Planning & Environment Update – 30 June 2021

Welcome to the new planning and environment bulletin. These bulletins aim to provide an overview of recent developments, proposal, legislative amendments and planning scheme updates.

If you have any queries or would like further information regarding anything you read in our bulletins, please contact:

Anthony Spence SC
Principal
M: 0400 545 503
E: aspence@pageseager.com.au

Sarah Wilson
Special Counsel
M: 0428 102 712
E: swilson@pageseager.com.au

 

Planning Law

Tasmanian Planning Scheme

The Tasmanian Planning Scheme (TPS) is now operational in the following municipal areas:

  • Burnie
  • Brighton
  • Circular Head
  • Devonport
  • Meander Valley
  • West Coast

The Sorell draft Local Provisions Schedule (LPS) is currently on public exhibition, ending on 16 August 2021. Representation should be made to the Sorell Council during this exhibition period.  More information can be found here.

Land Use Planning and Approvals Amendment (Tasmanian Planning Scheme Modification) Bill 2020

The Land Use Planning and Approvals Amendment (Tasmanian Planning Scheme Modification) Bill 2020 has been prepared to assist with implementation of the Tasmanian Planning Scheme across Tasmania.

The Bill includes the following amendments to the Land Use Planning and Approvals Act 1993:

  • improved processes for making amendments to the State Planning Provisions in the Tasmanian Planning Scheme to ensure they remain efficient and responsive to planning issues;
  • improved processes for finalising Local Provisions Schedules and the implementation of the Tasmanian Planning Scheme across the State;
  • a fairer process for determining development applications during the transition to the Tasmanian Planning Scheme, meaning that a development application is assessed against the planning requirements at the time of lodgement, instead of the date of the decision; and
  • allowing for the early implementation of parts of the State Planning Provisions through interim planning schemes without the need for costly and time-consuming re-assessment.

The Bill has been tabled in the House of Assembly and the Legislative Council. The draft Bill is available here.

Projects / Proposals

Kunanyi / Mount Wellington Cable Car Proposal

The public notification period for the Mount Wellington Cableway Company’s planning application for the construction of a cable car and associated infrastructure has now closed.

The Hobart City Council received more than 7800 representations in regard to the proposal. These representations are now being reviewed by the planning authority.

The Council will consider the planning application at a special Council meeting on 27 July 2021. Registration for deputations at that meeting close on 7 July 2021. More information is available here.

Recent Cases / Decisions

Boland V Clarence City Council [2021] TASFC 5

This was an appeal to the Full Court of the Supreme Court of Tasmania and the decision was handed down on 29 March 2021.

This is the latest decision in respect of what is colloquially known as the “Henry Design principle”. Specifically, the appeal concerned the interpretation and operation of the Clarence Interim Planning Scheme 2015 and whether the Resource Management and Appeal Tribunal was bound to disregard the ‘acceptable solution’ when assessing the corresponding performance criteria.

The Court held that the decision maker can have regard to the extent of compliance with an acceptable solution when considering a corresponding performance criterion. The Court also noted that the weight to be given to compliance with the acceptable solution will vary from case to case.

This, in effect, does away with the Henry Design principle.

Read our earlier article on the Henry Design principle here.

Australian Conservation Foundation Incorporated V Minister for the Environment [2021] FCA 550

The Australian Conservation Foundation challenged the Minister for the Environment’s decision not to apply the water trigger controlling provisions under the EPBC Act to its assessment of Adani’s North Galilee water Scheme.

These controlling provisions require a person taking a certain ‘action’ to refer that action to the Minister for assessment of the water resource impacts of large coal mining and coal seam gas development proposals.

The Federal Court held that the Minister had fallen into legal error as the water trigger controlling provisions should apply to an action that is ‘so closely associated with coal mining as to be integral to it’, and not just activities which form part of the direct physical process of extracting coal.

From this decision it appears the Courts will apply the water trigger controlling provisions more broadly to actions that supply an input to such operations, and not just activities that form part of the extraction process.

The “water trigger” is not usually a consideration for projects in Tasmania, but the decision may be relevant to the application of other “triggers” under the EPBC Act.

Sharma V Minister For the Environment [2021] FCA 560

In Sharma v Minister for the Environment [2021] FCA 560 the Federal Court held that the Minister for the Environment owned a novel duty of care to Australian children in the exercise of powers under the EPBC Act when deciding whether to approve a coal mine extension.

There is no specific “climate change trigger” in the EPBC Act. The relatively consistent line of legal authority is that the Minister is not required to consider climate change impacts of projects when making decisions under the EPBC Act. This decision, however, is likely to have consequences for environmental impact assessment and approval of projects under the EPBC Act. Arguably, it may even extend to other similar regimes. Proponents and consultants should be mindful of this in preparing environmental impact documentation.

VicForests V Friends Of Leadbeater’s Possum Inc (No 2) [2021] FCAFC 92

This decision of the Full Court of the Federal Court examined the effect of forestry operations by VicForests on two native species, the Great Glider and the Leadbeater’s Possum. It was argued that certain operations failed to comply with the Victorian Code of Practice, a requirement under the Regional Forest Agreement, and therefore, the forestry operation required assessment under the EPBC Act. The Regional Forest Agreement is an alternative regulatory tool under the EPBC Act to project assessment.

The Court held that logging companies do not lose their “exemption” from the EPBC Act assessment process by breaking state laws governing its logging operations.

A similar regime applies in Tasmania where much of the forestry operations are undertaken in accordance with the Tasmanian Regional Forest Agreement.

Bob Brown Foundation Inc. V Commonwealth Of Australia & Ors [2021] Hcasl 125 (24 June 2021)

This was a special leave application to the High Court of Australia against a decision of the Full Court of the Federal Court. The High Court dismissed the application by the Bob Brown Foundation (BBF) on the basis that it lacked sufficient prospects of success to warrant a grant of special leave.

The decision of the Full Court related to an application by the BBF to challenge the legality of native forest logging in Tasmania. The BBF claimed the operations are a breach of the EPBC Act.

Once again, the Regional Forest Agreement has withstood further legal challenge.

Legislative Amendments

The EPBC Act

The EPBC Act has been subject to numerous reviews and inquiries since its inception over 20 years ago. The Commonwealth government has outlined proposed amendments to the Act and a timeline for the amendments to be implemented.

– Samuel’s Review

The Commonwealth Government has now released its formal response to Professor Graeme Samuel’s Independent Review of the Commonwealth Environment Protection and Biodiversity Act 1999. The Final Report was issued in October 2020.

In June 2021, the Australian Government prepared a pathway document setting out the Government’s initial reforms, aligned with the central areas for improvement recommended by the Independent Review of the EPBC Act − A pathway for reforming national environmental law | Department of Agriculture, Water and the Environment

A timeline document has also been prepared which outlines the staged approach to amendments − Proposed Timeline for EPBC Act reforms | Department of Agriculture, Water and the Environment

The timeline includes the first approvals bilateral by the end of 2021, multiple potential amendments bills and a pathway for overhaul of the EPBC Act to be released in 2024.

– Environment Protection And Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021

The Bill proposes to amend the EPBC Act providing for the creation and implementation of the National Environmental Standards (NES), and the creation of a new statutory Environment Assurance Commissioner. It supplements and supports the Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (as below).

The Standards and Assurance Bill outlines a framework for making, varying, revoking and applying the NES.

– Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020

The Bill proposes to amend the EPBC Act to expand and clarify provisions which allow the Commonwealth to delegate environmental approval powers to the states and territories through bilateral agreements.

The Bill purportedly seeks to amend the Act to ensure ‘approval bilateral agreements’ made between the Commonwealth and states and territories ‘are underpinned by national environmental standards, supported by strong assurance and oversight mechanisms’.

The Environment and Communications Legislation Committee issued a report in June 2021. The report can be accessed here.

General Biosecurity Duty (GBD)

The Biosecurity Act 2019 came into effect on 31 March 2021.

Amongst other things, this Act introduces a new legal obligation known as the General Biosecurity Duty (GBD). The GBD operates as a statutory “duty of care” in respect to biosecurity. It requires that a person, including all levels of Government, individuals, and private corporate entities, have to take all reasonable and practical measures to prevent, eliminate, or minimise biosecurity risks.

Under the GBD, any person dealing with plants or animals (or their derived products) who knows, or reasonably knows, or reasonably ought to know, that a biosecurity risk is posed, or is likely to be posed, has a legal duty to ensure that the risk is prevented, eliminated or minimised so far as reasonably practicable.

This is similar to the General Environmental Duty (GED) under the Environmental Management and Pollution Control Act 1994.

Policy Amendments

Tourism Master Plan for the Tasmanian Wilderness World Heritage Area

On 1 June 2021, the Tasmanian Wilderness World Heritage Area (TWWHA) Tourism Master Plan (TMP) was released after community consultation. Parks Minister Jacquie Petrusma, said the TMP included three “key priorities”:

  • Ensuring Tasmanian Aboriginal people’s direct involvement in decision making.
  • An air access policy for the TWWHA.
  • A master plan for Mount Field National Park.

The TMP provides guidance and policy direction for management of tourism and related recreation into the future including how future proposal within the Wilderness World Heritage Area will be assessed. More information can be found here.

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