A recent decision of the Full Court of Tasmania considers when projects will need to undergo environmental assessment.
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Following the recent decision of the Full Court of the Supreme Court of Tasmania in Sultan Holdings Pty Ltd v John Fuglsang Developments Pty Ltd  TASFC 14, the need to pay close attention to the component activities proposed as part of a development has been determined.
On 22 December 2017, the Full Court of the Supreme Court of Tasmania handed down a decision determining that a project may be classified as a ‘Level 2 activity’ even when the activity in question is only a component of a larger development which would not otherwise require environmental assessment under the Environmental Management and Pollution Control Act 1994 (EMPCA). This decision demonstrates the need to consider each individual element of a project rather than relying on the overall use or development category.
The Full Court decision overturned two Resource Management and Planning Appeal Tribunal decisions and a decision of the Supreme Court. In this decision, the Full Court found that excavation works required as part of the construction phase of a development must be referred to the Board of the Environment Protection Authority (EPA) for environmental assessment pursuant to s.25 of EMPCA.
The proposal considered in this decision was for a “mixed use development” involving the construction of a multi-level building and 6 levels of underground car parking at Montpelier Retreat in Salamanca, Hobart. The well-known site has long been earmarked for redevelopment. The decision centred on the likely impacts from the construction of the new underground carpark which required substantial excavation of an estimated 35,000-40,000 cubic metres of dolerite (hard rock) within metres of the heart of Salamanca.
While this decision is crucial for developments that involve excavation works, it also has wide-ranging implications for development assessment in Tasmania.
When must a project be referred to the Environment Protection Authority (EPA)?
Generally speaking, if a proposal involves a ‘Level 2’ activity, (meaning any activity listed in Schedule 2 of EMPCA), then the Council must refer it to the Board of EPA for assessment pursuant to s.25 of EMPCA.
Schedule 2 of EMPCA sets out the various Level 2 activities. Relevantly to this decision, Clause 5 of Schedule 2 titled “Extractive Industries” includes:
(a) Quarries: the extraction of any rock or gravel and producing 5 000 cubic metres or more of rock or gravel per year.
The proponent argued that the excavation works required to complete construction of the carpark were only incidental to the development and did not fall within the meaning of a “quarry”. The Full Court however held that the development did fall within the Schedule 2, Clause 5(a) and ordered that the application be referred to the EPA.
In reaching its findings, the Full Court relied on the intent and purpose of EMPCA and observed:
“It would be contrary to the intent of the legislation to hold that an activity that is specified in Sch 2 should necessarily lose that character because it only forms part of a greater development, or is not the main purpose of the development, in respect of which the application has been made.”
What are the consequences of this decision?
The key consequences are:
- Developers and planning authorities should have regard to the descriptions of the Level 2 activities contained in Schedule 2 of EMPCA before submitting or approving an application for a planning permit.
- Just because a development application is not for a particular Level 2 activity in the ordinary meaning of the activity (e.g. “quarry” or “wind farm”), doesn’t mean that the development will not qualify as a Level 2 activity based on the works or activities that are proposed.
What should I do as a result of this decision?
Project managers, consultants, proponents and planning authorities should always consider the activities proposed as part of the development from commencement of the construction phase and throughout the operation or life of the development.
Failing to identify Level 2 activities at an early stage could have significant time and cost implications and open potential avenues for third party appeals or legal challenges.
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Published: 9 February 2018