather conditions, or on a particular night;
• While the wind farm investigated and responded to Mr Uren and Mr Zakula’s numerous complaints, it did not take any remedial action to reduce the noise from wind turbines received at either property, even though there were additional reasonable measures that it could have taken; and
• The noise was unreasonable and amounted to a common law nuisance.

As a result, the Court granted an injunction restraining Bald Hills from continuing to permit noise from wind turbines on the windfarm to cause a nuisance at night and requiring it to take necessary measures to abate the nuisance. The wind farm has three months to address the issue before the injunction takes effect.

The Court also found that Bald Hills’ conduct towards both Mr Uren and Mr Zakula was high-handed and that the manner in which Bald Hills dealt with the plaintiffs’ reasonable and legitimate complaints of noise, over many years, at least doubled the impact of the loss of amenity each of them suffered at their homes.

Mr Uren was accordingly awarded $46,000 for past loss of amenity, and $46,000 for aggravated damages. Mr Zakula was awarded $84,000 for past loss of amenity and $84,000 for aggravated damages.

It will be interesting to see the approach that the Victorian EPA will take to the regulation of noise from wind farms in light of the finding that actionable nuisance can still occur even when permit conditions have been complied with and given wind farms must now also comply with the General Environmental Duty.

International – United Nations Human Rights Council recognises the human right to a safe, clean, healthy and sustainable environment

On 8 October 2021, the UN Human Rights Council (HRC) recognised the human right to a safe, clean, healthy and sustainable environment by adopting Resolution 48/13. The Resolution recognises that a healthy environment is fundamental to the enjoyment of all human rights and calls upon States to adopt their own domestic policies that enshrine such a right.

What is the right to a healthy environment?

In addition to the right to a healthy environment itself, the right to a healthy environment encompasses substantive rights including the right to life, health, food, water, housing and culture.

It also includes procedural rights, such as the right to seek, receive and impart information about government affairs and decision making, to participate in decision-making and t o have access to effective remedies.

What are the legal consequences of the passing of the Resolution?

Over 100 countries have recognised the right to a healthy environment in their domestic legislation. In some of these countries, the right to a healthy environment has provided grounds for climate-change litigation. In Colombia in 2018, the Supreme Court held that the deforestation of the Amazon is a violation of this right and will require the government to create protection mechanisms (Future Generations v Ministry of the Environment and Others).

Further, the Nepalese Supreme Court ordered the Nepalese government to enact legislation intended to mitigate and adapt to the threats posed by climate change, including through the reduction of fossil fuel consumption and investment in low carbon technologies (Shrestha v Office of the Prime Minister et al). In addition, the Nepalese government was ordered to create a system of compensation for victims of the climate crisis.

However, as the Australian Federal government has yet to ratify the right to a safe, clean, health and sustainable environment is it unlikely that the HRC’s Resolution will manifest as an enforceable legal right in Australia.

The passing of the Resolution does however provide an opportunity for State governments in Australia with existing human rights legislation such as the ACT, Victoria and Queensland to recognise such a right in their existing legislation, which may lead to State-specific climate legislation.

This resolution reflects the World Health Organisation’s estimates that 13.7 million deaths-per-year globally (24.3% of total deaths) are due to environmental risks such as air pollution and chemical exposure.

NSW Recent Fines and Prosecutions – a selection

• October 2021: The NSW EPA fined Aurora Environmental Consulting Pty Ltd $8000 after an EPA officer discovered a stockpile of gravel waste at a Port Kembla business in February that had been allegedly falsely classified. The waste had been classified by Aurora as construction and demolition material, when it should have been declared as waste.
• November 2021: Whitehaven Coal’s Tarrawonga Coal Mine has been fined and ordered to do an environmental audit after it allegedly discharged dirty water from a failed sediment dam at its mine near Boggabri, in north-western NSW. The NSW EPA has fined the mine $30,000 after its third alleged discharge of dirty water since 2020. The mine is also alleged to have exceeded discharge limits in the lead up to a major storm with heavy rainfall in March this year.
• November 2021: Electricity generator AGL Macquarie Pty Limited has been fined after Liddell Power Station in the Hunter Valley allegedly exceeded its permitted air emissions. The NSW EPA has issued AGL with a $15,000 Penalty Notice for allegedly contravening its Environment Protection Licence under the Protection of the Environment Operations Act 1997.
• November 2021: Whitehaven Coal’s subsidiary Maules Creek Coal Pty Ltd has been fined $187,000.00 and ordered  to publish a notice in relevant newspapers, and on the Whitehaven Coal website for the offence of taking water from a water source without an access licence contrary to s 60A(2) of the Water Management Act 2000 (NSW). The offence related to the capture of 1,000ML of clean surface water between 1 July 2016 and 30 June 2019 at the Maules Creek Coal Mine without an access licence, causing harm to a downstream creek.
• November 2021: A man was convicted and received a fine of $6,000 for not providing records requested during an EPA investigation into the alleged disposal of building and demolition waste, including potential asbestos waste, at a property in Fullerton.
• March 2022:  A marine contraction company and its sole director and shareholder were fined $370,000 and $204,000 respectively, plus approx. $157,000 in investigation and clean costs, plus the prosecutor’s legal costs in relation to the sinking of a barge in Pittwater in 2019. The prosecutor was Transport for NSW.
• March 2022: A senior employee with a demolition company was fined $270,000 for the offence of knowingly supplying false or misleading information about waste deposited at two landfills. The defendant had misrepresented the source site of asbestos soils deposited at two landfills. He was also ordered to pay the EPA’s costs.
• March 2022: Tropic Asphalts Pt Ltd was fined $540,000 for producing an average of 450 tonnes per day of asphalt at a facility limited to 150 tonnes per day under its development consent. It was also fined $60,000 for exceeding the condition relating to the daily truck movements. The prosecutor was Snowy Monaro Regional Council.
• March 2022: Whitehaven Coal’s subsidiary Maules Creek Coal Pty Ltd has been ordered to pay $158,750 to NSW’s Environmental Trust after it polluted an ephemeral creek near its open-cut coal mine. The company pleaded guilty to three water pollution offences resulting from a failure to adequately manage sediment and erosion controls and a failure to prevent expanded polystyrene beads used in the preparation of explosives from discharging into a creek. The company was also ordered to pay the EPA’s costs of approx. $300,000.

Victoria Recent Fines and Prosecutions – a selection

• September 2021: The Victorian EPA fined paint and coatings manufacturer Azko Nobel $8261 for breaching a remedial notice to keep noise from its plant at Sunshine North within limits for the area. The company received an EPA Pollution Abatement Notice (PAN) in December 2020, requiring it to modify or install controls on its activities and processes by 26 February this year to reduce noise, but the company failed to comply.’
• September 2021: The Victorian EPA fined a Traralgon company more than $8,000 for keeping stockpiles of green waste that were too large and too close together.
• September 2021: The Victorian EPA fined a concrete batching plant $8,261 after finding concrete slurry escaping its premises.
• October 2021: The Victorian EPA fined Recycal Pty Ltd $17,428 for failing to report on its progress in rectifying the situation.

Queensland Recent Fines and Prosecutions – a selection

• October 2021: The QLD Department of Environment and Since (DES) has issued a Direction Notice to a landholder following the discovery of a large amount of waste disposed of on a property at Wyalla, west of Gympie. It was alleged that 5000-8000 tonnes of waste had been disposed of on the property. A fine was not issued as the landholder had only recently purchased the land and did not commit the offence.
• October 2021: A Kilkivan landholder was issued with a direction notice requiring removal of construction and demolition waste from a property and disposal at a facility licenced to accept the waste. The landholder was also issued with a $2757 penalty infringement notice for the unlawful disposal of waste.

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

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