The environmental law handbook : planning and land use in NSW [Sixth edition.] 9780455236124, 0455236127

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Twenty-three specialists in environmental law share the writing, building on the work of previous editions, and working under the editorship of Dr Peter Williams from the Faculty of the Built Environment at the University of New South Wales. These barristers, solicitors, professors, academics and policy makers apply their wealth of practical experience and knowledge to offer a clear account of the law applying to environmental planning and protection in NSW. Those familiar with earlier editions will find that the book has been heavily reorganised and rewritten, and redesigned for easier location and use of content. New content includes: New chapter on climate change and energy. Extensive revision of pollution law with inclusion of significant new and updated material following a range of statutory amendments and new case law. Extensively revised discussion on forestry and plantations, agriculture, water supply and catchment management regimes. Major rework of treatment of land use planning, development and biodiversity. Thorough updating for judicial interpretation and legislative change. A handbook for practising lawyers and for students, the careful balance of clarification and detail also makes the text more widely useful. Planners, engineers and environmental scientists, as well as those involved in environmental or community causes and who seek a good grasp of the legal responsibilities of those overseeing a complex network of rights and regulations, will find The Environmental Law Handbook a valuable resource. Contents: The structure and scope of environmental law

Agriculture

Building blocks of environmental law

Biodiversity

Land use planning

Forests and plantations

Crown land and protected areas

Coastal and riverside land

Development NSW environmental assessment

Water supply

Commonwealth environmental assessment and approval

Catchment management Heritage conservation Mining

Local government

Fisheries and aquatic e.cosystems

Pollution control and waste disposal

Aboriginal land and heritage in NSW

Climate change and energy

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IS BN: 978-0-455-236117

© 2016 Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 For further information visit: www.thomsonreuters.com.au Proudly printed in Australia

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9 780455 236117

E ~RS

ENVIRONMENTAL LAW HANDBOOK 6th Edition

Edited by Peter Williams

Thomson Reuters (Professional) Australia Limited 19 Harris Street Pyrmont NSW 2009 Tel: (02) 8587 7000 Fax: (02) 8587 7100 [email protected] www.thomsonreuters.com.au For all customer inquiries please ring 1300 304 195 (for calls within Australia only)

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The Environmental Law

Handbook Planning and Land Use in NSW

Edited by

Peter Williams Faculty of the Built Environment University of New South Wales

SIXTH EDITION

THOMSON REUTERS 2016

Published in Sydney by

Preface

Thomson Reuters (Professional) Australia LimitedABN 64 058 914 668 19 Harris Street, Pyrmont, NSW First edition 1988 Second edition 1993 Third edition 1999 Fourth edition 2006 Fifth edition 2011 This edition 2016 The Cataloguing-in-Publication entry is available from the National Library of Australia 9780 455 236 11 7 © 2016 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. All legislative material herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. The Copyright Act 1968 permits certain reproduction and publication of Commonwealth legislation. In particular, s 182A of the Act enables a complete copy to be made by or on behalf of a particular person. For reproduction or publication beyond that permitted by the Act, permission should be sought in writing. Requests should be submitted online at www.ag.gov.au/cca, faxed to [02) 6250 5989 or mailed to Commonwealth Copyright Administration, Attorney-General's Department, Robert Garran Offices, National Circuit, Barton ACT 2600. Product Developer: Karen Knowles Publisher: Robert Wilson Editor: Julie Pak Printed by Ligare Pty Ltd, Riverwood, NSW

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Commentary on The Environmental Law Handbook must commence with acknowledgment of the many years of dedicated contribution and service of David Farrier, Emeritus Professor of Law at the University of Wollongong. David has been the heart and soul of this book, stretching back before publication of the first edition in 1988. Having now relinquished the editing of this book to lesser hands, I feel it would be David's wish that an account of the history, the lineage of this book, not be lost. For this reason parts of the Preface to the fifth edition of the book, which outlines its history, remains intact here. This is a book with a long history. In 1981-82, the NSW Department of Environment and Planning gave grants under the National Estate Program to the National Parks Association and the recently formed Environmental Law Association of New South Wales for the development of a Citizens' Guide to the Protection of the Environment. The carriage of the book was undertaken by the Community Liaison Committee of the Environmental Law Association. Those involved with the early project believed that there were obligations on people working in the field of environmental law to help demystify the legal process and make it more accessible to the general public. The Committee found itself faced with an enormous research task, especially as many of the areas to be covered had had little research done on them. A great deal of useful background material was produced, but David Farrier eventually took over the research and writing of what was to become The Environmental Law Handbook in 1984. The first edition under his authorship appeared in 1988, and the second in 1993. By the time of the third edition in 1999, he was happy to share the updating and writing with three other authors: Rosemary Lyster, Linda Pearson and Zada Lipman, with Rosemary Lyster undertaking the bulk of the revision. The fourth edition, which appeared in 2006, was based on an even more extensive collaboration than the third. NSW environmental legislation was becoming increasingly complex, with a growing number of judicial decisions elaborating on the bare bones of legislation. In light of this, the only option was to draw on specialist skills, and to assign the revision and writing of particular chapters to authors with particular expertise. In addition the book was expanded to include much fuller coverage of particular areas (forestry, land rights arid native title, local government and catchment management), and a brand new chapter on fisheries management. As a result, this edition, edited by David Farrier and the Hon Paul Stein QC AM, was based on major contributions from over twenty authors, drawn from both academia and the practicing legal profession, and support from others. This approach was again taken in 2011 with the fifth edition. This edition involved the participation of twenty authors, effectively coordinated by Robert Wilson of Thomson Reuters. While some were new, many continued their involvement from the fourth edition. A new chapter on energy was added and closer attention was paid to issues of climate change in other chapters. In addition chapters were better integrated through fuller cross-referencing and removal of duplication. The current edition continues the approach adopted in the fourth and fifth editions. As the complexity of environmental law has grown, so has the number of specialist authors required for this edition. Thankfully, coordination of the twenty-three authors was commendably handled by Karen Knowles, and the detailed editing of their contributions expeditiously completed by Julie Pak, of Thomson Reuters. As a result the same rigorous and professional management and editing process employed in the fifth edition has been maintained.

. The Environmental Law Handbook Vl

As before, while the patience of chapter authors has undoubtedly been tested, they have been wonderfully responsive and supportive. The dedication of what are essentially a group of volunteers, all experts in their field, has been quite exceptional. They have continued the legacy of The Environmental Law Handbook, making a lasting contribution to the propagation and development of environmental law in NSW, ensuring that it is not the exclusive preserve of legal practitioners. At the same time, the sixth edition builds on the work of previous editions, and the current editor and authors are deeply indebted to those who have worked on the book in the past. While updating the law is a time-consuming and painstaking exercise, it has been made very much easier by the fact that we have had firm foundations to build on. We acknowledge the continuing contribution of previous authors. Once again environmental law as it applies in NSW has continued to grow apace. This development and change shows no sign of relenting. Literally days prior to this book going to print, new legislation was being introduced or in the pipeline. In mid-November 2015, the New South Wales Parliament passed the Greater Sydney Commission Act 2015, though at time of writing this legislation had not yet commenced. This will have significant implications on strategic planning and to a slightly lesser extent on development assessment, not just in Sydney, but quite possibly other areas in the State. Further changes in the form of the NSW Coastal Reforms and the Biodiversity Legislation Review for example, are in the wind. Reflecting the growth in environmental law, a new Chapter 10, Climate change and energy, has been added, and climate change has been paid closer attention in a number of other chapters. While the issue of climate change mitigation and adaptation is pervasive and the law which bears on it cannot be contained within a neat category of climate change law, it clearly needed specific treatment in its own chapter. In addition several chapters have been significantly reorganised and rewritten to make material more accessible, in particular Chapters 14 (Coastal and riverside land) and Chapter 3 (Land use planning). All chapters have been revised to take account of recent departmental restructuring which has caused shifts in administrative responsibilities and changes to the law. In the case of a number of chapters this has involved substantial rewriting. Chapter 9 (Pollution) has seen the inclusion of significant new and updated material caused by a range of statutory amendments and new case law. Reforms related to natural resources and water in the form the creation of Local Land Services, the abolition of catchment management authorities and the Sydney Catchment Authority, and the establishment of Water NSW had significant implications for a number of chapters, including Chapter 11 (Agriculture), Chapter 15 (Water supply) and Chapter 16 (Catchment management). As David Farrier noted in his Preface to the fifth edition, the book is gradually creeping beyond its origins in NSW law relating to planning and land use. Incorporation of Commonwealth legislation and case law, as it impacts on NSW, has become essential in order to give a complete picture of environmental law in this State. So, for example, chapters such as Chapter 4 (Crown land protected areas), 12 (Biodiversity), 13 (Forests law), 14 (Coastal and riverside land) and 19 (Fisheries and aquatic ecosystems) include significant sections on relevant Commonwealth law. Law relating to planning and land use in NSW however remains the books central focus. Land use is, in essence what most terrestrial environmental law is all about. Even those areas of law that appear to focus on the use of air and water are intimately concerned with the planning and regulation of land use. However, the Environmental Planning and Assessment Act 1979, the legislation that deals with environmental planning and development control, is only the tip of the iceberg when it comes to the planning and regulation of land use. This notion of the breadth of environmental law has sought to be captured at the beginning of Chapter 1 (The structure and scope of environmental law). The interrelationships between the processes set up under this legislation, on the one hand, and processes in other legislation relating to the use of land and water, are complex. However, they are a sad inevitability in

Preface

a world of multiple government departments with overlapping interests in environmental management, each with a deep-seated need to have its 'own''legislation. This book is the only one to contain a detailed treatment of these interrelationships. This edition of the book will hopefully continue to be a valuable jumping-off point for practising lawyers and law students. At the same time, it aspires to make the detail available in a form that is accessible to those with no specialist legal training. The book attempts to make the law accessible while not shying away from its complexity. For those involved in environmental or community groups, the book is not merely background reading but is designed to answer questions such as:

•

What procedures do government decision-makers have to follow before reaching a decision?

• What powers do particular government bodies have to prevent an environmentally harmful activity •

from proceeding? What rights do I have in this context?

For those public officials, such as planners, engineers and environmental scientists, who actually make decisions or exercise powers within legal frameworks, the book offers an opportunity to see their own particular powers and responsibilities within a broader and more complex whole. It may also assist in law reform by pointing out where the law is inadequate, or unclear. As students from a wide range of disciplines also use the book, an extensive overview of environmental law is provided in Chapters 1 and 2. The authors and editor hope that the book, with its detailed treatment of environmental law in NSW, will continue to provide a more detailed companion to other environmental law texts. I concur with David Farrier's observation in the fifth edition that environmental law in NSW is far more complicated than it needs to be. It consists of layers that have been built on top of each other, starting around the beginning of last century. The early layers dealt with different resources segmentally, in different pieces of legislation. Beginning in 1979 with the Environmental Planning and Assessment Act, we have seen attempts to integrate these diverse streams into a coherent whole. But the promise of this legislation has been cruelly spoilt by NSW governments which have frequently found procedures in legislation which they themselves put through the NSW Parliament to be inconvenient in practice. As a result, it has been amended on a piecemeal, largely unprincipled basis as the need has been perceived to exist. A consistent theme has been the watering down of provisions designed to give environmental protection and conservation a substantial status in government decision-making processes, provisions allowing public participation in decision-making processes and provisions giving objectors to development access to the courts. In essence, the objective has been to facilitate further development. Much of this was evident in the ill-fated Planning Bill 2013. Environmental law in NSW therefore, unlike many other fields of law, has been fraught with unending statutory change. The promise of a once pristine Environmental Planning and Assessment Act has been lost, overwhelmed by the myriad of reforms that have occurred since its commencement in 1980. For many long-suffering practitioners and participants, the NSW planning system has for some years been plagued by 'reform fatigue'. In some instances reforms are introduced to try to cover over the adverse consequences of earlier reforms. Unfortunately the pace of reform - essential or otherwise - is showing no sign of abating, as alluded to earlier in this Preface. As David Farrier stated in concluding his Preface to the last edition, I

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The Environmental Law Handbook

Vlll

would like to thank all of those who have been involved in capturing the version of the environmental law that exists at the time of writing.

Peter Williams December 2015

Using this book While every effort has been made to ensure that the information in this book is as up to date and accurate as possible, readers must seek detailed expert advice before acting upon it. Unlike traditional areas of law such as contract and property law, environmental law is constantly shifting as Parliaments strive to address through new and amending legislation ever-changing perspectives on environmental issues and their significance while pursuing developmental imperatives. The precise limits of environmental law are also contested, and as readers move away from its central concerns, they should look beyond this book. The Environmental Law Handbook is intended as a guide. Although it contains a very detailed discussion of some areas, particularly NSW land use law, it should not be used as a substitute for legal advice. The authors and publisher accept no responsibility for any loss or damage caused as a result of any information contained in, or omitted from the book. Each author has striven hard to summarise New South Wales legislation as it existed in late 2015. There is one significant qualification to this. On 12 November 2015 the NSW Parliament passed the Greater Sydney Commission Act 2015, which received assent on 19 November 2015. This was enacted just as the book was about to go to Press, although at the time of writing it had still not commenced. The Greater Sydney Commission Act, when it comes into force, will herald a number of changes, the most significant being the creation of the Greater Sydney Commission which will take on a number of planning and development assessment responsibilities, and the insertion of a new Part 3B - Strategic Planning, into the

Environmental Planning and Assessment Act 1979. While every effort has been made to cover Commonwealth legislation relevant in NSW, the main focus has been on the primary Commonwealth environmental legislation relevant to land use, the Environment Protection and Biodiversity Conservation Act 1999. Readers are encouraged to visit the relevant Commonwealth Government Department websites for up-to-date information on evolving issues in which the Commonwealth Government and Parliament is playing a role. Departmental and Ministerial responsibilities A number of major changes to the constitution and responsibilities of NSW Government Departments have occurred since publication of the previous edition of this book. The Department of Planning and Infrastructure became the Department of Planning and Environment in April 2014. It is the lead agency in the NSW Government's "Planning and Environment cluster", which includes the Department of Planning and Environment, the Office of Environment and Heritage and the Office of Local Government. Ministerial portfolios within the cluster are the Minister for Planning, the Minister for the Environment (also Minister for Heritage and Assistant Minister for Planning), and the Minister for Local Government. The NSW Environment Protection Authority, whose functions had been absorbed into larger government agencies b~tween 2003 and 2012 (most recently the Office of Environment and Heritage) was re-established as an independent statutory authority within the portfolio of the Minister for Environment in February 2012. Local Land Services commenced operation on 1 January 2014, bringing together the functions and activity of Catchment Management Authorities, Livestock Health and Pest Authorities and some agricultural extension and advisory services of the Department of Primary Industries. The responsible Minister for Local Land Services is the Minister for Primary Industries and Minister for Lands and Water.

The Environmental Law Handbook

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Catchment Management Authorities were abolished in January 2014 and their functions assumed by Local Land Services. The NSW Office of Water was replaced by the Department of Primary Industries - Water in July 2015. Water NSW was established and commenced operations on 1 January 2015. Water NSW replaced the Sydney Catchment Authority and State Water (that is, the State Water Corporation), which continues as a legal entity, but with the new corporate name of Water NSW.

Acknowledgments This is a book with a long history, to which many have contributed. Professor Donna Craig was the convenor of the Community Liaison Committee of the NSW Environmental Law Association which commenced the project in the early 1980s. Bruce Woolf, Jeremy Carew-Reid, Jeff Angel, Peter Hume, Rod Hayes, Neva Wendt, Peter Prineas, Penny Van Oosterzee and Danny Wiggins were particularly active in supporting the work leading to the first edition in 1988 under the authorship of David Farrier. By the third edition, published in 1999, David Farrier had been joined as co-authors by Professor Rosemary Lyster, who took responsibility for revising what are currently chapters 1, 2, 4, 6, 7, 11, 12, 14 and 17; Linda Pearson (now a Commissioner at the Land and Environment Court), who took responsibility for revising chapters 3 and 5 and Professor Zada Lipman who took responsibility for revising what is now chapter 9. The fourth and fifth editions edited by David Farrier and Paul Stein, contained contributions from a number of authors, many of whom have revised their chapters for this sixth edition. While their names appear at the head of each chapter, all acknowledge the debt they owe to authors and contributors to the first five editions. Some of this earlier work continues to appear in this edition despite the massive changes in New South Wales environmental law which have taken place over the life of the book. In addition to the authors of the third edition, noted above, I would like to thank people who have, throughout the life of the book, contributed in varying ways, including providing research assistance, reviewing chapters, responding to questions and editing, or as authors of earlier editions.

They include Ananya Agarwal, Bethany Austin, Stephen Berveling, Professor Ben Boer, Lindsay Brooker, Ian Close, Ian Clyde, Andrew Dalton, Dr Freya Dawson, Laurie Derwent, Rolf Goodacre, Tracy Goulding, Megan Hawley, Ray Jerems, James Johnson, Ian Johstone, Chris McElwain, Elizabeth Favaloro, Natasha Hammond-Deakin, Sue Higginson, Garth Holmes, Kate Marshall, Aideen McGarrigle, Debbie McLaughlin, Duncan Mcluckie, David Mossop, Dr Carla Mooney, Katrina Moore, Melinda Murray, Angela Nanson, Elisa Nicols, Greg Niven, Chris Norton, Lisa Ogle, Lorain Ogle, Margaret Ogle, Howard Reed, Stuart Simington, Jessica Simpson, Chris Smith, Peter Sobinoff, Lynne Spender, Linda Steele, Gina Studencki, Dr Lindsay Taylor, Professor Martin Tsamenyi, Gillian Walker, Rachel Walmsley, Phil Watson, Stefani White, Graeme Wiffen and Bruce Woolf. I thank all of you in contributing to what has been a wonderful collaborative process over the years. If I have missed anybody, I profoundly apologise. Finally, the editor and authors would like to thank our Product Developer at Thomson Reuters, Karen Knowles for driving the publication of this edition, and for her patience, organisation ability and commitment during the course of the book's production. Special thanks also are due to our editor, Julie Pak for her professionalism, efficiency, hard work and attention to detail.

Table of Cohtents Preface ............................................................................................................................................................................................................. v Using this book ....................................................................................................... ................................................................................... ix Acknowledgments .................................................................................................................................................................................. xi Chapter 1: The structure and scope of environmental law .................................................................................. 1 Dr Peter Wi/Jioms

What is environmental law? ....................................................................................................................................................... [l.20J The focus of environmental law ............................................................................................................................................. [l. l 50J Ecologically sustainable development ................................................................................................................................ [l. l 90J How environmental law works ............................................................................................................................................... [l.250J Land tenure ....................................................................................................................................................................................... [l.310J Sources of environmental law ................................................................................................................................................. [l.430J Chapter 2: Building blocks of environmental law .................................................................................................. 31 Dr Peter Williams

Planning by private agreement ................................................................................................................................................. [2.20J The law of nuisance ...................................................................................................................................................................... [2. l 50J Planning .............................................................................................................................................................................................. [2.250J Administrative law ........................................................................................................................................................................ [2.350J The role of criminal law ............................................................................................................................................................... [2.550J Economic instruments ................................................................................................................................................................ [2.720J The role of the courts .................................................................................................................................................................... [2.730J Chapter 3: Land use planning ............................................................................................................................................ 89 Amelio Thorpe

Plans and plan making ................................................................................................................................................................... [3.20J Local Environmental Plans .......................................................................................................................................................... [3.90J How LEPs are made ..................................................................................................................................................................... [3.280J State environmental planning policies ............................................................................................................................... [3.380J How SEPPs are made ................................................................................................................................................................. [3.590J Challenging the validity of plans ............................................................................................................................................. [3 .51 OJ Development control plans and council policies ............................................................................................................ [3.570J Identifying the relevant planning controls ........................................................................................................................ [3. 71 OJ Chapter 4: Crown land and protected areas ........................................................................................................... 131 Louise Byrne

Assessment and disposal of Crown land in NSW .......................................................................................................... [4.30] Dedication and reservation ....................................................................................................................................................... [4.100] Development in reserved areas ............................................................................................................................................. [4.320J Management plans ....................................................................................................................................................................... [4.490] Commonwealth protected areas ........................................................................................................................................... [4.510J

. The Environmental Law Handbook XlV

Chapter 5: Development ..................................................................................................................................................... 15 7 Dr Peter Williams

Introduction ........................................................................................................................................................................................... [5.20] When is development consent required? ............................................................................................................................ [5.50] Legal classification of development ..................................................................................................................................... [5.270] Nonconforming uses .................................................................................................................................................................... [5.410J Development applications ......................................................................................................................................................... [5.57 0] Who makes the decision? ......................................................................................................................................................... [5.830J Public participation ........................................................................................................................................................................ [5.910J Making the decision ................................................................................................................................................................... [5. l l 80J Development consents ............................................................................................................................................................ [5.1500J Development contributions ................................................................................................................................................... [5.188 0] Reviews and appeals ................................................................................................................................................................ [5.2220J Modification, revocation and lapsing of consent ........................................................................................................ [5.2 31 OJ Enforcement of consents ........................................................................................................................................................ [5.25 00J State significant projects ........................................................................................................................................................ [5.2690] Chapter 6: New South Wales environmental assessment .......................................................................... 275 Emily Ryon

Table of Contents

Chapter 9: Pollution control and waste disposal... .................................................................................:............ 353 Sarah Wright

•

Approaches to pollution control ................................................................................................................................................. [9.20] Role of the Commonwealth .......................................................................................................................................................... [9 .40] Chemicals ........................................................................................................................................................................................... [9 . l 20J Dangerous goods ........................................................................................................................................................................... [9.520J The Protection of the Environment Operations Act .................................................................................................... [9.550] Marine pollution ........................................................................................................................................................................... [9.2140] Waste management ................................................................................................................................................................. [9.2390J Contaminated sites .................................................................................................................................................................... [9.2670] Chapter 10: Climate change and energy .................................................................................................................. 46 7 Ilona Mi/Jar, Kylie Wilson, Rosemary Bullmore

Greenhouse gas emissions ...................................................................................................................................................... [10.20J Climate change ................................................................................................................................................................................ [10.40J Energy ............................................................................................................................................................................................... [10.320] Chapter 11: Agriculture ...................................................................................................................................................... 501 Gi/Jion Duggin

Introduction ........................................................................................................................................................................................... [6.20] When does Part 5 apply? ............................................................................................................................................................. [6.30] Decision-makers under Part 5 ................................................................................................................................................ [6. l 20J Environmental impact assessment ..................................................................................................................................... [6.160] The decision-maker ....................................................................................................................................................................... [6.3 1 O] Monitoring .......................................................................................................................................................................................... [6.350] Enforcement ..................................................................................................................................................................................... [6.360J

Environmental planning controls ........................................................................................................................................... [l l .20J Leases and licences of Crown land ................................................................................................................................... [11 .16 O] Local Land Services ................................................................................................................................................................... [l l.290J Clearing and cultivation ........................................................................................................................................................... [11 .3 50] Soil conservation ......................................................................................................................................................................... [11.440] Pest and weed management ............................................................................................................................................... [l l.520J Genetically modified organisms ...................................................................................................................................... [l l.1090J

Chapter 7: Commonwealth environmental assessment and approval ................................................. 295

Chapter 12: Biodiversity .................................................................................................................................................... 545

Dr Emma Carmody

David Robinson, Jonathon Blond

Controlled actions .............................................................................................................................................................................. [7.20] Matters of national environmental significance ............................................................................................................... [7.40J World Heritage properties ........................................................................................................................................................... [7.50J Matters of Commonwealth responsibility ........................................................................................................................ [7.300] Exemptions ......................................................................................................................................................................................... [7.330] Determining likely significant impact .................................................................................................................................. [7.460J The assessment process ........................................................................................................................................................... [7.560] Strategic assessment .................................................................................................................................................................. [7.650] Approvals ........................................................................................................................................................................................... [7.680J Public participation ........................................................................................................................................................................ [7.750J Government action ..................................................................................................................................................,. ..................... [7.890]

Overview ............................................................................................................................................................................................. [12.lOJ International treaties ................................................................................................................................................................... [12. 3 OJ Commonwealth framework ................................................................................................................................................... [12.100] NSW biodiversity legislation ................................................................................................................................................ [12.360] Protected native animals and plants ............................................................................................................................... [12.710] LEPs and SEPPs ......................................................................................................................................................................... [12.860] Trees in urban areas ................................................................................................................................................................. [12.980] Development control and offsetting .............................................................................................................................. [12.1070J Clearing native vegetation .................................................................................................................................................. [l 2.l 350J Noxious weeds ········································································································································································· [12.1560J Voluntary conservation of private land ........................................................................................................................ [12.1580J

Chapter 8: local government .......................................................................................................................................... 329

Chapter 13: Forests and plantations law ................................................................................................................. 621

Dr Andrew H Kelly, Dominic J Crinnion

Local government's power and responsibility .................................................................................................................... [8.20J Plans, strategies and programs ............................................................................................................................................. [8.1 OOJ State of the environment reports .......................................................................................................................................... [8.150] Community and operational land .......................................................................................................................................... [8. l 80J Amalgamation of councils ......................................................................................................................................................... [8.370J Constitutional recognition of local government ............................................................................................................. [8.380J

Dr Jomes Prest

Commonwealth law ...................................................................................................................................................................... [13 .20J NSW forestry law ...................................................................................................................................................................... [13.130] Forestry certification .............................................................................................................................................................. [13. l 060] Electricity generation from native forest feedstock .............................................................................................. [13. l 070J Chapter 14: Coastal and riverside land ..................................................................................................................... 669 Rosemary Bullmore

Laws that protect the coastal zone ....................................................................................................................................... [14.20] The Coastal Zone ............................................................................................................................................................................ [14.40J Planning requirements in coastal areas ........................................................................................................................ [14.160]

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Other policies and agency responsibility ........................................................................................................................ (14.5 3 0] Threatened species and Ramsar wetlands .................................................................................................................. (14.640] Development below high water mark .............................................................................................................................. (14.680] The Coastal Protection Act 197 9 ...................................................................................................................................... (14. 71 O] Accretion and erosion ............................................................................................................................................................... (14.840] Development on floodplains .................................................................................................................................................. (14.870] Rivers and lakes ....................................................................................................................................................................... (14.1040] Extractive operations ............................................................................................................................................................. (14.1250] Acid sulfate soils ...................................................................................................................................................................... (14.1290] Reclamation and dredging .................................................................................................................................................. (14.1340]

Chapter 15: Water supply ................................................................................................................................................ 723 Kathryn Ridge

Water resource management in NSW ............................................................................................................................. [15.20] National responses ....................................................................................................................................................................... [ 15.70] Water Management Act 2000 (NSW) ......................................................................................................................... (15.140] Licences ........................................................................................................................................................................................... [ 15.51 O] Approvals ........................................................................................................................................................................................ (15.710] Trading water ................................................................................................................................................................................ (15.740] Community participation ........................................................................................................................................................ (15.820] Irrigation areas ............................................................................................................................................................................. (15.850] Offences under the Water Management Act 2000 ............................................................................................... (15.940] The Sydney Water Catchment ........................................................................................................................................... [15.970] Water efficiency ....................................................................................................................................................................... (15.1020]

Chapter 16: Catchment management ........................................................................... ............................................ 763 Dr Peter Williams

Introduction ....................................................................................................................................................................................... [ 16. l O] Integrated catchment management .................................................................................................................................... [16 .30] Catchment Management Authorities .............................................................................................................................. [ 16. l 00] The Natural Resources Commission ............................................................................................................................... (16.170] Local Land Servi ces ................................................................................................................................................................... (16.210] Other legislation ........................................................................................................................................................................... (16.320] Conclusion ....................................................................................................................................................................................... (16.390]

Chapter 1 7: Heritage conservation ............................................................................................................................. 787 Judith Preston, Jeff Smith

The international framework ................................................................................................................................................... [17.20] The role of the NSW Government ........................................................................................................................................ (17.70] Environmental planning instruments .............................................................................................................................. [ 1 7 .61 O] State records ................................................................................................................................................................................. (1 7 .680] The National Trust ..................................................................................................................................................................... [17.690] Historic Houses Trust .............................................................................................................................................................. (17.700] The role of the Commonwealth ........................................................................................................................................... [17.710] Historic shipwrecks ................................................................................................................................................................... (17.940] Overseas Places of Historic Significance to Australia ........................................................................................... (17.950] Other legislation protecting heritage ................................................................................................................................ (17.960]

Chapter 18: Mining ............................................................................................................................................................... 827 Thomas Kwok, James Innes

Introduction ....................................................................................................................................................................................... [ 18.1 O] Minerals legislation ....................................................................................................................................................................... (18.90]

Table of Contents

Approvals under the Mining Act ......................................................................................................................................... (18.130] Where exploration or mining is restricted ...........:........................................................................................................ (18.240] Interaction with the planning legislation ........................................................................................................................ (18.430] Public and landholder participation ................................................................................................................................... [ 18.540] Agency involvement in decision-making ....................................................................................................................... (18.620] Compensating landholders .................................................................................................................................................... (18.670] Mine Subsidence Compensation ........................................................................................................................................ (18. 71 O] Non-mining development in mine subsidence districts ......................................................................................... (18.730] Protection of the Environment ............................................................................................................................................. (18.750] Offences and enforcement ..................................................................................................................................................... (18.840] Judicial processes under the Mining Act ........................................................................................................................ (18.930] Exploration and production of onshore petroleum .................................................................................................... (18.950] Petroleum and the planning legislation ....................................................................................................................... (18.1090] Offshore exploration and mining ..................................................................................................................................... [18.1150] Offshore petroleum exploration and production ..................................................................................................... (18.1240] Uranium mining and nuclear facilities ......................................................................................................................... (18.1270] Extractive industries .............................................................................................................................................................. (18.1280]

Chapter 19: Fisheries and aquatic ecosystems ................................................................................................... 887 Professor Wmwick Gullett

The development of fisheries law in NSW ........................................................ .............................................................. [19.30] Where do NSW fisheries laws apply? ............................................................................................................................... [ 19. 90] General fisheries management ........................................................................................................................................... [ 19.120] Recreational fishing ................................................................................................................................................................... [19.200] Indigenous fishing rights ......................................................................................................................................................... [19.270] Commercial fisheries management ................................................................................................................................. [19.320] Management strategies and environmental assessments ................................................................................ [19.560] Enforcement .................................................................................................................................................................................. (19.620] Aquaculture .................................................................................................................................................................................... (19.6 70] Protection of aquatic habitats .............................................................................................................................................. [ 19.81 O] Threatened species conservation ...................................................................................................................................... (19.910]

Chapter 20: Aboriginal land and heritage in NSW ............................................................................................ 929 Susan Phillips

Historical background .................................................................................................................................................................. [20. l O] The NSW Aboriginal Land Rights Act ................................................................................................................................ [20.70] Native title ...................................................................................................................................................................................... [20.220] Aboriginal cultural heritage protection in NSW ......................................................................................................... [20.720]

Table of Cases .......................................................................................................:.............................................................................. 973 Table of Statutes ............................................................................................................................................................................. 1003 Index ....................... ................................................................................................................................................................................. 1045

.. XVll

1 The structure and scope of environmental law Dr Peter Williams Faculty of the Built Environment University of New South Wales

What is environmental law? .................................................................................................................................. [1.20] The focus of environmental law ........................................................................................................................ [1.160] Ecologically sustainable development ........................................................................................................... [1.190] How environmental law works .......................................................................................................................... [1.250] Land tenure .................................................................................................................................................................. [1.31 0] Sources of environmental law ............................................................................................................................ [l .43 0]

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chapter l The structure and scope of environmental law

[1.40]

Environmental Planning and Protection

[1.1 OJ In NSW, environmental law is to be found mainly in State legislation, although the Commonwealth has some powers under the Constitution that have allowed it to intervene in particular areas which have been identified as involving the national interest. The role played by the common law is very limited.

NSW environmental law has its roots in urban land use planning law, pollution law, nature conservation law and natural resources law. In this Chapter:

• the question of what constitutes environmental law is addressed through considering a classification of the subject matter of this field of law • the basic structure and objectives of environmental law are outlined • the role of environmental law in achieving ecologically sustainable development is explored • the land ownership context in which environmental law operates is explained • the main sources of Australian environmental law are identified and its relationship to international environmental law clarified. Chapter 2 explores in more detail the building blocks of NSW environmental law.

What is environmental law? [1.20] Environmental law is a paradox. Despite constituting a highly specialised branch of law, it is also continuously expanding and evolving to cover ever-widening, yet overlapping, subject matter. This creates an increasingly complex - indeed intricate - field of law. Assistance in understanding the breadth of environmental law may be afforded by adopting an appropriate conceptual framework. One such explanatory framework is that provided in 1986 by the former Australian Environment Council (AEC}, a Ministerial Council comprised of the Commonwealth, state and territory ministers for the environment. The AEC has experienced several subsequent name changes, and is now called the National Environment Protection Council. The basic concept employed in this model is to perceive the body of environmental law in terms of its "protective component" and its "exploitative component".

The "protective component" may be described as those rules for the protection of our environment from undue degradation by human activity, and rules for the conservation of natural, built and cultural items within the environment. The "exploitative component" may be described as being those rules for the dispositioq of natural resources, and rules which promote, or facilitate, development activity. (Australian Environment Council, Guide to environmental legislation and administrative arrangements in Australia, AEC Report No 18 (1986) 2nd ed, Canberra, AGPS, p 6.) On the basis of this conceptualisation of protective and exploitative elements, the AEC divides the subject matter of environmental law into the following thematic groups (see Figure 1.1}:

• environmental planning and protection legislation • legislation concerning the conservation of natural and cultural resources • resource allocation legislation • development legislation.

Conservation of Natural and Cultural Resources

Disposition of Natural Resources

Development Legislation

Relying on this conceptual framework of protective and exploitative components as the basis of classification, a comprehensive list of environment legislation can be presented, and is briefly discussed below. This framework provides a context for gaining an appreciation of the breadth of this field of law - its legislation, relevant case law and related policy. Any attempt at categorisation is fraught with difficulty- the categories and examples presented are by no means exhaustive, and legislation often does not neatly fit into one category alone but rather overlaps. Nevertheless, this framework reveals the plethora of environmental laws and the interaction and interconnections between legislation.

Environmental planning and protection legislation [1.30] The generally accepted underlying philosophy in this branch of environmental law is that a balance should be maintained between the traditional right to use and develop private property with the need to maintain a reasonable level of environmental quality in the interests of the public, both present and future. It is this difference in philosophy which distinguishes measures for environmental planning and protection with legislation concerning the conservation of natural and cultural heritage within the overall body of environmental law.

Sub-groups of legislation comprised within the category of environmental planning and protection legislation are outlined below.

Land-use planning legislation [1.40] The Australian Environment Council (AEC) describes the lineage and form of this arm of environmental law in the following terms:

Legislation concerning the planning and control of land-use predates most other forms of environmental legislation in Australia by a considerable number of years. Land-use planning enactments were adopted by most States in the years immediately after the Second World War. Legislation has been modelled considerably upon British precedents and usually contemplates the zoning of land to identify appropriate and inappropriate forms of land-use, viz. uses which are prohibited, permitted or in need of planning consent. Land-use controls have provided the most common and basic method of regulation of development activity in Australia. (Australian Environment Council, Guide to environmental legislation and administrative arrangements in Australia, AEC Report No 18 (1986) 2nd ed, Canberra, AGPS, p 8.)

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Examples of land-use planning legislation in New South Wales include the Environmental Planning and Assessment Act 1979, Land and Environment Court Act 1979, Coastal Protection Act 1979 and Local Government Act 1993.

Environmental impact legislation

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designed to extend a special, protected status to these resources where they have been identified as possessing unique or distinctive characteristics. Examples include the National Parks and Wildlife Act 1974, Heritage Act 1977, Wilderness Act 1987, Threatened Species Conservation Act 1995, Nature Conservation Trust Act 2001 and Native Vegetation Act 2003.

[1.50] In NSW environmental impact assessment (EIA) procedures have been incorporated

within the land-use planning system, that is, within the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). The primary EIA provisions are found in Part 5 of the EPA Act, although EIA requirements also apply to the category of designated development (within Pt 4 of the Act), State significant development (under Div 4.1, Pt 4) and State significant infrastructure (under Pt 5.1). EIA under Pt 5 of the Act may require an environmental impact statement (EIS), whereas an EIS is mandatory for the environmental assessment of designated development, State significant development and State significant infrastructure.

Resource-allocation legislation [1.11 OJ The underlying philosophy of this category of legislation was, historically, to regulate the grant of land to settlers, and more recently of utilisation of natural resources, including allocation of water rights, the taking of minerals, forestry, petroleum, fisheries and so on.

Pollution legislation

Arguably, in this category of law there has also been a significant response to emerging environmental awareness through amendments or complete revisions of such legislation, in order to qualify the fundamental policy of allocation and development, by requiring the assessment of environmental quality and conservation objectives. Examples include the Mining Act 1992, Forestry Act 2012, Water Management Act 2000 and Fisheries Management Act 1994.

[1.60] Examples of pollution legislation include the Protection of the Environment Administration Act 1991, Protection of the Environment Operations Act 1997 and Marine Pollution Act 2012.

Development legislation

Waste disposal legislation [1.70] Examples of waste disposal legislation include the Sydney Water Act 1994, the Hunter

Water Act 1991 and the Waste Avoidance and Resource Recovery Act 2001.

Hazardous substances legislation [1.80] Examples of NSW environmental legislation dealing with hazardous substances include

the Environmentally Hazardous Chemicals Act 1985, Radiation Control Act 1990 and the Contaminated Land Management Act 1997,

Integrated resource management legislation [1.90] A more recent sub-category of environmental planning and protection legislation may be

identified which seeks to integrate several branches of environmental law at both the strategic planning and development control levels. Early examples of this type of legislation include the Catchment Management Act 1989 and the Catchment Management Authorities Act 2003, both now repealed. A current example is the Local Land Services Act 2013.

[1.120] The common feature of this category of legislation is that it authorises or facilitates the carrying out of development proposals (normally of a major scale), by exempting or excluding the application of normal environmental controls falling within the environmental planning and protection category of legislation (see [1.30]) . Three distinct types of legislation are evident in this category, as outlined below.

l. Public development legislation [1.130] This involves the creation of a statutory authority which is vested with powers to undertake certain types of development, with the legislation often repealed once the authority is abolished and/or the subject development completed. Examples include the Sydney Cove Redevelopment Authority Act 1968, Darling Harbour Authority Act 1984, Sydney Harbour Authority Act 1984 and the Barangaroo Delivery Authority 2009.

2. Indenture or franchise agreement legislation [1.140] Development legislation of this type comprises acts which have been passed to give legal effect to agreements executed by a state government and a private developer. Such agreements involve a commitment by the developer to the project and by the government to the supply of necessary infrastructure, and often also providing for the grant of any requisite resource rights (for example land, water and minerals). Examples include the Sydney Harbour Tunnel (Private Joint Venture) Act 1987 and the Luna Park Site Act 1990.

Legislation for the consen,ation of natural and cultural resources

[1.150] This category of legislation is designed to facilitate development by catering for the

[1.100] The other "protective" component of environmental law is legislation that has as its principal objective the conservation of natural, built or cultural resources. Such legislation is

application of a single, streamlined approval process in place of the range of normal environmental controls. Examples include the:

3. Fast-track legislation

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State Environmental Planning (Permissible Mining) Act 1996 Environmental Planning and Assessment Amendment Act 1997 (which introduced the new categories of exempt and complying development to the NSW planning system) Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 (which created Part 3A of the EPA Act.

The focus of environmental law Development and protection [1.160] At the heart of any conception of environmental law are rules that regulate human use of the natural environment (natural resources) - land, water, air, minerals, forests and natural landscapes.

Environmental law does not necessarily guarantee the protection of the natural environment. Early NSW law dealing with natural resources such as forests, water and minerals was motivated by a desire to encourage their exploitation for economic and social purposes. There was little attempt to mitigate the impact on the natural environment, let alone ensure that development would not proceed where this impact would be significant. The focus was on development, as distinct from conservation for the benefit of future generations. However, with the enactment of the EPA Act, the law has sought to ensure that decisionmakers, when they exercise their discretionary powers in relation to the development of natural resources, take into account effects on the natural environment as well as social and economic factors. While this does not mean that environmental concerns will be decisive in particular cases, the Act has grafted onto the existing emphasis on development an obligation at least to consider impact on the environment. Yet this does not guarantee its protection. As a result, environmental law has become largely concerned with providing the machinery for resolving disputes between people who want particular natural resources to be used for different purposes. This is not to say that there are no general rules designed to protect the natural environment. Legislation does on occasions prohibit certain activities altogether (for example, nuclear activity or incompatible development in an environmental protection zone identified in a land use plan) . In addition environmental law provides that certain areas can be set aside as protected areas under State control, such as nature reserves, national parks and wilderness areas, and in these areas conservation is given priority over development. Environmental law is not confined to those areas of law that deal with preservation of the natural environment. Laws concerned with the development of natural resources have an equal claim to be included: preservation and development are simply two different approa~hes to natural resource use.

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Natural and developed [1.170] At one extreme, we may confront issues about whether a rainforest should be logged or whether remnant native vegetation should be mined or cleared for agriculture. At the other extreme, human beings may already have made such a major impact on the land through construction or farming that its status as natural environment no longer exists. In these circumstances, the issue is frequently whether one form of human activity should replace another. The dispute is still, however, about appropriate land use.

In practice, it is impossible to draw a dividing line between "natural" and "developed", and to confine environmental law to regulating the environment in its natural state. In the first place, there would be problems in defining what we mean by "natural", given that air, land and water have all been subjected to varying degrees of human interference. This is reflected in legislation. Even legislation relating to national parks contemplates significant recreational use as well as conservation. The Environmental Planning and Assessment Act 1979 deals with environmental assessment of both development within the built environment and development in endangered ecosystems.

Even in situations where the issue involves a change of use of part of the environment that has already been modified significantly by human activity, there are opportunities for mitigating human impacts, or even restoring the natural environment in some situations. One objective of environmental laws regulating air and water pollution, for example, is to gradually reduce environmental pollution over time.

Definitions of environment [1.1 80] The concept of "environment" is usually associated with the natural or biophysical environment, which consists of land, water, flora and fauna, air, and climate. But humans are also part of the environment, so economic and social factors are also relevant to this definition, helping to create the "built environment". Indeed, the environment has been defined as "a concept which includes all aspects of the surroundings of humanity, affecting individuals and social groupings" (Gilpin A, An Australian Dictionary of Environment and Planning, Oxford University Press, Melbourne, 1990). Thus the environment is by no means in its natural state when questions about its use arise, and so in practice it is difficult to draw a dividing line between "natural" and "developed" environment (see [1.170] above) .

In attempting to identify the scope of environmental law, we can get some guidance from definitions of "environment" found in legislation. The definition in the Commonwealth legislation, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), takes our attention beyond the natural components of the environment to the values that human beings attribute to these components. Environment is defined to include (s 528): (a)

ecosystems and their constituent parts, including people and communities; and

(b)

natural and physical resources; and

(c)

the qualities and characteristics of locations, places and areas; and

(d)

heritage values of places and

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the social, economic and cultural aspects of a thing mentioned in paragraph (a), (b), (c) or

(1.200]

(g)

marine environment (except a matter arising under the Fisheries Management Act 1994 or the Marine Parks Act 1997,

(h)

forestry,

(i)

any other matter concerning natural resources prescribed by the regulations.

(d ).

The EPA Act provides that environment "includes all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings" (s 4, EPA Act). This definition focuses on the surroundings of human beings and the way in which these surroundings affect human beings, rather than the way human beings affect the natural environment. To this extent it is anthropocentric. But the Act itself assesses and regulates the impacts of human activities on the environment. Thus, as defined by legislation "environment" may be perceived in unavoidably anthropocentric terms, generally referring to human surroundings or includes humans as part of the environment. In comparison, terms such as "ecosystem" or "ecological community" are usually used to refer to the environments of other species, and so focus on the natural environment and the field of biodiversity in particular. An ecosystem is a dynamic complex of plant, animal and micro-organistic communities and their non-living environment or surroundings, all interacting as a functional unit (EPBC Act, s 528). An ecological community is an assembly of native species that inhabits a particular area in nature (EPBC Act, s 528). The Protection of the Environment Administration Act 1991 (NSW) simply lists the various components which go to make up the "environment" but is careful to include both the natural and human made environment. It defines "environment" as (s 3 ): components of the earth, including: (a) land, air and water, and (b)

any layer of the atmosphere, and

(c)

any organic or inorganic matter and any living organism, and

(d)

human-made or modified structures and areas,

and includes interacting natural ecosystems that include components referred to m paragraphs (a)-(c). From this broad perspective, any attempt to draw a sharp distinction between natural resources law and environmental law in particular breaks down. For example, biodiversity is perceived as part of the natural environment: specifically the environment of other species as expressed in terms such as ecosystems and ecological communities. Yet biodiversity has also come to be recognised as a resource, as indicated for example in its inclusion in the definition of natural resources in the NSW Natural Resources Commission Act 2003. The definition of "natural resources" in the Natural Resources Commission Act 2003 illustrates the difficulty of attempting to draw any distinction between environmental management and management of natural resources (s 5): (a)

water,

(b)

native vegetation,

(c)

salinity,

(d)

soil,

(e)

biodiversity,

(f)

coastal protection,

chapter 1 The structure and scope of environmental law

This scenario of the practical convergence of the fields of natural resource management and environmental management is crucial in the specific context of land use planning, as it presents a challenge for land use planners who are now expected to be natural resource managers as well. Rising to this challenge is problematic, not least because of the differing traditions of land use planning, with its origins in old-style Brit_ish "town and country planning" and natural resource management, which is rooted in more recent fields of ecology, environmental science and other sciences such as biology.

Ecologically sustainable development [1.190] The concept of ecologically sustainable development (ESD) has been increasingly

incorporated into environmental legislation as an appropriate consideration for environmental agencies and decision-makers. It has its origins in the report of the World Commission on Environment and Development, Our Common Future (Brundtland Report, 1987), where development was defined as sustainable "if it meets the needs of the present without compromising the ability of future generations to meet their own needs" (p 8). In 1992, the Intergovernmental Agreement on the Environment (see [1.540]) committed all Australian governments to ESD in the assessment of natural resources, land-use decisions and approval processes (Schedule 2).

Integrating the economy with the environment [1.200] Attempts have been made to give the concept of sustainable development greater

precision and to make it a more useful tool in legal contexts. The NSW Protection of th e Environment Administration Act 1991 set up the Environment Protection Authority (EPA). The objective of the EPA is to protect, restore and enhance the quality of the environment in NSW. In pursuing this objective, the EPA is required to have "regard to the need to maintain ecologically sustainable development" (s 6(1)(a)). ESD is said to require "the effective integration of economic and environmental considerations in decision-making processes". The "principles and programs" to assist in achieving this are (s 6(2)): (a)

the precautionary principle - namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by: (i)

careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and

(ii)

an assessment of the risk-weighted consequences of various options,

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(b)

inter-generational equity - namely, that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations,

from the scope, purpose and objects of the particular legislation. A number of pieces of NSW legislation now refer to the principles of ESD in spelling out their objects or the objectives of the agency administering the legislation.

(c)

conservation of biological diversity and ecological integrity - namely, that conservation of biological diversity and ecological integrity should be a fundamental consideration,

(d)

improved valuation, pricing and incentive mechanisms - namely, that environmental factors should be included in the valuation of assets and services, such as:

For developments regulated under Part 4 of the EPA Act (see Chapter 5), for example, section 79C does not specifically require the decision-maker to take ESD into consideration. It does, however, require the "public interest" to be taken into account along with other more specific factors, including "environmental impacts on both the natural and built environments" and "the social and economic impact in the locality" . It has been held by the Land and Environment Court that the "public interest" includes ESD principles because the objects of the legislation include the encouragement of ecologically sustainable development (Carstens v Pittwater Council (1999) 111 LGERA 1 at [74]; BGP Properties Ltd v Lake Macquarie City Council (2004) 138 LGERA 237 at [113]; Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10 at [123]-[124]; Minister for Planning v Walker [2008] NSWCCA 224 at [43])). In Aldous v Greater Taree City Council (2009) 167 LGERA 13, Biscoe J held that the council had to take the principles of ESD into account, in particular the impact of climate change induced coastal erosion, in deciding whether to grant a development consent to construct a new dwelling on beachfront land.

(i)

polluter pays - that is, those who generate pollution and waste should bear the cost of containment, avoidance or abatement,

(ii)

the users of goods and services should pay prices based on the full life cycle of costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any waste,

(iii)

environmental goals, having been established, should be pursued in the most cost effective way, by establishing incentive structures, including market mechanisms, that enable those best placed to maximise benefits or minimise costs to develop their own solutions and responses to environmental problems.

This definition is now adopted by many other pieces of NSW environmental legislation. The list of ESD principles in the Commonwealth Government's EPBC Act (s 3A) is less detailed but in similar terms. The major difference is that ESD is said to require the integration not only of economic and environmental considerations but also social and equitable considerations, over both the short and long term.

Taking ES • into account in decision-making [1.210] In an ideal world, ESD would be the standard by which the suitability of development was assessed. Under NSW legislation it is, at best, something to be considered by decisionmakers. See [2 .360]-[2.510] for a discussion of the very limited role that the courts are prepared to play in ensuring that decision-makers give adequate consideration.

Whether legislation even requires ESD to be considered depends on statutory interpretation. Some statutes now specifically require a decision-maker to take ESD principles into account when making decisions affecting the environment. For example, if proposed development is likely to significantly affect a threatened species, and consent under the Environmental Planning and Assessment Act 1979 is required from a local council, that consent must not be granted without the concurrence of the Chief Executive of the Office of Environment and Heritage (EPA Act, s 79B( 3)) . In deciding whether or not to concur, the Chief Executive must take the principles of ESD into consideration (EPA Act, s 79B(5)(g)) . More specifically, the Fisheries Management Act 1994 provides that the precautionary principle ("if there are threats of serious or irreversible damage to fish stocks, lack of full scientific certainty should not be used as a reason for postponing measures to prevent that damage") is to be taken into account in fixing total allowable catches (s 30(2)(c)).

Role of the precautionary principle [1.220] The interpretation and application of one of the principles of ESD, the precautionary principle, is proving particularly controversial and difficult to resolve. The precautionary principle applies in situations where there is scientific uncertainty about the environmental impact of an activity.

In Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10, the Chief Judge of the Land and Environment Court held that to trigger the precautionary principle a threshold test, with two rungs, had to be passed:

• •

there must be a threat of serious or irrev~rsible environmental damage, supported by scientific evidence, and scientific uncertainty as to the nature and scope of the threatened environmental damage.

If the threshold test is passed, then the precautionary principle requires the decision-maker to presume that there is indeed a threat of serious or irreversible environmental damage flowing from a proposal unless the proponent proves otherwise (at [150-152]). What the precautionary principle does is to lower the burden of proof relating to environmental impact below "scientific certainty" in cases where the potential degree of impact is serious or irreversible. However, the presumption of threatened serious or irreversible environmental damage does not mean that approval for a project must necessarily be refused, or that it should only be allowed to go ahead subject to such stringent conditions that it is not economically viable. The precautionary principle does not give the assumed environmental damage overriding weight in the decision-making process. The decision-maker, in exercising discretion, can still prefer arguments in favour of development based on social and economic considerations (at [154]) .

"\

Where specific legislative provisions do not exist, it is unclear when a decision-maker is required to have regard to ESD principles as a mandatory consideration. In accordance with principles of administrative law, relevant considerations for decision-makers must be determined

On this view, the precautionary principle is designed to introduce transparency into the politics of resource use decision-making by forcing decision-makers to admit when they put socio-economic imperatives ahead of threatened serious or irreversible harm to the environment.

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Some, however, would like to see the precautionary principle go a lot further and require the decision-maker to give extra weight to environmental considerations when making decisions (see [2.440]-[2.4 70]). An extreme version of this approach would deny approval for development unless the applicant can show that the proposal will not cause serious or irreversible environmental damage. But at present the general position is that the precise weight to be given to the precautionary principle and environmental impact is a matter for the decision-maker unless legislation specifically provides otherwise. In Greenpeace Australia Ltd v Redbank Power Co Pty Ltd (1994) 86 LGRA 143, Justice Pearlman stated that the precautionary principle: should be adopted in evaluating the various relevant factors in determining whether or not to grant consent; [but] it does not require that the greenhouse issue should outweigh all other issues.

[1.240]

chapter 1 The structure and scope of environmental law

required the development of procedures not simply for dealing with the situation if voids and fissures were found, but assessing the limestone for voids and fissures, and any biota in them, prior to blasting: In basic terms, the protocol will need to identify the process for successive investigation of areas to be quarried, probably by drilled cores. The core holes will need to be examined for presences of cracks, fissures, large voids and water and sampled for biota, both stygofauna and troglofauna. The protocol may need to address frequencies of sampling and the criteria for implementation of measures up to and including closing the operation. There will need to be agreed courses of action depending on the findings from sampling (at [189]).

Case studies: The precautionary principle [1.230] Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133

was a merit appeal (see [2.350]) to the Land and Environment Court from a local council decision refusing development consent for the construction of a mobile telephone base station, including antennas, to improve mobile telephone coverage in the area. The primary issue related to the effect of radiofrequency electromagnetic energy on public health. In approving the proposal, Preston CJ found that the threshold test for the operation of the precautionary principle had not been met: there was no threat of serious or irreversible environmental damage, particularly in light of the fact that the development would comply with the relevant Australian Standard, which itself embodied a precautionary approach. In Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd [2010] NSWLEC 48, one issue that arose was whether a proposal to quarry limestone was likely to have an impact on any biota present in subterranean aquatic habitat in any caves found in the limestone. At that stage, no caves were actually known to be present on the site. After considering the evidence of expert witnesses, Preston CJ determined that there were likely to be small, interconnected voids and fissures in the limestone to be quarried. He then went on to conclude that even though there was no site-specific information on the presence of biota (at 177): the presence of biota in caves and groundwater in the near vicinity of the site and the increasing number of studies elsewhere that establish the presence of biota in limestone, make it scientifically likely that some form of biota will be found within the limestone on the site. It was "beyond a mere possibility" that biota would be present, and this was sufficient to pass the threshold test and attract the operation of the precautionary principle. In light of this, the response to be taken to the quarrying proposal turned on "the combined effect of the degree of seriousness and irreversibility of the threat of environmental damage and the degree of uncertainty" (at [180]) . There had to be a balance between the stringency of the precautionary measures and their associated costs and the seriousness and irreversibility of the threat (at [182]). In these circumstances, Preston CJ held that the most appropriate approach was to grant approval subject to conditions requiring monitoring and adaptive management. This

State of the environment reports [1.240] State of the environment reports are regarded as a key component in any management system attempting to achieve ESD. ESD relies on adequate and accessible information about the environment being available to the public, industry, non-government organisations and all levels of government. Once national indicators of changes and trends in environmental conditions are agreed on, a state of the environment report allows regular reporting on these indicators. Typically, the report will describe human impacts on the environment and their implications for human and economic well-being. An opportunity is also provided to monitor the performance of government policies against actual outcomes.

The NSW Protection of the Environment Administration Act 1991 requires the Environment Protection Authority to prepare such a report every three years (s 10). The report must be given to the Environment Minister and tabled in both Houses of Parliament. It must include the following:

• an assessment of the status and condition of the major environmental resources of NSW • an examination of environmental trends, including their implications for the environment and for human health • a review of the programs and activities of public authorities and of the private sector relating to environment protection • an examination of trends in economic analysis and of the costs and benefits (including economic evaluation) of environment protection • any general recommendations for future legislative or other action that the EPA considers appropriate to discharge its responsibilities in relation to environment protection • a statement on the performance of environmental education programs.

The most recent state of the environment report is New South Wales State of the Environment 2012 (http://www.epa.nsw.gov.au/soe/soe2012/index.htm).

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(1.250]

How environmental law works [1.250] Environmental law is concerned with resolving disputes about the use of resources,

whether natural or human made. Proposed uses may involve the development of resources at one extreme (such as, putting an ecosystem under bricks and concrete) to their restoration to a historical baseline and preservation at the other, or anything in between. Environmental legislation generally gives only a partial picture of how people should behave in relation to the law. There are a few examples of general statements in legislation of what particular groups should not do, backed up by the threat of penalties under the criminal law. The Marine Pollution Act 2012 (NSW), for example, provides that the owner and the master of a ship that discharges oil into waters covered by the Act are guilty of offences unless they can prove that they fall within one of a detailed list of exceptions (ss 18 - 25). But this is unusual. Environmental legislation, for the most part, prohibits behaviour but qualifies this by providing for specific applications to engage in particular instances of this behaviour to be approved on a case by case basis. The decision on whether the behaviour should be allowed is delegated to local councils, government ministers, accredited certifiers, various planning panels or commissions, the Land and Environment Court and licensing bodies. The law's role is to set up the procedures that decision-makers must follow in reaching decisions on a case by case basis. This is inevitable in a land use context because decisions must be tailored to the very different environments that exist on different areas of land. This delegation of decision-making power is sometimes made directly to bodies with access to more precise information, which then grant an approval or give directions in particular cases. Or the delegation may be intermediate, providing procedures for making land use or management plans. In turn, the plans may further delegate the power to make decisions in particular cases by requiring approval to be sought for specified activities.

Approvals [1.260] Even where environmental legislation appears to clearly prohibit certain forms of

behaviour in relation to the environment, there will usually be a further provision that enables people to apply for approval to engage in the prohibited behaviour. So, for example, the Protection of the Environment Operations Act 1997 (NSW) at one stage states in clear terms that "a person who pollutes any waters is guilty of an offence", with the sanction of a substantial fine (s 120(1)). However, it later adds that this is not an offence if a licence is first obtained and its terms and conditions complied with. What this means is that most environmental law is concerned with setting out the procedures according to which approvals, such as consents, permits and licences, may be applied for and granted. Where the law requires approval to be sought, the applicant will not know the outcome until the procedures have been followed and a decision has been made on the facts of the particular case. This decision will turn on the way in which the responsible decision making body chooses to exercise the powers it has been given. This body exercises discretion (see [1.300]).

(1.280]

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Plans [1.270] Environmental legislation may provide for implementation through more detailed plans, although plans need not necessarily contain legally binding regulatory provisions. An example of a plan which does is an environmental planning instrument (for example, a local environmental plan) made under the NSW EPA Act. The legislation sets out the procedures according to which these plans must be made if they are to have the force of law (see Chapter 3). The legislation does not set out the detailed rights and obligations of developers in relation to the development of a particular piece of land: the plan itself will start to spell out these details, at least giving information to developers and conservationists about what kinds of development are prohibited on a particular piece of land, and what kinds are permitted with or without need for prior approval. In practice many types of development will be permitted only if the developer first secures the approval of a particular decision-making body, usually a local council, other planning body or the Planning Minister. In this case, the legislation has not only delegated to another body the decision to determine the contents of the plan, but that body is further delegated the decision about what development should be allowed on particular sites.

The existing use of land [1.280] Environmental law is rarely concerned with virgin territory. Land will usually be subject

to a current or existing use, even if it is simply rough grazing. To insist that particular activities on land, established lawfully in the past under the law as it then existed, cease because they are out of kilter with the present needs of the community or the environment would be extremely disruptive and unfair. On the other hand, if new legislation or a new plan simply permits the existing use of land to continue even though the community's priorities have changed, this denies any possibility of correcting what are now seen to be land-use errors made in the past. In practice, NSW planning legislation exempts existing uses of land from provisions in plans made under it that seek to prohibit or regulate that use (see [5.410]-[5.560]). However, a majority of the NSW Court of Appeal has emphasised that the protection of existing uses under planning legislation is a privilege rather than a right, which may have to give way to additional restrictions contained in other legislation (Vanmeld Pty Ltd v Fairfield City Council (1992) 75 LGRA 374 ). The scope of the existing use is narrowly defined. In addition, the right is lost if the use is abandoned or if the owner of the land voluntarily decides to exchange it for one that is permitted by the plan - which is precisely what planners hope will happen sooner or later. In practice, the broad principle that the existing use to which land is being put should be exempt from new regulatory initiatives by government has not only been adopted in planning legislation. For example, the Commonwealth Government's Environment Protection and Biodiversity Conservation Act 1999 introduced a new regulatory regime covering private land use where a proposed activity was likely to have a significant impact on nationally significant environmental values, such as threatened species. Existing uses are exempted from the requirement to obtain approval (see [7.450]). However, there is nothing in pollution legislation that prevents the existing level of emissions from being reduced by new regulations. The Environment Protection Authority (EPA) has powers under legislation to have a dramatic impact on industry by requiring significant cuts in emissions. In practice, however, it is sensitive to economic constraints and provides a timetable for change (see Chapter 9).

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Orders, notices and directions [1.290) Rather than spelling out general obligations from which individuals and companies can

exclude themselves by obtaining prior approval, legislation may delegate to public officials the power to take the initiative and make more specific requirements. The requirements may take the form of prohibitions and/or demands for action to be carried out. These delegated powers may take one of two forms: 1.

those usually referred to as orders, which set out regulatory requirements in relation to a particular part of the environment (for example, interim heritage orders: see (17.120])

2.

those usually called notices or directions, which are addressed to particular individuals or companies and set out specific courses of action that they must follow or activities that they must cease carrying out (for example, pollution clean up, prevention and prohibition notices: see [9.910]-(9.980]).

[1.310]

chapter 1 The structure and scope of environmental law

it, rather than on a general rule. We expect courts, on the other hand, to rely on pre-existing rules in reaching a decision in a particular case: Their function is to discover the facts and then apply the law to them. It is true that in practice the law may be unclear or make use of vague standards, and in this sense courts are able to make choices (see, for example, the law of nuisance, discussed [2.160]-(2.240]). But, in theory at least, they have no choice as far as the merits of a case are concerned. The primary issue in a criminal trial is whether the accused has performed acts that amount in law to a criminal offence. Only when it comes to sentencing a person who has been found guilty would we say that the court exercises discretion. Sometimes, however, legislation empowers courts, such as the NSW Land and Environment Court, to hear appeals on the merits from the decisions of local councils and public authorities, and in these situations they must exercise their discretion (see (2.350]).

Land tenure

When making orders, public officials choose only the target (the person obliged to do something); the legislation specifies their obligations. Notices and directions specify both the target and the precise obligations.

[1.31 OJ The regulation of land use is at the core of environmental law. Decisions about

The onus in this context is placed on public officials to bring prohibitions into operation. Whether or not regulation is initiated by making an order or giving a direction or notice depends on the exercise of discretion, and, specifically, whether the officials are prepared to take a proactive stance.

appropriate land use in both urban and rural contexts involve more than traditional notions of town and country planning law, such as the siting of industry in relation to residential areas and the structure of road networks. Appropriate land use also involves choices and decisions about issues such as:

Discretion [1.300) The body deciding whether or not to grant an approval or issue an order, notice or direction, has a choice to make. It must take the facts into account and any legal limits imposed on its range of choices, such as a list of factors it is legally required to take into consideration before granting an approval (for example, an environmental impact assessment). Within these limits, the decision is recognised as a matter for the judgment of the decision maker. This is what is meant by the exercise of discretion. For example, a decision maker deciding whether or not an approval should be granted must weigh up and balance frequently competing considerations (often, in very crude terms, the social and economic need for development as against the protection of the environment) and make a decision. If all procedural requirements are followed, the decision maker can make what is generally recognised as a bad decision without the courts interfering. For the courts are wary about interfering with the exercise of discretions allocated to decision-makers by Parliament in legislation. See [2.350]-(2.510] for a detailed discussion of the limited extent to which the courts are prepared to supervise the exercise of discretion by public bodies.

Legislation can structure the exercise of this discretion by insisting that certain procedures, such as public consultation, be followed and certain factors considered to the exclusion of others. However, only if legislation says that certain action shall be taken, or that a certain decision shall be reached in certain circumstances, will the public body be deprived of discretion and given a duty to perform. A public body exercising discretion is in a different position to a court of law. Its decision will be based on balancing the pros and cons (often referred to as the "merits") of the proposal before

17

• mining, forestry and agriculture • reservation of land for national parks • prevention of pollution • competing uses for water from natural water courses • protection of plants and animals • heritage protection, including the protection of Aboriginal heritage • Aboriginal rights of access to land and other resources.

The kind of tenure (that is, possession or title) under which land is held has important implications for its management. NSW is divided into the Eastern and Central Divisions (about 60% of the State) and the Western Division. At the turn of the century, some 55% of land in the Eastern and Central Divisions was privately owned, while about 20% was held under lease or licence from the Crown. In the Western Division, most land is held under Western Lands' leases and licences.

• • •

In simple terms, in NSW today, land tenure is assumed to be either: Crown land which may be: held under lease, licence or permit; community managed reserves; retained in public ownership for environmental purposes; within the Crown public roads network; other unallocated lands subject to claim by Aboriginal or Torres Strait Islander people; this is of two types: native title recognised at common law, and a statutory right to certain Crown lands privately owned (freehold); or rented or leased from a private owner (leasehold) .

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Crown land [1.:520] In the Eastern and Central Divisions, Crown land may be held under leases or licences ranging from perpetual leases to licences that can be terminated at any time. Most Western Lands leases are perpetual. See Chapter 11, [11.160]-(11.280].

• • •

Other Crown land includes:

[1.350)

chapter 1 The structure and scope of environmental law

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A substantial area of NSW is in private ownership or is held in perpetual leasehold. In spite of ongoing initiatives by the NSW Government to increase the area of land in national parks, we will never have a system of publicly owned conservation areas that will adequately satisfy the needs of nature conservation. The issue of how to persuade or require private landholders to use and manage their lands in ways that are at least compatible with the interests of environmental protection is one of the most intractable problems faced by environmental policy-makers.

the national parks system (7.1 million hectares) State forests (2.2 million hectares) water board catchments.

Land may also be reserved under Crown lands legislation for a range of public purposes (see [4.100]). A small proportion of land is classified as vacant Crown land, comprising mainly rugged areas not allocated for specific uses.

Aboriginal land [1.:J30] Some land in NSW is subject to claims by Aboriginal people. These claims have been facilitated by various High Court decisions and by State and Commonwealth legislation. For a detailed discussion, see Chapter 20. The Aboriginal Land Rights Act 1983 allows Aboriginal land councils, established at local, regional and State levels, to make claims in respect of certain Crown lands in NSW, which in the event of a successful claim become the freehold owners of the land. A common law right to native or customary title was recognised by the High Court in Mabo v Queensland [No 2) (1992) 175 CLR 1. The Commonwealth government responded to the decision by enacting the Native Title Act 1993, preserving native title rights that existed on 1 January 1994, and setting out where the rights had been extinguished. The NSW Government followed suit by enacting the Native Title (NSW) Act 1994 to create consistency between Commonwealth and State legislation.

Privately owned land [1.340] If an area of Crown land is specifically set aside as a protected area, such as a national

park, the threat of land uses posing a threat to conservation values is substantially diminished. While there may be continuing tensions between recreational uses and conservation objectives, most environmentally damaging activities are absolutely prohibited by legislation. Land that has been transferred into private ownership, on the other hand, is subject to a range of developmental pressures, including clearing native vegetation for agriculture and residential development. These can have massive, and often irreversible, impacts on the land' s conservation values. In addition, once land has been transferred into private ownership, it is generally politically more difficult for governments to regulate its use because they will be confronted with demands from owners that their private property rights be respected. Even perpetual leaseholders under the Crown lands legislation, though in theory they hold their land on terms that restrict its use under threat of forfeiture, in practice have a sense of ownership in the face of government "interference" that is little different to that of private landowners.

Environmental low and private property [1.350] Traditionally, private property has been associated with the owner's legally enforceable rights to exclude others from the benefit or use of the land. This is often the argument of those who resort to the ideology of private property when confronted with, for example, legal restrictions on land-clearing. But this argument neglects the vital public interest in regulating, for example, activities that cause polluting spillovers onto other land and into the air and waterways, which belong to the community as a whole. It is one thing to say that owners should be able to stop other people coming onto privately owned land and carrying out their own projects; it is going much further to say that owners should be able to do what they like on their land, regardless of the effects on adjacent landholders or the natural environment.

Some would go further and argue that land has a special status because it is not simply scarce: it is finite. As a result, the State has a vital interest in ensuring that it is used for the benefit of the community as a whole: When the "sacredness of property" is talked of, it should always be remembered, that any such sacredness does not belong in the same degree to landed property. No man made the land. It is the original inheritance of the whole species. Its appropriation is wholly a question of general expediency. When private property in land is not expedient, it is unjust. (JS Mill, Principles of Political Economy). Mill, in the historical context in which he was writing, was concerned to ensure that landholders "improved" land and used it productively. In the past, this was also the attitude taken in Australia, best illustrated in conditions attached to leases of Crown land that required lessees to show their commitment to development by carrying out "improvements" such as building fences and clearing vegetation. The argument now advanced is that society's priorities have changed, with increasing concern about loss of biodiversity and climate change and the implications this has for the future welfare of the planet and the survival of human beings. As a result, we cannot leave decisions about land use solely in the hands of landholders who claim the right to do as they please with their land. The common law, particularly the law of nuisance (see [2.160)-(2.240]), recognised that some restrictions were inevitable if private property holders were to be protected even from each other. If each were allowed to develop land according to their own wishes, there would inevitably be conflicts arising from inconsistent uses that had spillover effects - for example, factories next to residential areas. The new breed of environmental legislation takes the common law a step further. It recognises that spillover effects go beyond pollution and that they can have an impact not only on immediate neighbours but on the broader community and on future generations. The Intergovernmental Agreement on the Environment (see [1.540]) avoids the issue by providing that:

./

/

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(1.360]

Within the policy, legislative and administrative framework applying in each State, the use of natural resources and land remain a matter for the owners of the land or resources. (Schedule 2). This simply begs the question as to how far laws in each State do impinge on the use of privately owned land, but it is clearly intended to be an important symbolic assertion of the "rights" of private property, designed to appease those who call upon the ideology of private property to resist the imposition of land-use controls.

Compensation Existing and proposed uses [1.360] This still leaves the question of whether landholders should be compensated where land-use restrictions are imposed by the law. It is important at this point to distinguish between current or existing land uses and proposed changes to land use. The focus of the debate about payment of compensation has focused on situations where the law thwarts the desire of a landholder to change the use of their land by carrying out development. This needs to be distinguished from any suggestion that existing land uses should be regulated.

As already discussed ([1.280]), land use legislation in practice has traditionally exempted from regulation, to varying degrees, the use to which land is currently being put. As a result the question of compensation does not arise. There are clearly strong equity and economic arguments for protecting existing uses from being shut down overnight. In light of these arguments, governments have generally accepted that they will either have to buy the land in question if they want an existing use terminated altogether or wait for the landholder to abandon it voluntarily.

Compensation under the Commonwealth Constitution [1.370] There is nothing in the NSW Constitution that guarantees private property rights or provides for the payment of compensation if the NSW Government regulates the use to which land is put by, for example, prohibiting particular uses. Section 51(xxxi) of the Commonwealth Constitution on the other hand, provides that any "acquisition" of property by instrumentalities of the Commonwealth must be made on just terms. In the Tasmanian Dam case (Commonwealth v Tasmania (1983) 158 CLR 1), however, three of the four members of the High Court who dealt with the issue made it clear that even the severe restrictions on land use imposed under the World Heritage Properties Conservation Act 1983 (Cth) did not constitute an "acquisition" requiring the payment of compensation under section 5l(xxxi) because the Commonwealth had not itself acquired a proprietary interest in the land.

Occasionally, however, restrictions on land use may be so complete that they essentially take away the whole substance of a property interest. In these circumstances there is an indirect acquisition of property, and Commonwealth legislation will be held invalid unless it provides for compensation as required by section 5l(xxxi) of the Constitution.

(1.390]

ch a pt er 1 The structure and scope of environmental law

21

Case study: The Newcrest Mining case [1.380] In Newcrest Mining (WA) Ltd v Commonwealth (1997) 147 ALR 42, the issue involved mining leases acquired by Newcrest at Coronation Hill, adjacent to Kakadu National Park. In 1989, and again in 1991, proclamations were made under the National Parks and Wildlife Conservation Act 1975 (Cth) incorporating the Coronation Hill area into the Park. This Act provided that "[no] operations for the recovery of minerals" could be carried out in the Park.

Although the mining leases themselves were not extinguished, Newcrest was unable to exercise its rights under them. The benefits the Company might have otherwise derived from its leases were effectively sterilised. A majority of the High Court (Justices Gummow, Toohey, Gaudron and Kirby, with Chief Justice Brennan also agreeing on this point) found that this amounted to an acquisition of property under section 51(xxxi) of the Commonwealth Constitution. The effect of the proclamations and the ban on mining was not merely to impair the bundle of rights that existed under the mining leases. Justice Gummow (at p 130) held that Newcrest had, "as a legal and practical matter", been denied the exercise of its rights under the leases. The "loss" here went much further than that which occurred in the Tasmanian Dam case. Newcrest could do nothing in relation to the land without the right to mine, given the limited rights stemming from the leases, while in Tasmania the land could still be used by its owner (the State of Tasmania) in a limited way as a national park.

Case Study: The ICM Groundwater case [1.390] In ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; [2009] HCA 51 the plaintiff irrigators' licences to access groundwater, issued under the Water Act 1912 (NSW), had been replaced by aquifer access licences, issued under the Water Management Act 2000 (NSW) which allowed them to access over 60% less water. They argued that this was an acquisition of property under section 51(xxxi). Although "structural adjustment payments" had been made to the plaintiffs, the defendant governments accepted that these were not sufficient to constitute "just terms". The High Court held, however, that section 51(xxxi) did not apply because there was no acquisition of property. Following a similar approach to that taken in the Tasmanian Dam case, it held that for there to be an acquisition of property, an identifiable benefit or advantage relating to the ownership or use of property had to be obtained. The exercise by NSW of the power which it had to regulate access to a natural resource, vested not in the plaintiffs but in the State, did not fall within this principle. In a joint judgment, French CJ, Gummow and Crennan JJ distinguished the Newcrest Mining case (at [85]):

To acquire the substance of proprietary interests in the mining tenements considered in that case is one thing, to cancel licences to extract groundwater is another. The mining tenements were interests carved out of the radical title of the Commonwealth to the land in question, and the radical title was augmented by acquisition of the minerals released from the rights of another party to mine them... [T]he property of the Commonwealth had been

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[1.400]

enhanced because it was no longer liable to suffer the extraction of minerals from its land in exercise of the rights conferred by the mining tenements held by Newcrest.

Finding a nexus between State and Commonwealth legislation [1.400] Because the High Court in ICM Agriculture decided that there was no acquisition, it did not have to reach a final conclusion on another issue which was raised. In that case, the National Water Commission (NWC), acting under Commonwealth legislation on behalf of the Commonwealth Government, had entered into an agreement with the NSW Government. Under this, the NSW Government agreed to implement water sharing plans designed to achieve sustainable water use by reducing the amount of water extracted, in return for funding provided by the Commonwealth Government through the NWC. The changes to the plaintiff's licence flowed from this. The essential question is whether the Commonwealth Government has to pay compensation under s 51(xxxi) if Commonwealth legislation requires a State Government to acquire property by attaching a condition to this effect under a financial grant made to the State under section 96 of the Constitution (see below). For, as already discussed, there is no provision for compensation under the NSW Constitution. In the ICM Agriculture decision, four members of the High Court held (at [46], [174]) that Commonwealth legislation would be invalid if it granted financial assistance to a State on a condition that the State acquired property without paying just compensation. However, three of the other justices left the question open (at [141 ). This question and related questions were subsequently considered by the High Court in Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28. A landholder who was prevented from clearing native vegetation from his land under the NSW Native Vegetation Act 2003 (see [12.1360]-[12.1560]) argued that this amounted to a violation of s 51(xxxi) of the Australian Constitution because it constituted an acquisition of property without adequate compensation under Commonwealth legislation, the Natural Resources Management (Financial Assistance) Act 1992 and the Natural Heritage Trust of Australia Act 1997 which provided funding to NSW. He argued that the Commonwealth had not simply restricted his land use but had gained a benefit because, at an international level, it would be able to claim carbon sequestration rights derived from the vegetation on his land. Originally the landholder's challenge was dismissed by Emmett J of the Federal Court pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) on the basis that the landholder had no reasonable prospect of successfully prosecuting the proceedings (Spencer v Commonwealth [2008] FCA 1256). The landholder was granted leave by a judge of the Federal Court to appeal from the decision of Emmett J and the Full Court of the Federal Court subsequently dismissed the appeal (Spencer v Commonwealth (2009) 174 FCR 398; [2009] FCAFC 38). The landholder then applied for special leave to appeal to the High Court. Contemplating the effect of its findings in the intervening decision in ICM Agriculture on the prospects of success, the High Court upheld the landholder's appeal and ordered that the matter be re-determined by the Federal Court (Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA28).

[1.420]

chapter 1 The structure and scope of environmental law

Consequently, in a judgment delivered in July 2015 (Spencer v Commonwealth [2015] FCA 754 ), the Federal Court made two key findings. First, the Court concluded that the two impugned federal laws (the Natural Resources Management (Financial Assistance) Act 1992 (Cth) ar:4:l the Natural Heritage Trust of Australia Act 1997 (Cth)) could not be characterised as laws \..,ith respect to the acquisition of property. When considered at a broader level, in their practical operation and effect as part of a scheme involving several intergovernmental agreements and state legislative controls on native vegetation clearance, there was no acquisition of property in contravention of s 51(xxxi). Second, the Court held that in the original decision (in 2007) of the NSW Rural Assistance Authority that the landholder's farm was not commercially viable because of the impact of the State's native vegetation laws, there was what could be characterised as a "sterilisation" or a "taking", but this was by the State not the Commonwealth. However, there was no acquisition by the State or any other person, of an interest or benefit of a proprietary nature in the bundle of rights the landholder held in his farm. The Court held that, if contrary to its findings, there had been an acquisition of this bundle of rights, the landholder was offered just terms in 2007 by the State's offer to pay the then properly assessed market value for the farm.

Forced purchase under NSW legislation [1.410] Although there is no constitutional provision requiring the NSW Government to pay

compensation where it acquires property, the Land Acquisition (Just Terms) Compensation Act 1991 (NSW) contains provisions requiring not compensation but purchase of land by government in certain circumstances. These include situations where land has been zoned under planning legislation so restrictively as effectively to amount to a reservation by government for a limited range of public purposes, including open space. This is the position where, even though the restrictive zoning permits other development in addition to the public purpose, it does not allow the land owner "a reasonable use of the land" (s 21(3)(6)). But land owners can only trigger purchase by government if they will suffer hardship as a result of any delay in purchase (ss 23, 24). And these provisions do not apply at all where the land is owned by a public company (s 22(2)(6)).

Management payments [1.420] While the formal legal pos1t1on may be that both the NSW and Commonwealth Parliaments have the power to enact legislation regulating land use without paying compensation, there are policy arguments against legislation that seeks to exercise this power. One argument is that where a land-use restriction confers a benefit on the community, as distinct from simply preventing harm, the community should pay. In other words, no compensation should be paid where the aim is to prevent polluting spillovers - in fact, the law increasingly requires polluters to pay - but compensation may be due where the restriction is imposed in the interests of nature conservation. However, concepts of harm and benefit are notoriously slippery. It is true that nature conservation has traditionally been regarded as a luxury rather than a necessity. But with the growing realisation of the essential role played by genetic diversity and different ecosystems in supporting life on the planet and providing ecosystem services to human beings, it may be appropriate to view nature conservation law as preventing harm, rather than simply providing a public benefit. Yet in practice, land-use restrictions - preventing, for example, the destruction of native vegetation - are only the first step in nature conservation. The land needs to be actively managed

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[1.430]

[1.460]

chapter 1 The structure and scope of environmental law

for nature conservation on an ongoing basis, through, for example, pest and noxious weed control, and the fencing off of stock. If landholders are to undertake this responsibility, they may legitimately expect to be paid for the work they do, through stewardship payments. But this is very different from compensating them for interference with so-called private property rights. Compensation relies on backward-looking payments for lost expectations, calculated by any reduction in land value stemming from the land use restrictions imposed. Stewardship payments, on the other hand, pay not for the restrictions themselves but for active conservation management of the land.

The Commonwealth has constitutional power under the external affairs power (see below1' to enact legislation that is "appropriate and adapted" to the terms of an international convention. It has, for example, relied on a number of international multilateral conventions as a basis for enacting the Environment Protection and Biodiversity Conservation Act 1999 (see Chapters 7, 12) These include the United Nations Convention on Biological Diversity (1992), the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (1973), the Convention on Wetlands (Ramsar) (1971) and the Convention for the Protection of the World Cultural and Natural Heritage (World Heritage Convention) (1972). See also the discussion of the constitutional basis of the Water Act 2007 (Cth) in (15.70].

Sources of environmental law

More generally, international law may influence the development of the common law, and it may be used in the interpretation of legislation where it is ambiguous.

NSW legislation

The role of the Commonwealth

[1.430] By far the greater part of the environmental law dealt with in this book consists of Acts (also referred to as statutes or legislation) made by the NSW Parliament, and decisions of the courts interpreting the provisions of this legislation.

The Commonwealth Constitution

International law [1.440] Australia is a party to a number of potentially legally binding international agreements (Conventions) relating to the environment. Most of them are multilateral in that they have multiple parties, while others are treaties between Australia and another country (for example, the Agreement between the Government of Japan and the Government of Australia for the Protection of Migratory Birds and Birds in Danger of Extinction and their Environment (JAMBA) (1974) and the Agreement between the Government of Australia and the Government of the People's Republic of China for the Protection of Migratory Birds and their Environment (CAMBA) (1986) (see [12.30]-(12.90]).

The Commonwealth Government is responsible for decisions whether initially to sign and then subsequently to ratify international conventions. However, the implementation of conventions often requires the cooperation of the States. Consequently, the Commonwealth has agreed to consult with them on the development of international treaties where States' interests are involved, and to take their views into account, trying to secure agreement on how international obligations will be implemented in Australia (Intergovernmental Agreement on the Environment para. 2.5.2). When it comes to the nomination of areas under the World Heritage Convention, for example, the Commonwealth will consult the States and make every effort to obtain their agreement. When agreement is reached, the State concerned has the primary responsibility for preparing the nomination (Intergovernmental Agreement on the Environment, Schedule 8). State Governments are consulted through the Treaties Council, comprising the Prime Minister and the Premiers. Once ratified, the provisions of a convention become binding on Australia at an international level. However, they are not automatically incorporated into Australian law. While not all components of conventions require implementation through legislation, legislation is required before individual rights and obligations are created within Australia.

[1.450] In addition to NSW legislation, the Commonwealth Parliament and Government also play a part through legislation, investment and other forms of influence. The formal position under the Constitution is that the Commonwealth has no direct power to legislate on environmental matters in NSW, leaving the NSW Parliament with general power to legislate in this area. However, the Commonwealth can use its powers in other fields to achieve environmental goals. Beginning in 1983 with the Tasmanian Dam decision by the High Court (see below), these have been interpreted expansively by the High Court.

Most of the relevant powers of the Commonwealth Parliament are contained in section 51 of the Constitution. Some of these powers are discussed below. Where the Commonwealth does not intervene on a constitutionally valid ground, NSW law continues to operate where the NSW Parliament has legislated on the matters in question. There is nothing to say that the Commonwealth must pass legislation in these areas for environmental purposes. In the past, Commonwealth Governments have been conservative in the use of their powers in the environmental context, focusing on specific land-use issues (for example, the protection of world heritage) or particular problems (such as ozone depletion), and on the activities and decisions of Commonwealth bodies. The enactment of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), however, saw the Commonwealth engage directly with land use assessment and regulation across the landscape, including land in private ownership, albeit limited primarily to the protection of particular values for which the Commonwealth has responsibility under particular international conventions (see Chapter 7).

The trade and commerce power [1.460] The Commonwealth has power to make laws in relation to "trade and commerce with other countries and among the States" (Constitution, s 51(i)). This allows it, for example, to regulate exports of species, timber and minerals. This means that the Commonwealth can block resource developments that depend on exports for a market, even if these developments have been given the go-ahead under State land-use legislation (see Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1).

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[1.470]

Because the power extends to interstate trade, the Commonwealth could set standards for the production of manufactured goods and the taking of natural resources, provided that they did not discriminate against interstate trade on protectionist grounds (Constitution, s 92; Cole v Whitfield (1988) 165 CLR 360).

The external affairs power

[1.530]

chapter 1 The structure and scope of environmental law

Taxation [1.500] Under the taxation power (Constitution, s 51(ii)), the Commonwealth can pa~laws taxing environmentally harmful activities (for example, emission of greenhouse gases) or allowing deductions for environmentally friendly products (such as refillable containers and solar energy equipment).

[1.470] Under the external affairs power (Constitution, s 51(xxix)), the Commonwealth can

Commonwealth decision-making

pass laws to implement international conventions dealing with environmental matters, or to regulate environmental degradation of the sea (see Commonwealth v Tasmania (1983) 46 ALR 625; Richardson v Forestry Commission (1988) 77 ALR 237; Queensland v Commonwealth (1989) 86 ALR 519; NSW v Commonwealth (1975) 135 CLR 337; Victoria v Commonwealth (1996) 138 ALR 129).

[1.510] The Commonwealth can pass legislation relating to the decision-making processes of the Commonwealth Government and bureaucracy, and public bodies that have been set up at the Commonwealth level, provided that those processes relate to areas of Commonwealth power (Constitution, s 5l{xxxix)). This enables the Commonwealth Parliament to pass legislation requiring Commonwealth decision-makers to take environmental factors into account before reaching decisions. Under the EPBC Act, Commonwealth bodies must not take actions, whether inside or outside of Australia, that are likely to have a significant impact on the environment until they have been environmentally assessed and approved (s 28; see [7.320]).

The Tasmanian Dam case [1.480] The World Heritage Properties Conservation Act 1983 (now replaced by the EPBC Act see Chapters 7 and 17) provided for the identification of world heritage properties and prohibited a number of activities in those areas. It was an extremely contentious piece of legislation, originally enacted by the Commonwealth Government to prevent the building of a dam on the Gordon River below the Franklin River in Tasmania. This would have inundated a wilderness area listed under the World Heritage Convention.

The constitutional challenge to the validity of the legislation was heard before the High Court (Commonwealth v Tasmania (1983) 158 CLR 1). The Court ultimately held that the Act was constitutionally valid because the protection of the Tasmanian wilderness area was a matter of international obligation under the World Heritage Convention, and therefore the Commonwealth had the constitutional capacity to enact legislation under the external affairs power. The High Court subsequently went further and held, in Richardson v Forestry Commission (1988) 164 CLR 261, that the Commonwealth has an obligation under international law to prevent potential harm to a property which is not listed but is being investigated to determine if it meets the requirements of the World Heritage Convention. This was a valid exercise of the external affairs power.

Corporations [1.490] The Commonwealth can legislate in relation to foreign corporations, financial

corporations and trading corporations, at least in connection with things done for the purposes of their trading activities (Constitution, s 51{xx)); Commonwealth v Tasmania (1983) 158 CLR 1; New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1; [2006] HCA 52). This empowers the Commonwealth to control the environmental impact of the mining, agricultural and manufacturing activities of trading or financial corporations, and all the activities of foreign corporations. This would, for example, allow it to impose uniform pollution emission standards for corporations in all States. The Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth), for example, contains provisions that go beyond Australia's obligations under the Montreal Protocol to the Vienna Convention (1987), and these rest their claim to constitutional validity on the corporations and trade and commerce powers (see [9.410]) .

Which law prevails? [1.520] Where the Commonwealth does validly exercise its powers in environmental matters,

Commonwealth legislation prevails over State legislation if there is any inconsistency (Constitution, s 109).

Case studies: Commonwealth and NSW legislation [1.530] In Commercial Radio Coffs Harbour Ltd v Fuller (1986) 60 LGRA 68, the High Court dismissed the argument that the Broadcasting and Television Act 1942 (Cth), as it then stood, was inconsistent with the Environmental Planning and Assessment Act 1979 (NSW). The Commonwealth legislation did not purport to state exclusively or exhaustively the law that commercial broadcasting station operators must comply with. It concentrated on the technical efficiency and quality of broadcasting services and left room for the operation of other laws, such as planning and environmental legislation. As a result, the operator of a proposed commercial broadcasting station not only needed a Commonwealth broadcasting licence but also development consent, as required by the State legislation. See also Botany Municipal Council v Federal Airports Corporation (1992) 79 LGERA 241.

In Lane Cove Council v Optus Networks (1996) 90 LGERA 232, however, it was held that regulations made under the Telecommunications Act 1991 (Cth) validly exempted Optus from complying with NSW environmental and planning law. Currently, the Telecommunications Act 1997, Schedule 3, Part 1, Division 3, clause 6 specifically exempts certain activities from State environmental planning legislation, including facilities determined by the Minister to be low-impact, while leaving others subject to it.

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The Intergovernmental Agreement on the Environment [1.540] Whether or not the Commonwealth Government will, in practice, exercise its broad powers under the Constitution now largely depends on an agreement between the Commonwealth, the States and the Territories reached in May 1992. This agreement attempts to spell out the environmental policy and management responsibilities of each level of government, including local government.

The Intergovernmental Agreement on the Environment (IGAE) articulates principles that the parties agree should guide the development and implementation of environmental policy and programs, including the adoption of sound environmental practices and procedures as a basis for ecologically sustainable development. The IGAE also represents an attempt to reduce tensions between the Commonwealth and the States that developed when the Commonwealth used its constitutional powers to enact legislation to protect the environment and, in the process, block certain developmental activities in the States - in particular, Tasmania and Queensland.

(1.590]

chapter 1 The structure and scope of environmental law

the grant is to be used for, and also attach other conditions. This allows the Commonwealth to make grants specifically for environmental purposes, such as land clearing regulation (the Natural Resources Management (Financial Assistance) Act 1992 (Cth); Natural Heritage Trust of Australia Act 1997 (Cth)) and water resource management (National Water Commission Act 2004 (Cth)). It could also attach environmental protection conditions to grants for other purposes, for example road construction.

The role of local government [1.580] A considerable amount of environmental law is generated by local councils in the form

delegated or subordinate legislation called local environmental plans (for example, provisions that identify land use zones and regulate development within those zones). The responsibilities and functions of councils are discussed primarily in Chapters 3, 5 and 8.

Areas of Commonwealth responsibility [1.550] The general position under the IGAE is that:

Each State has responsibility for the policy, legislative and administrative framework within which living and non-living resources are managed within the State. (para. 2.3.2) The only areas where the Commonwealth takes overriding responsibility for environmental policy development are (IGAE para. 2.2):

• foreign policy, particularly entering into international conventions and ensuring that international obligations are met • the prevention of situations where the policies and practices of one State have significant adverse effects in another jurisdiction.

The EPBC Act (see Chapter 7), for example, is designed to implement Australia's obligations under specified international nature conservation conventions. Even in areas where the interests of the Commonwealth are recognised, the States are allowed a significant consultative role.

The role of the courts [1.590] The courts have a major role to play in interpreting legislation of the NSW and Commonwealth Parliaments, but they do not play an independent role in areas where the existing legal response to environmental problems is considered inadequate. Although judges were once active in creating new law, producing what is known as the common law, the courts are no longer prepared to get involved in developing a completely new area, such as environmental law.

This is not to say that judges no longer "make" new law. They will deny that they ever do this - but they certainly do have a creative role to play in interpreting the vague words of the Constitution, legislation and the existing common law. Frequently they fill in gaps that parliament has never really thought about. Courts also have the job of interpreting the common law in those areas where it is well established and has not been changed by legislation, for example the law of nuisance (see [2.160]-[2.240]). There are opportunities here for creativity in interpretation, and for extending the boundaries of these areas.

The National Environment Protection Council [1.560] The National Environment Protection Council was set up by the National Environment

Protection Council Act 1994 (Cth), and by complementary State legislation, to implement provisions of the IGAE. The Council has powers to direct the policy of the States where a two-thirds majority of its ministerial members can be obtained (s 28). However, its operations are essentially limited to pollution control and waste recycling and disposal (s 14(1); see [9.50]-[9.110]). In these areas it can make national environment protection measures and assess and report on the implementation and effectiveness of these measures in the States and Territories (s 12).

The Commonwealth's fiscal powers [1.570] Apart from direct legislative intervention, the Commonwealth can use its fiscal powers to exert influence in the environmental context. For example, under section 96 of the Constitution it can make tied grants to the States. That is, the Commonwealth can stipulate what

Sometimes courts act as tribunals, hearing appeals on the merits of particular development proposals and exercising discretion rather than applying legal rules (see the discussion of discretion at [1.300]). In NSW, the Land and Environment Court has an extensive jurisdiction to hear merit appeals, often from local council decisions on development applications (see [2. 730]-[2. 780] ).

29

2 Building blocks of environmental law Dr Peter Williams Faculty of the Built Environment University of New South Wal es

Planning by private agreement ............................................................................................................................ [2.20] The law of nuisance ................................................................................................................................................. [2.160] Planning ......................................................................................................................................................................... [2.250] Administrative law ................................................................................................................................................... [2.350] The role of criminal law .......................................................................................................................................... [2.550] Economic instruments ........................................................................................................................................... [2.720] The role of the courts ............................................................................................................................................... [2.730]

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[2.10]

[2.10] In this Chapter, the "Act" or "EPA Act" refers to the Environmental Planning and Assessment Act 1979.

This chapter discusses the building blocks that make up environmental law and the processes through which environmental law is implemented. Environmental law has its foundations in both the common law, developed by the judiciary and in legislation or statutes, enacted by Parliaments. Some of the building blocks, such as the law of nuisance which is part of the common law, no longer play a significant role in regulating the relationship between human beings and their environment, but they were an important first step in the historical development of environmental law. On the other hand, the restrictive covenant, another early common law development, which allowed landholders to regulate neighbouring land uses through agreement rather than regulation, has further evolved under the influence of legislation into an important policy instrument for achieving environmental objectives consensually.

Planning law initially emerged through legislative initiatives in urban environments to regulate development. In Australia it has evolved into what is now the lynchpin of environmental law. The core piece of environmental legislation in New South Wales is the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). It operates in both urban and rural environments, not only by facilitating appropriate human development of land and natural resources while mitigating impact on the natural environment, but also by sanctioning incompatible development in sensitive environments to be outlawed altogether. Environmental criminal law directly addresses those whose activities may damage the environment. It may prohibit certain behaviour altogether. But this is relatively rare in an environmental context. Here, as discussed in Chapter 1, the practice is usually to require those who want to carry out activities that will have an impact on the environment to apply for an approval and if they are granted one, to carry out the activity in accordance with the terms of the approval. If they breach those conditions, or go ahead without getting any approval at all, they commit a criminal offence.

Administrative law is addressed to the public officials who make decisions on the preparation and making of plans and whether to grant approvals. Even though legislation allows them a great deal of discretion when it comes to making decisions (see [1.300]), and the courts are wary of becoming involved in usurping this discretion given that it has been granted by Parliament, the courts will nevertheless insist that decision-makers stay within the procedural ground rules set by Parliament and principles established by the common law.

[2.30]

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values. A big breakthrough took place when the courts decided that, in certain circumstances, these private agreements bound not only the original parties to the agreement but also those who subsequently purchased land from them. These devices for restricting land use are known as covenants and easements. They continue to exist today on many land titles, and can still be created by those who want to supplement the land-use regulations contained in environmental plans made by local and State Government. Covenants and easements form part of the basic doctrines of property law, which were devised at a time when governments played little part in planning the use and development of land. However the common law, through covenants and easements, provided the means for private landowners to regulate the use of land by private agreement. Today covenants and easements remain the two areas of the law of property primarily concerned with the planning of land use by private agreement. A covenant is simply an obligation imposed on the owner of land. The law of covenants affecting land governs the enforcement of such obligations by and against persons who were not parties to the original agreement. Under the law of easements a landowner may acquire a limited interest in nearby land owned by another person (see [2.20]; [2.100] below). Common law mechanisms such as covenants and easements have, for hundreds of years, provided a way in which property owners could impose restrictions on land, including on future owners of that land. Often these restrictions were imposed to maintain amenity (for example covenants mandating the use of certain building materials or setting of building lines or setbacks) or provide access (for example easements for provision of utility services and rights-of-way), at a time when statutory planning controls did not exist or were still in their infancy. In more recent decades, government has also used these mechanisms, typically through requiring property owners to execute covenants or easements over their land, often as a condition of gaining statutory planning permission or development consent.

Restrictive covenants [2.30] Typically, a person subdividing land will want to restrict the activities of purchasers on the subdivided lots in order to preserve the amenity of any land retained, or to preserve its value if the ultimate intention is to sell off all the land. This can only be done successfully if:

• the burden of complying with the restrictions placed on the first purchaser also binds future purchasers, and • the benefit of being able to enforce the restrictions passes to purchasers from the original seller.

Covenants and easements

At one stage in the development of the law, it appeared that the courts were prepared to adopt the broad principle that anyone who took title to land knowing there was an agreement relating to its use was bound to comply with it. This has since been rejected in favour of a much narrower approach, aimed at allowing anyone who owns land and sells off part of it to protect the value of the land retained.

[2.20] Most of the provisions dealing with what can and cannot be done on land in NSW are now found in legislation or planning instruments made under the EPA Act. However, long before government became involved in strategic land use planning, private landholders attempted to influence their neighbours' use of land by entering into voluntary agreements with them, or impose restrictions or obligations on their own land, in the interests of preserving their land

Statutory based planning, building and subdivision controls were imposed on land by government during the course of the 20th century. However, the restrictive covenant is illustrative of the proposition that, under common law, restrictions also attach to the user of private property. At law, the restrictive covenant was (and continues to be) an agreement about land use which binds the landowning covenantor who enters into the agreement, as well as the

Planning by private agreement

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convenantor's successors in title, thus creating an enforceable proprietary interest. To this end, the restrictive covenant was utilised in the pre-planning era to achieve planning objectives or to impose built form controls.

[2.80]

• •

Making a covenant binding [2.40) The law in this area is complex. In essence, if both the benefits and the obligations of an agreement are to be binding on current and future owners (to "run with the land") some conditions must be satisfied. The agreement must:

• • •

be known to the purchaser of land burdened by it be intended to restrict the use to which the land can be put even when bought by a subsequent purchaser benefit or protect neighbouring land held by the person who wishes to enforce the agreement and who was intended to have the benefit of it.

chapter 2 Building blocks of environmental law

the easement, restriction or obligation is obsolete as a result of changes in the use of the land benefited, or in the character of the neighbourhood or other relevant circumstances, or if continued, would prevent reasonable use of the land subject to the easement, restriction or obligation, without any practical benefits to those entitled to enforce the easement, restriction or obligation.

A covenant only prevents reasonable use of land if it means that no reasonable use of the land is possible unless the restriction is modified or extinguished (Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke [2008] NSWSC 743). A restriction will not be modified or extinguished simply because it restricts development allowed by a land use plan, such as a local environmental plan (see [3.90]; [3.220]) made under the EPA Act (see, for example, Post Investments Pty Ltd v Wilson (1990) 26 NSWLR 598; Eucalypt Group Pty Ltd v Robin [2003] 2 Qd R 488; [2003] QSC 63 ). Even a planning approval given by a local council does not allow a restrictive covenant to be overridden Uessica Estates v Lennard [2007] NSWSC 1434).

The basic idea is that one landholder has promised not to do something on their land for the benefit of neighbouring land, and that, in the future, purchasers of the benefited land will be able to see that this promise is kept by purchasers of the burdened land. This is what is meant by a restrictive covenant.

In other words, at first sight it seems that the intentions of a land use plan can be thwarted by a restrictive covenant. This raises the broad policy question of how far landholders should be able to tie up neighbouring land uses through covenants.

Examples of restrictive covenants

[2.80) This problem is now addressed by a provision in the EPA Act (s 28(2)) that allows a land use plan made under that legislation to set aside covenants, agreements and regulatory instruments to the extent necessary for development (see, generally, in relation to environmental planning instruments, Chapter 3). The Governor must first give approval for these steps to be taken (s 28(3): see Cha/lister Ltd v Blacktown City Council (1992) 76 LGRA 10). In Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 341 at 348, Pearlman J stated that section 28 was "designed t:o facilitate development and to overcome impediments placed on development so as to avoid sterilisation of land and it recognises that the ultimate regulatory provisions in relation to the carrying out of development lie in the Environmental Planning and Assessment Act".

[2.50] Restrictive covenants still play an important role. Examples include restrictions on:

• the height of buildings on neighbouring blocks, especially for the preservation of views • the number of houses that can be erected on a lot • types of building materials that can be used • the type of fencing that can be erected (if any) • the use to which particular premises can be put (for example, residential only). Positive covenants

[2.60) A positive covenant requires the landholder to do something on their land (for example, carry out management activities such as controlling weeds). In the absence of special provisions in legislation (see below), positive covenants can only be enforced against the original landholder who entered into the agreement. They are not enforceable by and against subsequent purchasers of land. However, covenants expressed in positive terms may still be interpreted as imposing restrictions and, therefore, as being restrictive covenants. The basic question is whether they require anything to be done on the land. If they do, they will not be enforced by the courts as restrictive covenants.

Under planning legislation

In practice, NSW environmental planning instruments generally include a clause that allows the body making the decision to permit development to go ahead even if it is in breach of a restrictive covenant. Under the Standard Instrument Local Environmental Plan (LEP) this is provided by clause 1.9A - Suspension of covenants, agreements and instruments. In this case however, the operation of the clause may, pursuant to s 28(3) of the EPA Act, not extend to certain agreements (many of which are positive covenants), including (cl l.9A(2)):

• • •

Modifying or removing covenants and easements

covenants imposed by a local council instruments under the Crown Lands Act 1989 various agreements under the National Parks and Wildlife Act 1974, Nature Conservation Trust Act 2001, Threatened Species Conservation Act 1995, and Environmental Planning and Assessment Act 1979

Through the courts

•

[2.70) A developer can apply to the Supreme Court under section 89 of the Conveyancing Act 1919 (NSW) for an order to modify or extinguish an easement or a restriction or obligation imposed by a covenant. The grounds on which the court can make such an order include:

For an example of a poorly drafted clause, see Lennard v Jessica Estates Pty Ltd [2008] NSWCA 121. Such problems of drafting, at least as far as LEPs are concerned, have presumably now been overcome by the Standard Instrument.

property vegetation plans under the Native Vegetation Act 2003.

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[2.90]

Restrictive covenants and conservation [2.90] To those who believe that the public interest is best served by government decision making through the land use planning system, private agreements about land use appear as a nuisance. However, covenants could play a more positive role if they were available to non-government conservation organisations, or to government bodies concerned with conservation. Instead of purchasing land, these bodies could ensure its conservation in the hands of private landholders by inducing them to enter into arrangements under which they were paid to manage the land in a particular way. Alternatively, these bodies could purchase land and then sell it off subject to covenants - for example, restrictions on land clearing to preserve wildlife habitats or restrictions protecting buildings of heritage significance. Agreements imposing not simply restrictions but obligations to actively manage land or maintain buildings in a particular way could also play a very useful role.

• •

Two obstacles stand in the way of using restrictive covenants to achieve these objectives: those who wish to enforce a restrictive covenant against future purchasers of the land must retain neighbouring land that is benefited by the covenant (London County Council v Allen (1914) 3 KB 642) the courts will not enforce covenants requiring active management of the land because these are not restrictive covenants (Haywood v Brunswick Permanent Building Society (1881) 8 QBD 403).

New approaches in legislation [2.100] Early legislative initiatives did not deal with these obstacles. Provisions in the National Parks and Wildlife Act 1974 (NSW) permit the National Parks and Wildlife Service, through the Governor, to enter into agreements with private landholders for the creation of wildlife refuges (s 68). These agreements can involve restrictions on the use of land or obligations to do things. They cannot, however, be enforced against people who buy the land from those originally entering into the agreement, as the legislation specifically allows agreements to be terminated at any time by existing or future landholders (s 68(3)(6)).

Covenants and easements under Conveyancing Act Easements under Conveyancing Act, ss 88B and 88K [2.11 0] The Conveyancing Act 1919 (NSW) provides for easements, as well as restrictive and positive covenants, to be created by being included on plans of subdivision or consolidation of land (s 88B). Specifically the provisions require that a plan cannot be lodged with the office of the Registrar General {presently Land and Property Information) for registration unless it indicates any easements, restrictions on the use of land or positive covenants, that are intended to be created burdening or benefitting land comprised in the plan. Easements may be created over land for purposes such as for (s 88A(2A): right of access, repairs, sewage, drainage of water, electricity purposes, services, and water supply. As such, an easement represents a partial interest, or estate, or right over land owned by someone else. Easements may also be created by the Supreme Court of NSW (s 88K). The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective

[2.130]

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use or development of other land that will have benefit of the easement (s 88K(l)) . The Court may make the order if the following conditions are satisfied (s 88K(2)):

• • •

use of the land having the benefit of the easement will not be inconsistent with the public interest, and the owner of the land to be burdened by the easement and each other person having an estate or interest in that land can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and all reasonable attempts have been made by the applicant for the order to obtain the easement but have been unsuccessful.

Covenants under Conveyancing Act, sections 880 and 88E [2.120] Provisions in the Conveyancing Act 1919 (NSW) allow government departments and authorities, and local councils to attach covenants to particular pieces of land, and these can be enforced against subsequent purchasers of the land even where no neighbouring land to be benefited by the covenant is owned by the public body. Under section 88E, these public bodies can enter into voluntary agreements relating to land use with existing landholders. Under section 88D, public bodies can sell land owned by them subject to covenants. Subsequent purchasers of the land will be bound by the covenants. The National Trust has also been given the power under section 88D (National Trust of Australia (New South Wales) Act 1990, s 25), but not other non-government conservation organisations.

Originally, these covenants could only impose restrictions on land use. They could not impose obligations to take active steps to protect the environment. However amendments to the Conveyancing Act 1919 in 1986 now allow both positive and restrictive covenants to be made under sections 88D and 88E (thus modifying the common law position recognising only restrictive covenants) . These amendments were actually designed to facilitate development of land rather than conservation of the natural environment, and the definition of "public positive covenant" in the legislation reflects this (s 87A). Under these provisions, a public authority can, for example, sell off airspace over a railway station or public car park for development, on the basis that the completed buildings will be maintained and insured by successive owners. Or a council or public authority can dispose of land on condition that the purchaser and any subsequent owner will develop it within a certain time, and in accordance with certain standards. However, the definition of "public positive covenant" is expressed simply to "include" these sorts of activities. It is not necessarily meant to be comprehensive. It may also allow other types of positive covenant, such as a covenant requiring land to be actively managed for nature conservation in accordance with a management plan.

Covenants and development consent [2.130] In practice, those granted development consent under the EPA Act (see Chapter 5) are sometimes required to enter into covenants under section 88E as a condition of the consent: for example, a condition requiring registration of a positive covenant to maintain a stormwater detention system (NTL Australia Ltd v Willoughby Council [2000] NSWLEC 244 ).

One advantage of putting a section 88E covenant in place is that it must be recorded on the register and potential purchasers of the land will be made aware of it when they do their searches. They are less likely to become aware of restrictions on land use that are simply attached as conditions of development consent (Fortunate Investments Pty Ltd v North Sydney Council

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[2.140]

(2001] NSWLEC 70). The other advantage is that by registering a covenant, alternative and additional enforcement mechanisms become available (see Conveyancing Act 1919, ss 88F - 88J). Where, for example, a public positive covenant which requires works to be carried out on land is breached, the public authority can enter the land, carry out the works itself and then charge the cost to the person bound by the covenant (s 88F(2)). Alternatively, it can make an application to the courts to compulsorily purchase the land (s 881). However, there is a line of Land and Environment Court authority indicating that only in exceptional cases is it appropriate to require an applicant for development consent to enter into a section 88E covenant as an alternative to simply relying on planning controls (MacDonald v Mosman Municipal Council (1999) 105 LGERA 49; Our Firm Facility Pty Ltd v Wyong Shire Council [2001] NSWLEC 243; Hockitt Pastoral Co Pty Ltd v Great Lakes Shire Council [2007] NSWLEC 514).

Conservation agreements [2.140] Covenants are now being rediscovered as a contemporary tool at the disposal of planners to manage urban growth and other land use change, so as to facilitate the protection of natural and built environment resources such as biodiversity, scenic landscapes, agricultural land and heritage values. For example, provisions are now in place to allow government bodies to enter into voluntary agreements - covenants - with landholders to achieve conservation objectives. These agreements can contain both land-use restrictions and commitments to actively manage the land for conservation.

The NSW Environment Minister can enter into voluntary conservation agreements with private landholders under the National Parks and Wildlife Act 1974 (ss 69A- 69K), and these bind future purchasers of the land once they are registered (see [12.1610]). However these agreements may be set aside under the provisions of section 28 of the EPA Act, discussed above, to allow development to proceed (s 69KA) though, as discussed above, the operation of s 28 may be affected where clause 1.9A of the Standard Instrument is adopted in a local council's LEP. Public bodies can also apply to carry out development in these areas, and the Minister can grant consent where there is "no practicable alternative" or the area is needed "for an essential public purpose or for a purpose of special significance to the State" (s 691(2)). Conservation covenants are integral to the operation of the NSW Biodiversity Banking and Offset Scheme managed by the Office of Environment and Heritage. Usually referred to by its shorthand title of "Bio banking", the scheme was established in 2008 following 2006 amendments to the Threatened Species Conservation Act 1995 which created a new Part 7 A ("Biodiversity Banking"). Biobank sites are formalised by means of biobanking agreements entered into between the NSW Minister for Environment and the owner(s) of the land concerned. A biobanking agreement is a conservation covenant that is attached to the land title (see [12.1620] for more detail). Property vegetation plans made under the Native Vegetation Act 2003 are a further example of recent utilisation of conservation covenants in NSW (see [12.1640]). The Commonwealth Environment Minister can also enter into conservation agreements with landholders under the provisions of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (ss 304 - 312; see [12.1660]).

[2.160]

chapter 2 IBuilding blocks of environmental law

The Nature Conservation Trust [2.150] The Nature Conservation Trust Act 2001 took the further step of setting up a special trust. The Nature Conservation Trust is not a government body (s 9), although it has to get the Environment Minister's approval for its business plan (s 24).

The Trust's objectives include protecting and enhancing natural heritage by: encouraging landholders to enter into co-operative arrangements for the management and protection [of private land] that is significant for the conservation of natural heritage (and any cultural heritage that is associated with natural heritage (s l0(a)). "Natural heritage" includes ecosystems and ecosystem processes and biological diversity (s 3). The Trust can enter into, monitor and enforce a new type of voluntary conservation agreement known as a trust agreement (Nature Conservation Trust Act 2001, s 11(2)(e) and Part 3: see [12.1630]). Trust agreements can (s 33):

• • •

impose land-use restrictions require the Trust or the landholder to carry out active management, such as weed control provide financial, technical and other assistance to the landholder under the Trust's Stewardship Program.

However the agreement only binds future purchasers if the landholder consents to it being registered (s 37). Trust agreements are enforceable in the Land and Environment Court, although damages cannot be awarded unless the breach was intentional or reckless (s 38). But once again, they may be overridden so to allow development to proceed, by resort to the provisions of section 28 of the EPA Act, discussed above (s 38A). The Nature Conservation Trust also operates a revolving fund scheme (ss 7, 11(2)(a)) under which it purchases high conservation value private land, registers a protective covenant on the title and then sells it off, using the proceeds to purchase other land.

The law of nuisance [2.160] Restrictive covenants begin their lives in voluntary agreements, although they have the effect of regulating the use to which future purchasers can put the land. In the absence of agreement, the common law, through the law of nuisance, regulated land uses in order to ensure a minimum level of amenity at a time when land was used in a haphazard fashion according to the dictates of the marketplace. Because conflicts about land use arising from such things as noise, smells and air pollution had not been anticipated and avoided by strategic land use planning, the question was usually whether anything could be done about them after the event. Even now land use planners are by no means immune from mistakes. In one famous English case, residential development was allowed next to a cricket ground, with the result that householders had cricket balls landing on and damaging their property, giving rise to nuisance proceedings (Miller v Jackson (1977) 1 QB 975).

The law of nuisance continues to offer remedies - injunctions and damages - to people who are prepared to take civil (rather than criminal) action against those causing certain forms of

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harm. The fact that development has been approved under normal land use planning procedures does not normally exempt it from the law of nuisance, a position recently affirmed by the NSW Court of Appeal in Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514; [2013] NSWCA 382. A useful definition and synopsis of the legal principles relating to nuisance is presented in Gales Holdings, with the Court stating [at 131-321] that: A nuisance is either a continuous or recurrent state of affairs. An occupier of land will be liable for continuing a nuisance if, with knowledge or presumed knowledge of the state of affairs, the occupier fails to take reasonable steps to bring it to an end despite having had ample time to do so (Hargrave v Goldman (1963) 110 CLR 40 at 59-61; [1963] HCA 56) ... Nuisance is a wrongful interference with another's enjoyment of land by the use of other land occupied or owned by the alleged wrongdoer ... [However] there must be more than mere harm being done to another's enjoyment of land. The harm must be caused by the alleged wrongdoer's use of its own land. The word use connotes that a degree of personal responsibility is usually required, even though a deliberate or negligent act is not. A deliberate or negligent act will however be sufficient. A balance must be maintained between an owner or occupier's right to do what it likes with its land and a neighbour's right not to be interfered with. The proper test to apply in most cases is what is reasonable, according to the ordinary usages of a particular society. While negligence is not essential, fault of some kind is almost always necessary (Elston v Dore (1982) 149 CLR 480 at 487-488; [1982] HCA 71).

Limitations of the courts [2.170] There were and are obvious limits to the law of nuisance. The courts cannot reorganise an entire area to remedy problems arising from conflicting land uses. Individual litigants have to bring problems to their attention. Apart from the fact that the courts do not have the expertise or the resources to plan land use for large areas, their sole concern is with resolving the dispute between the parties to the litigation. The burden of proof is on the party alleging the nuisance to prove that it exists on the balance of probabilities (the standard of proof in civil actions). Where the proceedings are brought in an attempt to prevent a nuisance from being caused in the first place (quia timet proceedings), the standard of proof is even higher (see Kent v Johnson (1973) 21 FLR 177: see [2.220]).

The courts do not have the halfway house, available to planners, of rezoning land while protecting existing uses (see [1.280]). The only responses they can make are:

• to order one party to pay compensation to the other • to order a party not to engage in the harmful activity • to order a party not to engage in the harmful activity, but suspend the order to allow it to put its house in order • to decide not to intervene.

The courts are prepared to intervene in these situations only if damage has been caused, or is likely to be caused unless action is taken to prevent it. In the context of nuisance, the notion of damage has been interpreted quite liberally. It includes not only injury to property but also interference with pleasure, comfort and enjoyment. But it does not include interference with the enjoyment experienced by those viewing a particular landscape (Kentv Johnson (1973) 21 FLR 177).

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The rules about who can sue and in what circumstances are very technical and further limit the usefulness of the law of nuisance as a technique of environmental management.

Private nuisance [2.180] The law makes a distinction between public and private nuisance. A private nuisance is an unreasonable interference with the use and enjoyment of land. Private nuisance had its origins in a concern to protect occupiers against interferences with the use of their land. Consequently, in Halsey v Essa Petroleum Co Ltd (1961) 2 ALR 145, the court held that damage to a car parked on the road outside the plaintiffs' house, caused by acid smuts from the defendant's factory, could not amount to a private nuisance. On the other hand, damage to the plaintiffs' washing in their backyard did.

The essential aim of the law of private nuisance is to protect the value of land, not to encourage effective environmental management. The law seeks to balance the conflicting demands of neighbouring occupiers to use their land as they wish and in accordance with what they see as their private property rights. Damage in the form of personal discomfort caused by smells and noise is downgraded in comparison with physical damage to property. The rule is that in determining whether interference with personal comfort amounts to a nuisance, the nature of the area must be taken into account - for example, is it an industrial area? This issue does not arise where injury to property occurs (see St Helen's Smelting Co v Tipping (1865) 11 ER 1483).

Case study: Environmental management and the law of nuisance [2.190] In some situations, the law of nuisance can have a positive effect on environmental management. In Van Son v Forestry Commission (1995) 86 LGERA 108, the court found that the Forestry Commission's work on a haulage track, and subsequent logging activity, was a substantial and unreasonable interference resulting in discomfort in the plaintiff's use of land. The Commission's activities had resulted in the siltation of a creek and the pollution of a pond, the plaintiff's only source of water for domestic purposes, garden and stock. Consequently, private nuisance had been established. Justice Cohen found that, in spite of the enactment of NSW legislation relating to the management of water resources, riparian owners retained their residual common law right to use and take water for domestic purposes, without sensible alteration in its character or quality. Water quality continues to be protected under the common law doctrine of nuisance. Although the Forestry Commission raised the defence that it was authorised to carry out the work by legislation, Justice Cohen held that this defence is only available if statutory powers are exercised without negligence. [2.200] For a recent review of the law of private nuisance by the Chief Judge of the Land and Environment Court, see Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152. See also Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514; [2013] NSWCA 382.

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[2.220]

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Public nuisance [2.210] A person whose occupation of land has not been interfered with may still be able to

Intrusion on the landscape?

bring an action in public nuisance. A public nuisance is one that materially interferes with public health, safety, property, enjoyment or comfort. For example, excessively noisy quarrying operations in a quiet residential area or smells caused by boiling offal on a poultry farm may amount to a public nuisance. In Baulkham Hills Shire Council v Domachuk (1988) 66 LGRA 110, it was held that smells and flies from a mushroom composting operation could amount to a public nuisance.

One line of argument centred on the suggestion that the tower would permanently disfigure the natural skyline of Canberra. The court could find no previous instances of interference with such an amenity being regarded by the law as a nuisance. It also considered such matters as being more appropriately dealt with in the planning context. It had heard a number of witnesses taking opposing positions on the aesthetic quality of the tower, and clearly felt that it was inappropriate for a court of law to espouse one particular value position so openly and obviously. (See also Bathurst City Council v Saban [No 2) (1986) 58 LGRA 201, where it was held that unsightliness alone does not amount to nuisance.)

The origins of public nuisance lie in the criminal rather than the civil law. Nowadays, for a private individual to bring a civil action in public nuisance, there must be evidence that they have suffered special damage over and above that suffered by the public as a whole. For example, the plaintiffs in Halsey v Esso (see [2.180]) did succeed in an action in public nuisance for the damage caused to their car. In the absence of evidence of special damage, the only alternative is to attempt to persuade the Attorney-General to bring an action as a representative of the public, or at least to consent to an action by private individuals, with a view to securing an order preventing continuation of the activity.

Case study: Black Mountain Tower [2.220] The difficulties involved in seeking remedies through a nuisance action are· illustrated by the litigation that followed the decision to construct a multi-purpose communication tower, as well as tourist and restaurant facilities, on Black Mountain, near Canberra (Kent v Johnson (1973) 21 FLR 177). There was ample opportunity for the issues to be dealt with in a land use planning context, and one of the main points made by those opposing the tower's construction was that the relevant planning procedures had not been fully complied with. But their more general frustration with the planning process was revealed by their attempt to argue, in addition, that the tower would constitute a nuisance.

What the objectors had to prove

The objectors were not in a position to show that occupation of their land would be interfered with in any way by the tower and, therefore, they had no action in private nuisance. Nor were they able to show that they had suffered special damage, so as to permit a private action in public nuisance. As a result, the first thing they had to do was to persuade the Attorney-General to bring the action formally, even though they would in fact be the ones conducting it. This they eventually managed to do. The court was prepared to accept that there would be a public nuisance if construction of the tower involved a substantial, harmful, unlawful interference with land used and enjoyed by members of the public. This was the anthropocentric or human-centred framework within which the debate was to be conducted. There was no room for argument based on the need to preserve the natural environment as an end in itself. The issue revolved around how the environment should be exploited by human beings. Even the focus on human needs was a short-term one, framed in terms of recreation rather than the future benefits to humans that might arise from the conservation of biodiversity (for example, new medicines from plants).

Disturbance to the land?

A second line of argument focused on physical disturbances to the land resulting from construction of the tower. One of these involved the use of an old quarry pit as a soil dump for a period of two years. Within its frame of reference, the court did not regard this as constituting a substantial interference with public enjoyment of the park, not only because this particular area was not well endowed with native flora but also because there was no evidence that anybody visited it. Threats to biodiversity?

More significantly, it was argued that disturbance of the soil would contribute to the spread of a fungal disease that attacked trees and other vegetation. Here the court had to feel its way through a maze of scientific evidence relating to the extent of the likely impact. Once again it decided, after examining the nature and extent of the soil disturbance involved, that there would be no substantial effect on public enjoyment of the park. One comment here is particularly significant. Although there was no evidence that those parts of the park of particular interest to botanists would be affected, the court expressed doubt as to whether this would have amounted to a public nuisance even if there had been such evidence. Although it is not necessary to show that everybody would be affected by a nuisance for it to be classified as public, the particular people affected must amount to a substantial group and not constitute merely a minority interest. Another argument was based on the fact that the presence of the tower would attract increased numbers of visitors to the reserve. This would result in the increased importation of seeds of exotic species of plants into the reserve, and increased damage to vegetation and ground because of the greater number of people walking around. Once again the argument was rejected. The only way in which it could have succeeded would have been if the court had been convinced that the resulting changes to the reserve would have materially interfered with public use and enjoyment. But this would have involved the court in accepting that such interference could result from too many members of the public seeking to exercise their right of weekend enjoyment. Arguments based on the need to protect the environment from too enthusiastic a public could not have succeeded, given the anthropocentric legal framework in which the case had to be conducted.

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Traffic problems

There was only one ground on which the court was prepared to find that there was a public nuisance. This was that the existing road facilities could not cope with the increased amounts of traffic generated by the existence of the tower, with the result that members of the public would be seriously inconvenienced in exercising their right to use and enjoy the park. It is ironic that a state of affairs that would have actually reduced the attraction of the tower (and thus would have helped protect the natural environment by limiting the number of people visiting the reserve) was the only aspect of the construction that the court held amounted to a public nuisance. This "problem" was eventually solved by traffic control arrangements, and the tower was built.

Nuisance and pollution [2.230] Pollution control is the main area where the courts have played an active role through the law of nuisance. Issues range from quarrels between neighbours about noise, to clashes between industry and nearby residents about industrial pollution. The outcome is always uncertain: the court must balance one person's right to use their land for their own purposes against another's right to reasonable enjoyment of their land or the public domain. The role of the law of nuisance is more limited where water pollution is involved. Cases usually only come to the attention of the courts if:

• there is damage to the foreshore occupied by a private individual, giving rise to an action in private nuisance • water is being extracted for use on land (see Van Son, [2.190]) • flow of water onto land, specifically directing the flow of stormwater runoff onto land (see

[2.260)

offensive noise to bring proceedings in a Local Courts to obtain a noise abatement order (see [9.2120]). This makes resort to nuisance proceedings an increasingly unattractive option. Nevertheless, in certain situations they can still be a useful tool for those concerned to reduce the polluting impact of activities.

Planning Objectives of planning [2.250] Planning legislation in NSW has evolved from British town planning legislation, which emerged as a result of post-industrial urban reform. This legislation had its origins in a concern to address the squalid conditions of burgeoning British urban centres from the late 18th century onwards. The focus was on public health and amenity in urban environments. The role of town planning was to create a better physical environment in our towns and cities by providing people with pleasant structures in which to live and work, and adequate recreational facilities, including open space. The belief was that physical surroundings were major determinants of both social behaviour and personal satisfaction. By improving them, it was thought that we would improve people's behaviour and happiness. Only with the enactment of the NSW Environmental Planning and Assessment Act 1979 (EPA Act) was the potential created for the urban planning system to become seriously engaged in rural land use issues, and environmental issues more generally. This legislation, interacting with threatened species and other environmental legislation, is now the primary vehicle for conserving ecosystems on land in private ownership. It also has a vital role to play in ensuring that polluting development is appropriately located. The objects of the Act (s 5) include encouraging:

• the proper management, development and conservation of natural and artificial resources,

Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514; [2013] NSWCA 382)

• a person can show that they have suffered special damage over and above that suffered by the public as a whole (the basis of an action in public nuisance).

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•

including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment (s 5(a)(i)) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats (s 5(a)(vi)), and

Legislation and pollution control

•

[2.240] The law of nuisance has now lost much of its relevance in the field of pollution control because of legislation that attempts to take a systematic approach to such problems (see Chapter 9). Instead of relying exclusively on individual members of the community to take the initiative in bringing pollution problems to light, the legislation (primarily the Protection of the Environment Operations Act 1997) provides for the NSW Environment Protection Authority and local councils to play the major role in both prevention and enforcement.

Plans may be made for achieving these objects (see Chapter 3 ). In some cases, they must be preceded by environmental studies that examine both the physical opportunities and constraints of the area (for example, existing land uses, slopes and threatened ecosystems), and also its socioeconomic character, including such factors as the needs of different groups of people in the area, viewed in the light of current social and economic imperatives.

Nothing in the pollution legislation says that people cannot continue to bring actions for nuisance. However, the courts can award compensation for damage to property in criminal prosecutions under the pollution legislation (see [9.1920]), and the public have broad rights under this legislation to bring civil proceedings to obtain restraining orders (see [9.2060]). The legislation also allows individuals claiming that their occupation of premises is affected by

ecologically sustainable development (s 5(a)(ii)).

Example of strategic planning: increasing industrial use [2.260] Suppose an area is under pressure to expand in the industrial sector, and current plans do not allow for this.

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On one level, environmental planners will want to examine the physical nature of proposed sites and their existing uses. Are they flood-prone? Are threatened species or ecological communities present? Will the development involve the loss to agriculture of fertile rural land? What will be its impact on any outstanding natural features? Then there is the question of whether existing services can meet industrial demand for such things as water and electricity. What will be the effect on traffic flow, noise levels, and air and water quality? What are its social impacts, and effects on cultural (Indigenous and European) heritage? On another level, the planners will want to know whether employees are likely to be attracted from within the area or whether they are likely to come from outside. If they are to come from inside, the planners will want information about whether there is an untapped pool of labour that has the required skills, or that industry is prepared to train to the required standard. If not, there is the risk that higher wages might draw people away from their existing employment in fields vital to the social and/or economic needs of the community. If labour is to be brought in from outside, the planners will need a detailed analysis of the position with regard to housing and community facilities, such as education, health and recreation. Questions such as these may have implications beyond the local level, requiring consideration in terms of regional or even State policy. There may, for example, be a policy to attract industry to areas of the State where unemployment is particularly high, or to attract particular kinds of industry. For this reason, environmental planning must proceed at these levels, as well as the local one. The environmental planner recognises that all the choices in relation to the structure of our physical environment are interrelated. A decision made in a particular context may have an unanticipated effect in another. So, for example, moves to encourage the expansion of industry in a particular area may result in making the existing residents poorer if, in practice, the new industry attracts better qualified labour from outside. The newcomers will put pressure on limited existing resources, but will be in a better position to secure them if they are better paid. A good example is housing. Shortage of affordable housing and pressure on other facilities may, in turn, result in increased demands on the social welfare system, for accommodation, counselling and childcare. Planners try to arrange human use of land so that it makes sense in terms of competing social, economic and environmental considerations. The alternative to some form of regulatory system would be to leave allocation of land uses to market forces, with the result that land would be used in such a way as to maximise net return over a foreseeable period of time. No coordinated attention would be given to the overall balance of land use in the community, and the interactions between land use and social and economic factors. Protection of the natural environment would receive a very low priority in the marketplace.

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obtained. The local council would then have the task of deciding, on the facts of each case, whether the proposal should be allowed to go ahead. Under such a system, there would be no general legally binding restrictions on the type of activity that can take place in any particular area. For example, there would be no legal provisions ensuring that industrial development is excluded from residential areas. In practice, planners would have a strategic plan relating to the future shape of the area, and they would use this to guide their recommendations in individual cases. But strategic planning of this kind does not necessarily have to take the form of legally binding documents. The focus of the law in this version of a planning system would be on the case-by-case assessment of particular projects (project control), rather than on strategic planning. The advantage of this sort of approach is its flexibility. It acknowledges that in practice it is extremely difficult to predict future movements in the demand for land for different purposes, and equally hard to anticipate the likely reaction to these demands by those with the responsibility for making decisions. It allows planners to adjust their strategic plans to take account of changing values in the community (for example, a growing preference for inner-city living), without having to go through any elaborate legal plan-making procedures. Assumptions and predictions can be constantly revised in the light of cold, hard facts. Moreover, under this system, strategic planners would not have to express their intentions in the precise language that the law demands. The problem with this approach is its uncertainty. Ideally, developers want to be in the position of knowing well in advance where particular types of development are likely to be approved, and where there is no point at all in making an application. They also want to avoid expensive delays. In addition, a flexible system of this kind means that land values will be in a state of flux. If land can be used in a number of different ways provided that the consent of a particular body is first obtained, the value of that land depends on which use eventually receives approval.

Legally binding strategic plans [2.280] At the opposite extreme, we could imagine a planning system based on legally binding plans made in accordance with legal procedures which allocated land uses to particular areas, and prohibited them in others. Those seeking to carry out development would know exactly where development of that type could be carried out. There would be no need to seek any further approval, excluding the exercise of any subsequent discretion. There would be no role for project control.

The problem with this approach is its rigidity. In addition, it fails to provide for the proposal to be adapted to the specific site through a detailed process based on an application to carry out a particular development and careful consideration by the decision-maker, such as a local council. In the real world, we will not find such a planning system in operation.

The role of law in the planning system Planning in NSW Deciding case by case [2.270] At one extreme, legislation might simply provide that before any change of land use or development can take place, the permission of the local council, advised by its planners, must be

[2.290] In practice, the NSW environmental planning system developed under the EPA Act falls somewhere between the two extremes outlined above (see Chapter 3 for a detailed discussion). It relies on three principal techniques to regulate land use: zoning, development consents and development standards.

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Zoning [2.300) In the legally binding strategic plan - or "statutory" plan - different land is allocated to different zones indicated on a map of the relevant local area. Land use tables, contained in a written document, set out the various purposes for which land may or may not be used or developed in each zone. Plans offer a degree of predictability to owners, developers and conservationists. They prohibit development for quite unacceptable purposes in a particular zone (for example, heavy industrial development in a residential zone), or, at the other extreme, they may permit development for certain purposes without the need to get any further approval (for example, home occupations in some residential zones). At the same time, plans provide flexibility to the extent that they permit development of land in a particular zone for a range of purposes spelt out in the zoning table, provided that approval (development consent) is first obtained from the relevant authority. One question that can often arise is: into which category does a development proposal fall? For example, is it permissible or is it prohibited? This raises the issue of how the particular development should be classified under the terms of the plan. If development of the type proposed is prohibited, then it would be unlawful for the decision-maker to give approval.

Case study: Classifying development [2.310) In Cranbrook School v Woollahra MC (2006) 66 NSWLR 379; [2006] NSWCA 155, the issue was whether the Council could consider a private school's application for development consent to build a junior school on land which it had purchased adjacent to its existing facilities. The land on which the existing facilities were located was zoned "special uses - school". The recently purchased land was zoned "open space". In this zone, "community facilities" along with such things as recreation facilities and utility installations were permissible with consent but other uses were prohibited. The Court of Appeal, after carefully interpreting the plan, held that a school fell within the definition of community facilities: it was "a building or place owned or controlled by ... a body of persons associated for the physical, social, cultural, economic, intellectual or religious welfare of the community ... ". The result was that the matter went back to the Council to decide whether to give development consent to this particular proposal on this particular piece of land. This was a matter for the Council's discretion (see below). In Caltex Oil (Australia) Pty Ltd v Holroyd Municipal Council (1983) LGRA 77 it was argued that a convenience food store attached to a service station was not a separate use of the land as a shop (which was prohibited) but fell within the use of the land as a service station (permissible with consent). In support of this, it was suggested that planning purposes evolved over time in response to social changes, and that this should be reflected in adjustments to the definitions. Justice McClelland rejected the argument, emphasising that "an evolution in public habits does not transform the meaning of language". The convenience food store was classified as a shop, which was prohibited. Therefore, the Council could not legally exercise discretion to grant consent. The correct approach to dealing with the situation was

to amend the law by changing the plan. The approach now taken in more recent plans (including the Standard Instrument LEP) is to define service station expansively to include "the ancillary retail selling or hiring of general merchandise or services or both". [2.320) The initial issue in these cases is whether the facts fit a legal concept. The plan-makers have decided, for example, that certain types of development should be absolutely prohibited on certain sites. They have attempted to define these types as precisely as possible and their intentions must be implemented. This is simply a matter of interpreting the definitions in the plan and deciding whether a particular activity falls within one definition rather than another. It is a question of definition not discretion. Ultimately, it is a question of law for the courts. The answer to it determines whether there is any discretion to be exercised.

Development consent [2.330) An approval required under a plan in NSW is known as development consent. The decision on whether or not to grant consent, and the terms (conditions) of the consent is ordinarily made by a local council, the Planning Minister, other relevant consent authority or, in certain circumstances, the Land and Environment Court on appeal. While a statutory plan indicates that development for specified purposes (for example, industrial or residential) is generally appropriate within a particular zone, the decision on the precise contours of the development is delegated to the local council, the Planning Minister, or other consent authority exercising discretion (see [1.300]) in response to particular proposals made by developers.

In reaching a decision on a development application, the legislation instructs the decisionmaker to consider a range of factors set out in section 79C(l) of the EPA Act (see [5.1180]-[5.1490]). These include:

• the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality • the suitability of the site for the development • the public interest.

In any particular case, it is for the decision-maker to decide how much significance or weight to give to each consideration. It will usually have to resolve situations where some factors suggest that development should go ahead while others suggest that it should not. Different decisionmakers may decide that different factors are more important. A controlling majority of a local council elected on a pro-development ticket will weigh the beneficial social and economic impacts of development as compared with the harmful environmental impacts very differently to a "green" council. There is nothing in the EPA Act that suggests that the decision-maker must somehow strive to give these competing factors equal weight or to give an objective decision. One of the issues that has arisen is whether, when a plan provides that development for a particular purpose is permissible provided that development consent is first obtained, there is a presumption that some version of that development will be approved (albeit subject, perhaps, to stringent conditions). This issue arises in situations where plans have at some time in the past zoned a particular area for development (for example, subdivision), and more recently it has been

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discovered that the area is environmentally sensitive. In BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399, the Chief Judge of the Land and Environment Court stated: In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) [1971] 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted (at [117]). However, he then went to add that: there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project. (at 119)

Development standards [2.340] The third statutory planning device used by planners in NSW is the development standard (see [3.170]-[3.190]). Development standards are provisions in plans that lay down particular requirements that must be met by particular kinds of development. Standards may be framed in numerical terms (for example, the floor space of a particular type of building must not exceed a certain proportion of the area of the site, or blocks on which certain kinds of buildings can be erected must not be less than a particular area or width). They may require compliance with a specific condition. They may even demand the provision of particular facilities in conjunction with certain kinds of development (for example, loading and unloading facilities). In practice, the types of development standards currently contained in LEPs are prescribed by the Standard Instrument LEP (see [3.100]).

Administrative law Merit appeal and judicial review Merit appeal [2.350] A right of appeal on the merits of a proposal exists only where it is specifically provided by legislation. Where legislation provides for merit appeal (also known as administrative appeal or review), the appeal body reconsiders the detailed pros and cons of a particular proposal and substitutes its own discretionary decision for that of the original decision-maker. The availability of a merit appeal places a considerable restriction on the discretion of the decision-making capacity of the body making the original decision.

Environmental legislation often provides a right of merit appeal to those applying for an approval where it is not granted or the conditions attached are unacceptable to them. The Land

[2.360)

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and Environment Court has a substantial merit appeal jurisdiction (see [2.730]) . In determining appeals, the legislation, in essence, tells the Court to act in the place of the original decision-maker, such as a local council. This puts the Court in a difficult position when it is hearing merit appeals from heavily politicised local councils. For example, if a majority of councillors on a particular local council are elected on a platform that includes a commitment to restrict new development, decisions of the Court favouring development are alleged to interfere with the political relationship between the council and its constituents. Many local councillors argue that the Court should not be able to override decisions made by popularly elected representatives. However, in other situations, councils try to use the Court to deliberately avoid making politically controversial decisions on applications for development consent by not determining an application and thus triggering an appeal on the grounds of deemed refusal of consent. Sometime legislation provides a right of merit appeal, but to another appeal body, not the Land and Environment Court. For example, under the Heritage Act 1977, appeals from decisions by the Heritage Council to refuse applications involving items protected by heritage orders are to be made to the Minister responsible for that legislation (see [17.360]). Where an initial decision is made to grant an approval, legislation rarely provides a right of appeal on the merits to those who are aggrieved by this decision, such as neighbouring landowners or conservation groups. Where such a right of appeal does exist, it is usually referred to as a third-party appeal.

Judicial review [2.360] If legislation makes no provision for a third-party appeal and the body making the initial decision decides to grant consent, there is no way of having that decision reviewed by the courts except by applying for judicial review. There may be a volume of opinion that a decision to grant consent is a poor decision, but there is very little that an aggrieved citizen can do about it, unless the courts can be convinced in an application for judicial review that it is not simply a poor decision but an invalid one. Judicial review proceedings are usually a last resort for objectors where legislation does not provide them with a right of merit appeal.

In judicially reviewing a 8ecision, the courts play a much more limited role than merit appeal bodies. Judicial review is not concerned with whether a decision is a good or bad one but rather:

• whether decision-makers had any power to make the decision in the first place • if they did, whether they followed the correct procedures in arriving at the decision.

In judicial review proceedings, the courts are supervising the decision-making process rather than trying to ensure that decisions are "good" decisions. They are not concerned with the merits of the proposal. So, for example, local councils can quit'e legitimately make "development-at-all-costs" decisions, provided that they comply with their legal obligations to at least consider environmental impact (see below) . As Justice Moffitt put it in Parramatta City Council v Hale (1982) 47 LGRA 319, before an inference can be drawn that a council has failed to take relevant factors into account: there must be displaced for example a view that the decision, even an unwise one, was come to on the basis that the merits of the development and the burden which would be

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placed on the developer if required to m1t1gate the harm to the environment were considered to outweigh protecting the environment, after the relevant matters had been taken into consideration.

Case studies: A legitimate expectation? [2.390] In Country Energy v Williams (2005) 63 NSWLR 699; [2005] NSWCA 318, the NSW Court of Appeal pointed out that there were two separate issues: was consultation required, and if so, what level of consultation? In that case, Mr Williams argued that the Director-General of the Department of Environment and Conservation failed to afford him, as an interested Aboriginal person, procedural fairness in consenting under the National Parks and Wildlife Act 1974 to the destruction of Aboriginal objects in the course of the construction of an electricity transmission line. Prior to the grant of consent, Country Energy had engaged a consultant to carry out a survey to identify relevant Aboriginal objects which might be affected by the proposed development. The issue was whether Mr Williams had a right to participate in the survey. The Court of Appeal doubted whether the facts gave rise to a legitimate expectation by Mr Williams that he would be consulted in this way:

If an application for judicial review is successful, the decision challenged is simply declared invalid. The reviewing court does not substitute a decision on the merits favourable to the applicant. Where the court decides that the body making the decision had no power to make that decision, then that is the end of the matter. If, on the other hand, it concludes that the decision-maker had the power but did not exercise it in a procedurally correct fashion, the decision-maker still has the opportunity of deciding the matter again - this time following the correct procedures. The eventual decision on the merits may be the same, with the decision-making process merely being adjusted to take account of the court' s conclusions. There is nothing unlawful about this (see the discussion of Parramatta City Council v Hale (1982) 47 LGRA 319 at [2.430]). In practice, however, the decision-maker might find it politically extremely difficult to come to the same conclusion. In the field of environmental law, moreover, one reason for requesting judicial review is sometimes the tactical one of causing delay. For a developer, a delay of a few months can often mean the difference between a profitable and an unprofitable venture.

• •

Grounds for judicial review

•

The Policy was not publicly available.

There was no clear evidence that Mr Williams had a traditional connection or historical association with the proposed transmission line corridor.

Even if it had been found, however, that Mr Williams had a legitimate expectation that he would be involved in an inspection of the whole corridor prior to the giving of any consent to destroy Aboriginal objects, it did not follow that the consent to destroy would be invalid unless that expectation was met. He did not have a right, merely an expectation, and this had been satisfied by giving him an opportunity to make his case for participating in the survey even though his request was ultimately turned down.

Where there was no opportunity to be heard [2.380] One argument might be that the decision-maker has failed to comply with rules of procedural fairness, legitimate expectation or natural justice by not giving someone an opportunity to present their case. The first issue is whether some form of consultation is required. Consultation may be expressly required by legislation. Alternatively, the courts might find that an opportunity for consultation can be implied from the legislative context. In the High Court case of Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57, Chief Justice Mason, and Justices Dean and McHugh, stated: ·

Another possibility is that the decision-maker might have adopted a public statement or practice of consulting stakeholders, building up their expectations.

While the National Parks and Wildlife Service Cultural Heritage Community Consultation Policy on which he relied pointed to the need to consult with relevant and interested Aboriginal people in the identification of their heritage, it did not commit to involving them at the level of detailed survey work.

• There was no evidence of practice in relation to the Policy.

[2.370] On what grounds will a court be prepared to declare a decision invalid? A comprehensive survey is not possible here, but some of the most relevant grounds of intervention in an environmental context are discussed below.

It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment. (p 167)

chapter 2 Building blocks of environmental law

[2.400]

See also Vammeld Pty Ltd v Fairfield City Council [1999] 46 NSWLR 78; Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [2008] NSWCA 356; Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213.

Where the decision-maker exceeds or misuses their powers [2.400] Another basis on which the courts will intervene is that the decision making body has exceeded its powers, misunderstood them or, more likely, exercised them improperly. It might, for example, be alleged that the decision maker has abused its discretionary powers in some way, such as by:

•

creating an apprehension by a fair-minded lay observer that they might not bring an impartial mind to decision making (apprehended bias), for example, by prejudging an issue so as not to be open to persuasion (McGovern v Ku-ring-gai Council [2008] NSWCA 209;

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[2.410]

Gwandalan Summerland Point Action Group Inc v Minister for Planning (2009) 75 NSWLR 269; [2009] NSWLEC 140; CPT Manager Ltd v Broken Hill City Council [2010] NSWLEC 69)

• acting without evidence or simply complying with somebody else's instructions, instead of reaching a decision independently • basing a decision on a predetermined policy rather than examining the facts of the particular case (Corkill v Hope (1991) 74 LGRA 33) • considering irrelevant factors (Gwandalan Summerland Point Action Group Inc v Minister for Planning (2009) 75 NSWLR 269; [2009] NSWLEC 140) • failing to consider relevant factors (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40.

Allegations such as these, particularly the last, are likely to form the basis of challenges by objectors to decisions made by environmental decision-makers in situations where there is no right of third party merit appeal for those objecting to a development.

Relevant considerations [2.41 OJ The factors that a decision-maker must consider before reaching a decision are frequently spelt out clearly in legislation, for example, section 79C of the EPA Act (see [2.330]). This requires the decision-maker to take into account not only the likely environmental impact of a proposal but also social and economic impacts in the locality. In addition, it must consider the public interest, and it has been held by the courts that this includes the principles of ecologically sustainable development (ESD). This requires "the effective integration of economic and environmental considerations in decision-making processes" (see [1.190]-[1.230]).

However, there is nothing to prevent legislation defining the relevant factors that the decision-maker must consider more narrowly. For example, Commonwealth legislation, the World Heritage Properties Conservation Act 1983, which has since been repealed, provided that:

In determining whether or not to give a consent .. ., the Minister shall have regard only to the protection, conservation and presentation ... of the property. (s 13(1)) See Friends of Hinchinbrook Society Inc v Minister for Environment (1997) 77 FCR 153. This would have prevented the Minister from taking economic factors into account. Compare this with the provisions of the Heritage Act 1977 (NSW), which make it clear that the Heritage Council, in deciding whether or not to recommend listing of an item on the State Heritage Register, must consider whether the listing would render it incapable of reasonable or economic use, and whether it would cause undue financial hardship to the owner (s 33(4)). Where legislation is silent on the question of what factors must be considered, they must be deduced from the subject-matter, scope and purpose of the legislation.

Case study: Key principles of administrative law [2.420] In Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc

(2014) 86 NSWLR 527; (2014] NSWCA 105, the NSW Court of Appeal had to consider key principles of administrative law, including the issues of relevant considerations and discretion. The Court's deliberation on the weight to be given a

[2.420]

chapter 2 Building blocks of environmental law

mandatory or relevant or consideration in an administrative decision was couched in terms of whether it was a "focal point" or "fundamental element" to the decision (R v Hunt; Ex Parte Sean Investments Pty Ltd (1979) 180 CLR 322 followed, where Mason J introduced into the field of relevant considerations the notion of something being a "fundamental" or "focal" consideration). The matter involved an appeal against the decision of the Chief Judge of the Land and Environment Court upholding a third party merit appeal against the approval given by the Minister for Planning under the former Part 3A of the EPA Act to an extension of the existing Warkworth open cut coal mine in the Hunter Valley. The Director-General's environmental assessment report had to be considered in determining whether to approve a Part 3A project application. The report was one of three mandatory considerations (EPA Act, s 75J(2)(a)), but the only one relevant to this project. Warkworth contended that the Minister, through his delegate the Planning Assessment Commission, gave the requisite weight to the report, but that his Honour failed to do so. There was no question that the Director-General's report had to be considered (s 75J(2)(e) required that). However, Warkworth and the Minister contended thats 7 5J(2)(a) required that weight be given to the report- and its recommendation for approval of the mine - as a fundamental element or focal point in the decision making process: see Zhang v Canterbury City Council (2001) 51 NSWLR 589. The Court found that it was apparent from his Honour's reasons that he engaged in "an active intellectual process" when considering the material presented to him, including the Director-General's report: Tickner v Chapman (1995) 57 FCR 451 at 462. However, his Honour was not required to make this report a fundamental element or focal point of his determination, with the Court stating (at [230]): We do not agree that the legislation operates in the way contended by Warkworth and the Minister. In the first place, there is no statutory requirement that the report contain a recommendation as to approval, even though in the way that the executive arm of government operates that would be expected. More importantly, however, there is much more in the Director-General's report for a given proposal than the Director-General's recommendation. There will be a vast body of material including technical and expert reports, sometimes presenting contrasting views and submissions from opponents and supporters of the proposal. That material must be considered by the Minister as required by the legislation. The Minister is not bound to implement the Department's recommendation. The decisionmaker still retains ultimate discretion: see Walkerville v Adelaide Clinic Holdings (1985) 38 SASR 161. The Director-General's report must be considered, but to say that the Department's view must be given prima facie weight by the Minister would serve to place a constraint on the Minister's decision-making task beyond what is required by the legislation and constitute an unauthorised interference with Ministerial responsibility. A further challenge to his Honour's reasoning related to the manner in which he dealt with impact on biodiversity and endangered ecological communities and his resultant approach to proposed environmental offsets. Again, it was argued that his

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Honour failed to have regard to the Director-General' s report (which found these impacts acceptable) as a fundamental element or focal point in the decision-making process. This was also rejected by the Court as being the correct approach, and indeed in utilising his discretion his Honour had expressly and extensively dealt with biodiversity conservation in his reasons (at [262)). Notably, it is in the context of biodiversity conservation that the notion of "fundamental consideration" does operate, as the principle of the conservation of biological diversity and ecological integrity is a "fundamental consideration" under the definition of ecologically sustainable development (Protection of the Environment Administration Act 1991, s 6(2)(c); see paragraph [2.470] below).

Case study: The Parramatta Park case (2.430] The Parramatta Park case (Parramatta City Council v Hale (1982) 47 LGRA 319) involved the argument that a decision-maker had failed to take into account relevant considerations. The Friends of Parramatta Park and the NSW branch of the National Trust applied for a declaration that a development consent given by Parramatta Council was invalid, and for an order that the Council and the developers be restrained from commencing the proposed development (a sports stadium on Cumberland Oval in Parramatta Park). The application was made to the Land and Environment Court acting not as a merit appeal body but in its judicial review jurisdiction. This was because the EPA Act gave the objectors no third-party appeal rights (the development was not classified as "designated development": see [5.330]). In the first instance, Justice McClelland held that the development consent was invalid on three different grounds. The Council had misconstrued its powers and as a result had failed to deal with the question of whether the stadium should be approved. This was because it had wrongly come to the conclusion that legislation passed by the State Government (the Cumberland Oval Act 1981) had already decided the question of whether the stadium should be built and all that was left to be done by the Council was to impose conditions mitigating the impact of the development.

•

• The Council had not given the consideration required by the legislation in •

question to particular factors, specifically those dealing with parking, traffic and access arrangements. The decision reached was not simply a bad decision but was "so unreasonable that no reasonable body, properly understanding its duties, could have reached such a decision" ("manifest unreasonableness": see below).

The Council appealed from this decision to the Court of Appeal. The appeal was dismissed, with two members of the court agreeing with Justice McClelland's decision on the second ground, and one disagreeing. The Chief Justice, in the majority, emphasised that, in deciding whether relevant considerations had been taken into account, the Council's collective state of mind was at issue. He concluded

(2.430]

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that although the questions of parking, traffic and access had, technically speaking, been dealt with in the Council's decision, they had not been given due consideration. They had, in one sense, been dealt with in conditions attached to the consent. But these conditions were much less demanding than those originally recommended by the chief town planner in a report placed before the Council meeting at which the decision had been made. Some of the conditions were, in fact, little more than "pious hopes", in contrast with the detailed requirements relating to parking, access and traffic movement the chief town planner recommended. The Council could not, therefore, claim that it was relying on the research of its officers as a basis for its final decision. These officers had not been given any opportunity to reconsider the matter in light of the proposed amendments to their recommendations. It was not simply this failure that led the Chief Justice to conclude that the relevant factors had not been given due consideration by the Council. It was also the way in which one group of councillors had pushed through the vastly amended set of conditions at the meeting, without giving other councillors an adequate opportunity to understand or evaluate them. There was, for example, no chance to examine the proposed amendments before the meeting, and even at the meeting they were not presented in writing.

Justice Moffitt, coming to the same conclusion, emphasised that in exercising its judicial review function the Court was not concerned with whether the decision reached was or was not a wise one. The Council might quite legitimately have decided that the desirability of the development and the unfairness of the burden on the developer outweighed the need to protect the environment - as long as the correct procedures were followed. After a detailed examination of what had happened, he concluded that this was not the case. Rather, the evidence supported an inference that the Council had not considered relevant matters before reaching its decision. There was the course of events at the meeting and the total inadequacy of the conditions, despite the fact that the development was likely to have significant impact on the environment. But Justice Moffitt seemed to place special emphasis on the inadequacy of the information before the Council when it reached its decision. It had rejected the advice of its officers, and they had not been given any opportunity even to comment on the changes made in the final decision. Moreover, although the Council' s attention had been drawn to the responses of a number of government departments and public authorities to an environmental impact statement prepared by the developer for the Minister for Lands, it had not even bothered to obtain these responses. The result was that the only relevant information before the Council was that presented by the developer. Compare Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23 at [61]-[81] where the Court of Appeal decided that consideration had been given to relevant matters despite the limited time available.

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[2.440)

Depth of consideration required [2.440] Where the allegation is that, in reaching its decision, the decision-maker has failed to consider factors that it was required by legislation to consider, a crucial issue is the extent to which ·the courts will scrutinize the depth of consideration given to these factors. On one view, it is sufficient if there is some consideration given, regardless of whether it is in any sense adequate. But the danger here is that decision-makers will be misled into thinking that all they have to do is simply pay lip-service to the factors, which is clearly wrong (Anderson v Director General of the Department of Environment and Climate Change [2008) NSWCA 337 at [58)). An alternative approach argues that the job of the courts is to ensure that the decisionamaker gives "proper, genuine and realistic consideration" to the merits of the case (Kahn v Minister for Immigration, Local Government and Ethnic Affairs (1987) 14 ALD 291). It has been applied in a number of decisions of the Land and Environment Court (for example, Centro Properties Ltd v Hurstville CC [2004] NSWLEC 401 at [35)-[37]; Anderson v Minister for Infrastructure Planning & Natural Resources [2006] NSWLEC 337 at [52); Noble v Cowra Shire Council [2003) NSWLEC 178 at [122), [135)). In Weal v Bathurst [2000] NSWCA 88, the "proper, genuine and realistic consideration" test was specifically adopted by a majority of the NSW Court of Appeal ([2000) NSWCA 88 at [9]-[10)). Justice Giles held that: there had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation sufficient to warrant the description of the matters being taken into consideration. (at [80)). However' in Kindimini Investments v Lane Cove CC [2006] NSWCA 23 at [74)-[79] and . Anderson v Director General of the Department of Environment and Climate Change [2006] NSWCA 337 at [57), the NSW Court cif Appeal emphasised the dangers of such an approach and the need to avoid slipping into review on the merits.

Manifest unreasonableness [2.450] One of the grounds relied on by Justice McClelland in the Parramatta Park case was not used by the Court of Appeal to justify its decision. This was the argument that the Council's decision was so unreasonable that no reasonable body could have reached it. This is a recognised basis for judi~ial review of decisions by councils and p~blic authorities, frequently referred to as "Wednesbury unreasonableness" after the UK decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223. It is an exception to the general position that the courts will not become involved in the merits of decisions where they are exercising their . judicial review function, but it is a very narrow one. In the leading Australian case of Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, Justice Mason framed the issue in the following way: ... it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power ... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable" (at 41).

[2.470)

chapter 2 Building blocks of environmental law

The courts are extremely reluctant to conclude that a decision is "manifestly unreasonable". They are concerned that they will be accused of making decisions on the merits of the case without having the full facts before them, as distinct from simply supervising the decision-making process. In Murrumbidgee Ground Water Preservation Association Inc v Minister for Natural Resources [2005) NSWCA 10; [2005) NSWCA 10 at [129), the NSW Court of Appeal said that a decision would only be manifestly unreasonable if it was "illogical, irrational or lacking a basis in findings or inferences of facts supported on logical grounds" (see also, Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010) NSWCA 145). This deference to the decision-maker's determination on the weight that should be given to particular factors means that the values of particular decision-makers are decisive.

Case study: A manifestly unreasonable decision (2.460] An example of the sort of situation in which the courts will be prepared to intervene occurred in Ba/main Association Inc v Planning Administrator for Leichhardt Municipal Council (1991) 25 NSWLR 615. The Court of Appeal held that a direction by the Minister under the EPA Act, requiring the Council to complete the process of making a number of draft plans within five weeks, was manifestly unreasonable. This was based on the fact that the Council had to decide whether to hold a public hearing and, if it did, to advertise this for a period of three weeks, leaving it only eight days to hold the hearing, make public the report, consider it, and decide whether to make any amendments to the plans. (See also Minister for Primary Industries and Energy v Austral Fisheries PIL (1993) 30 ALD 783; Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning (2000) 107 LGERA 363; [2000) NSWLEC 20.)

Legislative prioritisation of matters to be considered [2.470] If legislation goes further than simply telling decision-makers to take certain factors into account and indicates the weight that should be given to them the decision-maker must give effect to this. For example, when it comes to making decisions under the Water Management Act 2000 (NSW), priority must be given to protecting water sources and their dependent ecosystems over the allocation of water for irrigation (ss 5(3), 9(1)). In making decisions on whether or not to grant licences relating to pollution, the Environment Protection Authority (EPA) is required to take its own objectives into account (Protection of the Environment Operations Act 1997 s 45(6)). These require the EPA to have regard to the need to maintain ecologically sustainable development. The conservation of biological diversity and ecological integrity is identified as a fundamental consideration when it comes to spelling out the principles and programs through which ecologically sustainable development can be achieved (Protection of the Environment Administration Act 1991, s 6(2): see [1.200)). There is an argument, therefore, that in making decisions about whether or not to grant a licence, and what conditions should be attached, greater weight must be given to biodiversity conservation than, for example, to economic considerations.

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[2.480]

Requiring the decision-maker to be satisfied of particular matters [2.480] Another legislative approach to restricting the decision-maker' s discretion is to impose a requirement that they must be satisfied that certain conditions are met before making a decision. State Environmental Planning Policy 19 - Bushland in Urban Areas (see [12.890]), for example, provides that before granting consent to the disturbance of native bushland in the areas covered, councils must:

• make an assessment of the need to protect and preserve the bushland, taking into account certain objectives spelt out in the Policy • be satisfied that the disturbance of the bushland is essential for a purpose in the public interest, and no reasonable alternative is available • be satisfied that the amount of bushland to be disturbed is as little as possible and, where

the disturbance is to allow construction work to be carried out, that the bushland will be reinstated as far as possible.

Obstacles to judicial review [2.490] The burden of proving that a council has invalidly exercised its decision-making

authority is on those alleging that this has occurred (GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA256; Reid's Farms Pty Ltd v Murray Shire Council [2010] NSWLEC 127). Justice Moffitt, in the Parramatta Park case, emphasised the formidable problems of proof faced by those trying to prove a negative state of mind - that is, that relevant factors were not taken into consideration by a group of people as a whole. A conclusion that the council had not fulfilled its obligations could be reached only after "anxious consideration". Moreover, it was a matter of inference, taking into account a range of pieces of evidence that individually would not have been sufficient. Councils are not required to give reasons for their decisions to give development consent (CPT Manager Ltd (acting as trustee of the Broken Hill Trust) v Broken Hill City Council [2010] NSWLEC 69). Dealing with an application in an apparently cursory fashion does not necessarily mean that a decision-maker has failed to satisfy the obligation to give due consideration to relevant factors. A council is entitled to rely on its officers' inquiries and summaries of relevant information and their opinions and advice in reaching a determination (Parramatta City Council v Hale (1982) 47 LGRA 319; Warren v Electricity Commission of NSW (unreported, Land and Environment Court, 31 October 1990)). In addition, councils can quite legitimately delegate their power to make decisions to their officers. Documents contained on a council's files are generally presumed to be documents in the possession of the councillors (Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74; Notaras v Waverley Council [2007] NSWCA 333) and have been read by them (Bora! Resources (Country) Pty Ltd v Clarence Valley Council & Avard; Cemex Australia Pty Ltd v Clarence Valley Council & Avard [2009] NSWLEC 81; Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38). Councillors are also entitled to make use of their general knowledge, without making further detailed inquiries in the course of each case.

[2.510]

chapter 2 Building blocks of environmental law

The mere fact that there has been political caucusing does not mean that the decision-making process is flawed (Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61 at 86). Apart from the financial cost of environmental litigation (see [2.900]-[2.960]) and any problems of standing to sue (see [2.800]-[2.890]), another difficulty faced by those considering whether to bring an action for judicial review is that remedies lie within the discretion of the courts (see [2.700]).

Case study: Reports [2.500] In Schroders Australia Property Management Ltd v Shoalhaven CC [2001] NSWCA 74, the Council relied on reports from independent consultants and legal advice to conclude that development was consistent with the objectives of the zoning of the land in question. While there was no evidence that each councillor had read these materials individually, the Court of Appeal held that an inference could be drawn that material in the possession of the Council was also in the possession of the individual councillors. Moreover, there was a presumption that the councillors had read this material and the burden of proof was on the objector to disprove this.

Compare Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38, where the Land and Environment Court held that there was evidence rebutting the presumption that councillors had read relevant material (a letter from the Council's solicitors indicating that only one councillor looked at the file prior to the council meeting). The Council had not responded by leading any evidence indicating that other councillors had read the relevant material.

Privative douses [2.510] Privative clauses are prov1s10ns in legislation that purport to limit or exclude the jurisdiction of the courts to review decisions under the principles discussed above. The Gene Technology (GM Crop Moratorium) Act 2003, for example, provides that an exemption order "cannot be challenged, reviewed or called into question in proceedings before any court or tribunal". The Sydney Harbour Tunnel (Private Joint Venture) Act 1987 (ss 8, 10) exempted tunnelling and ancillary works related to the construction of the Sydney Harbour Tunnel from the operation of Parts 3, 4 and 6 of the EPA Act (the latter Part dealing with enforcement). Further, section 17 on the imitation of appeals, mandated that no legal proceedings were available in relation to decisions, conditions imposed, or any alleged contravention of Part 5 of the EPA Act, with respect to tunnelling or ancillary works for the Sydney Harbour Tunnel. Section 19A of the Luna Park Site Act 1990 states that, within the restrictions set by that section, the emission of noise from the Luna Park site does not constitute a public or private nuisance, and that no criminal or civil proceedings or noise abatement action may be taken against any person with respect to the emission of noise from the site.

Under the EPA Act, where an environmental planning instrument is gazetted or public notice of a development consent is given (Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61), actions questioning the validity of the plan or consent must be brought within three months (ss 35, 101; see [3.610]; [5.2630]). Such provisions do not remove the right

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of judicial review entirely, but rather seek to impose a time limit on potential legal challenge for the sake of certainty of a statutory plan or consent. The courts have, however, held that privative clauses do have their limits. In Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455, the NSW Court of Appeal held that compliance by councils with a precondition to be satisfied before they could require applicants for development consent to dedicate land free of charge was so significant as to amount to an "inviolable restraint". Consequently, it could be challenged outside the time limit set by section 101 of the EPA Act. It has also been held that privative clauses do not exclude a challenge based on a denial of procedural fairness (Lesnewski v Mosman Municipal Council [2005] NSWCA 99). For example, the Water Management Act 2000 purports to specifically exclude procedural fairness challenges in relation to water management plans (s 47(5), 47(6)). In addition, one view of the recent decision of the High Court in Kirk v Industrial Relations Commission (2010) 239 CLR 531; [2010] HCA 1, is a general rule that the States cannot constitutionally enact privative clauses to exclude the jurisdiction of the State Supreme Court where the error in question undermines the jurisdiction of decision-makers (jurisdictional error) (at [99]-[100]). The High Court stated: To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint. (at [99]) See generally, [5 .2630]-[ 5 .2640].

Validating legislation [2.520] Even if it appears that there are firm grounds on which to base a request for judicial review, there may still be obstacles. Governments may intervene where they are determined to see that a particular project goes ahead. They may not be prepared to wait for the existing procedures to be followed in a re-run of the decision making process. So far as the law is concerned, there is nothing to prevent governments from introducing special legislation, enabling existing legal procedures to be bypassed in particular situations and earlier wrongdoing to be validated. The NSW Government has intervened with special legislation on a number of occasions in the past in relation to procedures for plan-making and project control under the EPA Act. The Blue Mountains Land Development (Special Provisions) Act 1985 and the Port Kembla Development (Special Provisions) Act 1997, for example, provided that even if certain environmental planning instruments and development consents made or granted under the EPA Act were invalid because the correct procedures had not been followed, they were to be treated as if they were valid. This had the effect of terminating judicial review proceedings that had already been commenced in the Land and Environment Court. The NSW Parliament passed the Filming Approval Act 2004 to overcome the decision of the Land and Environment Court in Blue Mountains Conservation Society Inc v Director-General of National Parks and Wildlife (2004) 133 LGERA 406; [2004] NSWLEC 196 restraining commercial film production in a wilderness area. The Act facilitated filming in dedicated areas

[2.530)

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under the National Parks and Wildlife Act 1974 and the Marine Parks Act 1997, for example by permitting filming even where prohibited under the EPAAct (s 5(1)). In 2008, amendments to the Threatened Species Conservation Act 199 5 (Schedule 7, Part 7) conferred biodiversity certification (see [12.1290]) on State Environmental Planning Policy (Sydney Region Growth Centres) 2006 by legislative fiat. This was in response to threatened legal proceedings that challenged the rationality of the Minister's conclusion that the planning policy could be certified because it in fact contained measures that would lead to "the overall improvement or maintenance of biodiversity values". Although it is quite clear that the NSW Government, acting through the legislature, is legally entitled to act as it did in these cases, some people would dispute its moral right to do so. Adopting this sort of approach leaves it open to accusations of riding roughshod over the environmental planning legislation.

Case studies: Validating legislation [2.530] In Parramatta City Council v Hale (1982) 47 LGRA 319 (discussed in [2.430]), we have seen that the Court of Appeal held that the development consent was invalid. It was then open to the developers to resubmit their application for consent, and open to the Council to reaffirm its original decision to give the go-ahead, this time making sure that it took into account all the matters it was required to consider. This, however, would have taken time. Besides, it would have been politically difficult for the Council to give approval without making more detailed provision for parking, access and traffic movement. There might even have been the threat of further legal proceedings if the substance of the decision had remained unchanged, however hard the Council tried to follow the guidelines laid down by the Court of Appeal. To deal with these circumstances, the NSW Government introduced special legislation in the form of the Cumberland Oval (Amendment) Act 1983 and the Cumberland Oval (Amendment) Act 1984. This made no attempt to interfere with the Court of Appeal's decision that the development consent already granted by the Council was invalid. What it did do for the future was to make the issue of development consent redundant by providing that the relevant parts of the EPA Act did not apply to development carried out under the Cumberland Oval Act 1981 or leases granted under that Act. On top of this, once a lease had been granted under the Act, environmental planning instruments no longer applied to the land while it was in force. More recently, the Clyde Waste Transfer Terminal (Special Provisions) Act 2003 overturned the decision of the NSW Land and · Environment Court in Drake v Minister for Planning [2003] NSWLEC 270. Justice Bignold had held that, in giving development consent under the EPA Act for a development that involved the compacting of putrescible waste, the Minister had proceeded on an incorrect basis as the activity proposed was not permissible with consent but prohibited under the terms of the applicable plan. In other words, the Minister had wrongly classified the activity and the development consent was invalid (see above, [2.310]). The Act dealt with this illegality by simply deeming development consent to have been granted.

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[2.580]

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Duty and discretion

New directions

(2.540] A public body may not simply have a discretion to exercise, but a duty to perform. As a rule of thumb, use of the word "may" in legislation introduces a discretion, while the word "shall" places the body under a duty. In the end, however, it is a question of interpretation of the particular piece of legislation. Where there is a duty to be performed, the public body has no choice in the matter. If it refuses, those with sufficient standing to sue (see [2.800]-[2.890]) may obtain from the courts an order requiring performance, or at least a declaration that the public body is under such a duty.

Advance approvals for breach of the criminal low

Decision-makers responsible for discretionary decisions still normally have a duty to reach some decision and a duty to take specified factors into account, as discussed above. Beyond this, however, the exact nature of the decision is a matter for their discretion.

The role of criminal law The stereotype (2.550] Criminal law is usually thought of as a series of general directions to all members of the community, telling them to not to behave in a particular way and pointing out the possible penalties to those who are tempted to do so. More than this, criminal law is perceived as being concerned with behaviour that poses a fundamental threat to the kind of society we live in - for example, laws forbidding physical and sexual violence and various kinds of interference with private property rights. Criminal law has a long history. It was originally developed by judges on a case-by-case basis, using the doctrine of precedent. In other words, its foundations lie in the common law. It is closely associated with the idea of blame, and for those who break the criminal law, punishment is seen to be an almost inevitable consequence. Even where there is an identifiable victim of the offence, the community feels so strongly about the behaviour in question that it is not prepared to leave decisions as to what to do about it in the hands of individual members of the community. The offence is perceived to be an offence against the community as a whole, and deserving of a response by the official representatives of the community. There is a general reluctance to condemn those who have caused damage not by acting, but by failing to act. Only in cases where death is caused by somebody failing to fulfil a duty of care to another person, such as the duty a parent owes to a child, is there any possibility of a murder or manslaughter conviction. There is a feeling that criminal law should determine the minimal level of behaviour necessary for a civilised society, rather than acting as a counsel of perfection. Criminal law provides defences. but their ambit is very restricted. Where there is bodily harm, even the consent of the victim does not constitute a defence. The harm caused to the community is seen as being more important than the issue of whether or not the supposed victim considers that they have suffered damage. Defences cannot ordinarily be arranged in advance; the law does not recognise a licence to kill.

(2.560] Where criminal law has expanded through legislation into.__ new fields of human behaviour, including the relationship between people and their environment, it has taken on a fundamentally different shape. There are still general criminal prohibitions, such as those contained in the NSW Protection of the Environment Operations Act 1997 stating that a person shall not pollute any waters or cause or permit any waters to be polluted (s 120). However, these are much more restricted than they appear because of the further provision that no offence is committed by those who cause pollution in accordance with the terms of a licence (s 122). In other words, advance approval to pollute can be obtained by applying to public bodies, such as the Environment Protection Authority or a local council, which make discretionary decisions (see [1.300]). The reality is that these bodies exercise their discretion to give approval in most cases, albeit approval subject to detailed conditions. The attitude is not one of outright condemnation with very limited exceptions where we are prepared to allow a defence. The community is at least ambivalent, and the benefits of industrialisation are weighed against the impact of pollution on the environment. Instances of water pollution that have no social utility are still roundly condemned, but in other cases the attitude is equivocal. The proviso is that any pollution must be regulated - in other words, it must take place under controlled conditions. The ambit of prohibited behaviour is in practice defined by those licence conditions, rather than by the general prohibition contained in the legislation. In this context, criminal law is often referred to in terms of regulation.

Obligations to act (2.570] Another noticeable feature of criminal law in the environmental context is the readiness to impose obligations on people not simply to refrain from acting, but to act positively in a certain way. This makes criminal offenders of those who omit to act as directed. In most cases, these obligations are not imposed on the public at large but on certain groups of people occupying special positions - those engaged in ongoing activities (industrial concerns, for example) that have a continuing effect on the environment. For example, the occupier of certain premises must, under the Protection of the Environment Operations Act 1997, maintain control equipment "in an efficient condition", and must operate that equipment "in a proper and efficient manner" (s 167), or be guilty of an offence. This provision imposes an obligation to act, but it is an obligation framed in imprecise terms, which the occupier must interpret and apply to their precise circumstances. Traditionally, one of the key principles underlying criminal law has been that members of the community should be aware of their obligations well in advance. In theory, at least criminal law has been traditionally concerned with giving messages to those wishing to conform to its demands, not simply with punishing those who are found, after the event, to have breached it.

Individualised obligations (2.580] One way of avoiding the imposition of vague obligations in environmental legislation is, as discussed above, to require those who are subject to its requirements to approach a specialised

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agency for approval of a proposed activity in advance - for example, to obtain a licence from the Environment Protection Authority. The licence spells out the detailed obligations of the licensee through the conditions attached, and these are backed up by the threat of criminal penalties for breach of condition. Another technique, which is again not found in more traditional areas of the criminal law, is to allow regulatory agencies to issue directions to a specific member of a group as distinct from the group as a whole (see [1.290]). Failure to abide by the detailed demands of the direction becomes a criminal offence. In essence, licences and directions are individualised criminal laws, as compared with general commands addressed to the whole community. Directions can require that certain steps be taken or that certain activities cease. The provision of detailed requirements in a direction is fairer to the individual or company concerned because it relieves them of the potential perils of vague, general requirements set out in legislation. Apart from providing a great deal more detail on what is required, the implementation of a direction can also be supervised by the body responsible for issuing it.

Finding fault [2.590] In another respect, regulatory criminal law in the environmental context seems to show much less regard for questions of fairness to the individual. Traditionally, criminal law has usually stopped short of convicting those who are only negligent - that is, people who ought to have known what was happening or the likely result of their actions, but did not know, and people who have failed to act reasonably when faced with risk even though they thought that their response was adequate. It is more difficult to attribute blame where people are not fully aware of what is going on or did their imperfect best. If the apparent wrongdoing was all a complete accident, traditional criminal law has been even more reluctant to convict and punish. To do so in these circumstances would be to punish regardless of whether the person knew what was happening. In legal terms, this is to make liability absolute. There is an argument, however, that where the criminal law is concerned simply with regulating activity, rather than condemning the morally culpable, we should be prepared to lower the level of fault that must be proved and be more willing to convict at least the negligent in some circumstances. In support of this, it is argued that, in the environmental context, for example, the criminal law is concerned not with general rules that apply to all members of the community, but with particular groups of people engaged in specialist activities calling for special precautions. Only by demanding a reasonable standard of care, and closing off all so-called loopholes, can we hope to ensure that those engaged in these activities will do their best to meet the law's requirements. There is also the argument that in these circumstances it is too great a burden on the prosecution to have to prove beyond a reasonable doubt that the defendant knew what was going on, or took risks being fully aware of ,the consequences, especially where the defendant is a company. This raises complicated legal questions (for example, which officer's knowledge represents that of the company), and complex factual questions stemming from the fact that in large organisations any individual may have only partial knowledge.

Interpreting legislation [2.600] In practice, when confronted with criminal offences in legislation, the question of what level of fault must be proved requires the courts to interpret the detailed provisions setting out the

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offence. In doing so, they will maintain the fiction that they are discovering the intention of Parliament rather than making the decision themselves.

In some cases, absolute liability and liability for negligence are excluded by the express terms of the legislation. So, an offence might be restricted to situations where the accused acted "knowingly" or "recklessly" (awareness of a risk). For example, under the Gene Technology (GM Crop Moratorium) Act 2003 (NSW) it is ordinarily an offence to cultivate a genetically modified food plant knowing that it is such a plant or being reckless as to whether it is (ss 6, 7; see [11.1090]-[11.1150]). Section 115 of the Protection of the Environment Operations Act 1997, on the other hand, makes it an offence not only to "wilfully" (intentionally) dispose of waste in a manner that harms the environment, but also to do so "negligently" (see [9.1150]-[9.1220]). Amendments in 2010 to the National Parks and Wildlife Act 1974 provide for two offences relating to harm to an Aboriginal object. These offences are distinguished by their fault requirements. The rriost serious, punishable with up to a year's imprisonment as well as a fine, is committed where the defendant knows that it is an Aboriginal object (s 86(1)). The other offence, which is only punishable by fine, is committed where the defendant came to the conclusion that it was not an Aboriginal object, but a reasonable person would have realised that it was (ss 86(2), 86(5)) (liability is "strict": see below). In many cases, however, legislation simply does not use words that clearly indicate the level of fault that must be proved. But the wording of the offence must be examined closely to see if there are any more subtle indications. The word "permit", for example, usually indicates that awareness on the part of the person doing the permitting must be proved.

Parliamentary silence on fault requirements [2.610] If the legislation is totally silent when it comes to spelling out fault requirements, the courts do not assume that absolute liability was intended (see generally He Kaw Teh v R (1985) 157 CLR 523 ). In fact, they start with exactly the opposite presumption: that the prosecution must prove that the accused was aware of the circumstances that went to make up the criminal offence. However, this can be rebutted. It is at this point that the courts look to the social purpose of the legislation, including whether the offence falls within an ill-defined notion of "real crime", conviction for which will result in social stigma. This is contrasted with "mere regulation", where liability for negligence and absolute liability sit more comfortably. The courts also consider whether opting for liability for negligence or even absolute liability will actually assist in making the legislation more effective. If we require each industrial unit to achieve what is reasonable within the industry as a whole rather than doing its own imperfect best, we may actually raise the overall standa~d. But this assumes that any particular unit is capable of achieving this standard, when it frequently depends on the financial resources available.

Strict liability [2.620] In practice, where the law is not specific, NSW courts generally opt for a form of liability for negligence known as strict liability. In technical terms, this means that the prosecution does not have to prove that the defendant knew all the facts making up the offence (for example, that the plant picked was listed as threatened) but the excuse of "reasonable mistake of fact" is available to the defendant. See; for example, Director-General of the Department of Land and Water Conservation v Greentree [2004] NSWLEC 584 (clearing native vegetation); Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 (water

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pollution); Environment Protection Authority v Australian Iron and Steel Pty Ltd (No 2) (1992) 78 LGERA 373 (air pollution); Plath v Rawson [2009] NSWLEC 178 (picking a threatened plant species: see [12.610]); Director of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4 (clearing native vegetation) . To secure a conviction, the prosecution must show that any mistake of fact alleged by the defence was not one a reasonable person would have made. But before the defendant can rely on reasonable mistake of fact, it must have made a mistake: it must have at least considered the issue and reached a wrong conclusion.

Case study: Reasonable mistake [2.630] In State Rail Authority v Hunter District Water Board (1992) 65 A Crim R 101, an underground PVC pipe failed, and as a result, oil escaped and a creek was polluted. The State Rail Authority was prosecuted for polluting waters under what is now section 120 of the Protection of the Environment Operations Act 1997. The Rail Authority argued reasonable mistake of fact. The Authority's depot manager said that he understood that the relevant systems were working properly and that he had never observed any previous leakage, but he acknowledged that there was a risk of breakage from movement and settlement of the material in which the pipeline was located. It would have been possible to conduct a check using a water pressure test, but no such check had ever been made, even though there had been a major earthquake ten months before the incident. The Court of Appeal held that a mere assumption by the accused that everything was in order did not amount to a mistake. There had to be a positive belief that the operation of plant and equipment would not result in pollution. This belief also had to be reasonable.

Due diligence [2.640] Suppose an accused corporation argues that it correctly appreciated all the facts and that, in light of this, it took reasonable steps to avoid any incident, even though, as it turned out, it failed? Where the legislation is silent on these matters, does the "reasonable mistake of fact" excuse allow an accused to argue due (reasonable) diligence (ie that they were not negligent)? The answer given by the courts is in the negative. Australian Iron and Steel Pty Ltd v EPA [No 2] (1992) 79 LGERA 158 involved the offence of polluting waters under section 16 of the Clean Waters Act 1970. Justice Cripps of the Land and Environment Court held (and affirmed on appeal by the NSW Court of Criminal Appeal) that the prosecution only has to prove negligence (unreasonableness) in relation to issues of awareness (mistakes of fact). When it comes to issues about the adequacy of the response (diligence), liability is absolute. In taking this approach, the courts have lost sight of the policy considerations and, in particular, the question of effectiveness. The assumption underlying the decision is that it is inappropriate to convict someone who was quite reasonably unaware of all the facts that went to make up the criminal offence, but that it is quite appropriate to convict someone who took precautions that were quite reasonably regarded as adequate at the time to prevent commission of an offence, even though in practice they turned out not to be so. The problem is that, if we make someone in the second case absolutely liable, we do not appear to assist in preventing pollution. We are demanding perfection. No matter how hard you try, if you fail you must be convicted.

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In some cases, however, even though the prosecution do not have to prove that the accused failed to act with due diligence (ie, negligently), the legislation specifically provides for an offence of due diligence, which the defendant must prove on a balance of probabilities. For example, section 118 of the Protection of the Environment Operations Act 1997 provides that it is a defence to certain pollution offences if the defendant proves that the commission of the offence was due to causes over which they had no control and that they exercised due diligence to prevent the commission of the offence (see [9.1180]). Some legislation not only imposes liability for negligence, but also reverses the burden of proof, requiring the accused to show the absence of negligence, or "due diligence" (for example, Protection of the Environment Operations Act 1997, s 118).

Enforcement [2.650] The apparent harshness of laws imposing strict or absolute liability may be considerably modified in practice. Specialist enforcement agencies, such as the Environment Protection Authority, responsible for regulating those engaged in specialised activities generally perceived to be legitimate, may choose to prosecute offenders very selectively. They may argue that a much better response will be obtained in terms of compliance with licence conditions over the longer term by using the techniques of bargaining and persuasion rather than prosecution and punishment. The assumption is that those involved in these activities want to comply with these requirements but that this may take a period of adjustment due to financial and technological constraints. As a result, enforcement agencies have traditionally used criminal prosecution for environmental offences as a last resort, preceded by a process of inspection, advice, negotiation and warning. Where there are licensing arrangements, law enforcement has often become an aspect of licence supervision. This approach is justified by enforcement agencies on the grounds that it is the most effective way of ensuring regulatory compliance and improvement over the longer term. They are able to take this approach because they do not have a duty to prosecute, even when they are sure that an offence has been committed, and can prove it. The decision whether or not to prosecute is a discretionary decision (see [1.300]). A different point of view is that enforcement agencies are restrained when it comes to prosecution because they have been "captured" by those whom they are supposed to regulate that is, they have come to identify with these groups, seeing the situation from their perspective rather than that of the broader society they are supposed to represent. This is more likely in situations where responsibility for enforcing criminal law is not in the hands of the police, but in those of specialist agencies that are also concerned with the day-to-day regulation of particular activities.

Penalties [2.660] Prison sentences are rarely used where environmental offences are committed. Often, legislation does not allow them to be imposed. One significant exception is the tier one pollution offences under the Protection of the Environment Operations Act 1997 (see [9.1110]-[9.1190])

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which attract a maximum penalty of seven years' imprisonment (s 119). However, while in late 1997 an offence under these provisions resulted in a 12-month prison sentence, offenders are nearly always fined. A series of more innovative sentencing options are now contained in this legislation. These include ordering the offender to publicise the offence, to carry out a project enhancing the environment, or to audit its activities (Part 8.3, see particularly s 250; see [9.1900]). Offenders can also be ordered to pay an amount to an organisation for "a specified project for the restoration or enhancement of the environment or for general environmental purposes" (s 250(1)(e)). Similar sentencing options are available under the National Parks and Wildlife Act 1974 (s 205). Amendments in 2014 to the offences, penalties and enforcement provisions of the EPA Act now allow the Court, where it finds an offence proven, to impose the alternative sentencing options contained in Part 8.3 of the Protection of the Environment Operations Act 1997. These include orders to prevent, control, abate or mitigate harm to the environment; orders regarding the payment of monetary benefits gained as part of committing an offence; and a publication order where the offender is required to publish an advertisement in a newspaper reporting on the prosecution.

Case studies: innovative sentences (2.670] In Environment Protection Authority v State of New South Wales (Department of Environment, Climate Change and Water) [2010] NSWLEC 67, the National Parks and Wildlife Service pleaded guilty to breaching a condition of its licence to treat sewage at its Perisher Valley sewage treatment plant by failing to operate equipment in a proper and efficient manner. It was not fined, but ordered to pay $80,000 to the Southern Rivers Catchment Management Authority for riparian rehabilitation and exotic tree removal along a stretch of the Thredbo River. The Court specifically ordered that this amount was not to interfere with the operational funding that the Department was responsible for paying the Authority. In Plath v Fish and Orogen Pty Ltd [2010] NSWLEC 144 environmental consultants were convicted in the Land and Environment Court of causing damage to habitat of threatened species {the Koala), knowing that the land concerned was habitat of that kind (see [12.640]). They provided a developer with advice on what vegetation could be lawfully cleared on a property but failed to advise that damaging habitat of the Koala which they were aware existed on the property was unlawful. Apart from being fined a total of $15,000 and having to pay the prosecutor's costs, they were ordered to carry out parts of a Koala mapping project, and to publicise the offence in the Sydney Morning Herald and the Newsletter of the Ecological Consultants Association of NSW.

In Environment Protection Authority v Wattke and Geerdink [2010] NSWLEC 24, the general manager and a director of a company which transported and dumped 25,000 litres of waste, causing water pollution, were each sentenced to 460 hours of community service and a total fine of $60,000, as well as being ordered to pay $15,000 towards the costs of the investigation and the costs of the prosecution.

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In Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89 the defendant was convicted of the offence against s 120(1) of the Protection of the Environment Operations Act 1997 of discharging sediment-laden water from a rural dam into the waters of a marine park. Pursuant to s 250{l)(e) of the Act, the defendant was required to pay:

(i)

$40,000 to Great Lakes Council to be applied to the Kore Kore Creek Bushland Reserve Project for stabilisation and remediation of tracks within the Kore Kore Creek Reserve; and

(ii)

$37,000 to the Marine Parks Authority for a project in the Port Stephens Great Lakes Marine Park involving the installation of "seagrass friendly moorings" in place of "dump and chain" swing moorings.

Fines [2.680] Companies can be fined up to $5 million for deliberate acts of pollution, and up to $2 million where they are negligent (Protection of the Environment Operations Act 1997, s 119). These are maximum penalties, however, and it is up to the courts in particular cases to give a penalty within this range. In practice the penalties handed down are considerably less than the maximum. Since 2003 the highest penalty imposed on a company under section 119 has been $250,000, with an additional $190,000 for prosecution costs and $50,500 for clean up expenses. Most of the fines for serious pollution offences have been under $100,000. Legislation frequently provides for maximum penalty units rather than monetary amounts. This allows fines to be raised over time without amending legislation. Currently, a penalty unit is valued at $110 under both NSW and Commonwealth legislation (Crimes (Sentencing Procedure) Act 1999 (NSW), s 17; Crimes Act 1914 (Cth), s 4AA).

Civil enforcement of criminal law [2.690] Increasingly, provisions are appearing in legislation that make it possible to enforce criminal laws through civil proceedings as an alternative to prosecution. The objective is not to punish the offender, but to obtain an order requiring that the offence cease and the situation be remedied. For example, it is a criminal offence under the Environmental Planning and Assessment Act 1979 to breach the provisions of a plan by carrying out development that is absolutely prohibited, or by failing to secure prior development consent where this is required (ss 122, 125, 126) . Maximum penalties for contraventions of the EPA Act have increased following 2014 amendments to the Act which commenced in 2015. Additional penalties have been introduced, now described as Tier 1, 2 and 3 offences (ss 125A, 125 Band 125C respectively). For example, increased penalties are now available for offences committed intentionally or those that cause harm or likely harm to the environment or death or serious injury to a person (Tier 1 offence, s 125A, with a penalty of up to $5 million in the case of a corporation, and up to $1 million in the case of an individual. The maximum penalty for offences against the Environmental Planning and Assessment Regulation 2000 (NSW) has been increased to $110,000 (s 125D).

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But as an alternative (ss 127(7), 127(8)), civil proceedings can be brought to remedy or restrain the breach (s 123). This provision gives very broad rights of standing (see below): "any person" can bring proceedings to remedy or restrain a breach of the Act. Most other NSW environmental legislation contains a similar provision. More generally, section 253 of the Protection of the Environment Operations Act 1997 gives any person a right to bring proceedings to restrain (but not to remedy) a breach, or a threatened breach of any NSW legislation, provided that it is causing or likely to cause harm to the environment. One of the attractions of civil enforcement is the lower standard of proof required. The prosecution must ordinarily prove guilt beyond reasonable doubt to secure a conviction for a criminal offence. The standard of proof in civil proceedings is the less demanding one of a balance of probabilities. Civil proceedings look to the future and seek to resolve the problem, rather than focusing on the past and the punishment of the offender, though the greater use of innovative sentencing regimes by the courts in recent years does point to a reliance on penalties that seek to achieve direct environmental benefits.

A discretionary remedy [2.700] The courts do, however, have a broad discretion to refuse a remedy in civil proceedings even where a breach has been proved. In Warringah Shire Council v Sedevcic (1987) 63 LGRA 361, Justice Kirby offered general guidelines for the exercise of this broad discretion in the context of environmental planning law (Environmental Planning and Assessment Act 1979, s 124). He emphasised that the point at issue was the enforcement of a public duty, not a private right. In light of the broad rights of standing given to members of the public under the legislation, the function of the courts in exercising the discretion was to uphold "the integrated and co-ordinated nature of planning law" to ensure that justice was done and that private advantage was not gained by particular individuals:

the obvious intention of the Act is that, normally, those concerned in development and use of the environment will comply with the terms of the legislation. Otherwise, if unlawful exceptions and exemptions became a frequent occurrence, condoned by the exercise of the discretion under section 124, the equal and orderly enforcement of the Act could be undermined. A sense of inequity could then be felt by those who complied with the requirements of the Act or who failed to secure the favourable exercise of the discretion under section 124. (pp 365-366) Nevertheless, Justice Kirby made it clear that the discretion to refuse a remedy would be exercised in appropriate circumstances, taking into account such factors as whether the breach was purely technical, whether it actually had a beneficial rather than an adverse effect, and any delay in bringing the action. He indicated that it may be more readily exercised where development has already occurred and would be expensive to remove, "than where what is involved is a continuing breach by conduct which could quite easily be modified to bring it into compliance with the law". He added that the discretion was broad enough to allow the court to soften the impact of rules by, for example, postponing the effect of an order, where otherwise they would produce an unjust result in the particular case. Finally, denial of a remedy would be less likely where enforcement proceedings were brought by the Attorney-General or a local council, because they were the proper guardians of public rights.

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A good example of the way in which this discretion is exercised in practice can be found in Fatsel Pty Ltd v ACR Trading Pty Ltd [No 3] (1987) 64 LGRA 177. The Court of Appeal held that it was relevant to take into account the following facts:

• that the defendant's activities (processing grease-trap wastes) contributed to the solution of an important environmental problem • that they were conducted in an environmentally satisfactory manner and had been carried on without problems for some time • that the facility concerned was one of only three in the Sydney region • that the only complaint was from a trade competitor who stood to gain a commercial advantage if an injunction was granted.

Civil penalties [2. 71 0] The significant Commonwealth environmental legislation, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (see Chapter 7), contains civil penalty provisions, which are not found in NSW legislation. For example, under the Commonwealth legislation, it is a criminal offence to take an action that has or is likely to have a significant impact on a species listed as threatened, without first obtaining approval. This is punishable by imprisonment for up to seven years and, for corporations, a fine of up to $378,000 (s 18A). But, apart from this, breach of this provision attracts a civil penalty, following civil proceedings, of up to 50,000 penalty units where a corporation is involved o(s 18). Currently a penalty unit equals $180 (Crimes Act 1914, s 4AA), equating to a penalty of up to $9 million. Once a person is convicted of a criminal offence, payment of a civil penalty cannot be ordered (s 486A). On the other hand, criminal proceedings can still be taken after a civil penalty has been ordered (s 486C).

Again, an important attraction ·of civil proceedings is the lower standard of proof. It also seems likely that the prosecution in criminal proceedings will have to prove a higher degree of fault on the part of the defendant.

Economic instruments [2.720] There has been a recent trend, both within Australia and internationally, to employ economic instruments, including market mechanisms, to address environmental issues. These instruments are proposed as an alternative way of influencing behaviour in some circumstances to "command and control" regulation, particularly criminal law. What economists mean by "command and control" is the focus of much of the law presented in this book: provisions, usually in legislation, that, under threat of penalty, prohibit particular forms of environmentally harmful behaviour, or, on occasions, require certain action designed to avert environmental harm to be carried out.

Economic instruments use price signals as incentives to change behaviour rather than commands. They include charges imposed by governments (often misleadingly referred to as "taxes") and tradeable permit systems. A tradeable permit is a right to emit a set level of pollutant or to use a set level of a resource, such as water, which can be bought and sold in the market place.

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Economic instruments are designed to remedy failures in the market place by making polluters pay for "externalities": environmentally harmful side-effects of their activities that impose costs on the broader community. Those responsible have traditionally not paid for these costs. In effect, the community has subsidised the activity by bearing the costs.

[9.1630]). The Carbon Pollution Reduction Scheme (CPRS) unsuccessfully proposed in 2010 by the Commonwealth Government in a package of proposed legislation that included the Carbon Pollution Reduction Scheme Bill, was an example of a tradeable permit scheme which placed a cap on Greenhouse gases in the environment.

We saw in Chapter 1 ([l.190]) that under NSW legislation, two strategies for achieving ecologically sustainable development are the application of the polluter pays principle ("those who generate pollution and waste should bear the cost of containment, avoidance or abatement") and that:

Tradeable or transferable development "rights" or "credits" schemes have been attempted in Australia, generally without much success. A notable exception is Sydney City Council's Heritage Floor Space Scheme (see: http://www.cityofsydney.nsw.gov.au/development/application-guide/ heritage-conservation/heritage-floor-space-scheme). In the context of water resource management, Chapter 15 outlines a tradeable permit scheme which allows not a right to pollute but a right to use a natural resource to be bought and sold.

environmental goals, having been established, should be pursued in the most cost effective way, by establishing incentive structures, including market mechanisms, that enable those best placed to maximise benefits or minimise costs to develop their own solutions and responses to environmental problems (Protection of the Environment Administration Act 1991 (NSW), s 6(2)(d)). Economic instruments are proposed as more "efficient" ways of changing behaviour. Because they are more flexible, they enable a particular target to be achieved at the least cost. For example, a uniform command and control air pollution emission standard designed to achieve a given level of environmental quality requires each and every polluter to meet that standard. But for some polluters this will be very expensive, whereas for others who have updated or are about to update technology, it will be much cheaper. If they are charged by government for the amount of pollutant emitted, or can buy and sell permits to pollute in the market-place, then different firms will choose different strategies based on the relative cost. Some will find it cheaper to pay the charge or purchase the permits. But those who are able to reduce environmental damage more cheaply than the cost of the charge or permit, by investing in pollution control technology for example, will do so. And if as a result they no longer need permits to pollute, they will be able to sell them to those who do. The use of economic instruments rather than command and control regulation therefore allows each polluter to choose what is for them the most cost effective strategy. A tradeable permit scheme can be combined with a "cap" on the overall level of pollutant in the environment (for example, a cap on Greenhouse gases). The amount of pollution allowed under permits to pollute is limited so that in total it meets this cap. Permits can be issued for defined periods, and over time the cap can be reduced. With a tradeable permit scheme, one of the most significant issues relates to how the initial permits are allocated. Polluters generally want existing permits to pollute, which have in the past been issued to them under command and control legislation, to be "grandfathered" (ie, simply left in place, without charge). But another argument is that they should be auctioned. With a pollution charge scheme, government sets the level of the charge. It should set it at a level that ensures that public costs are paid, and externalities are internalised by being paid by the polluter. But the problem is how to quantify these costs in terms of environmental harm. And there are political difficulties involved in adjusting the charge to take into account increased levels of production and resulting pollution. If a charge is fixed at a level that is too low, it becomes no more than a revenue raising exercise by government, not one designed to influence behaviour. In NSW we can find examples of economic instruments being used in the pollution control context. The NSW load-based licensing scheme relies on a pollution charge while the Hunter Valley Salinity Trading Scheme provides an example of a tradeable pollution permit scheme (see

More recently, economic instruments have even begun to emerge in the nature conservation context. The Biodiversity Banking ("Biobanking") scheme discussed in Chapter 12 ([12.1200]-[12.1280]) combines:

• a command and control requirement to offset damage to biodiversity caused by development, by replacing it on another site, with • a market which allows those managing land for biodiversity to sell biodiversity credits to developers who need them to offset the damage that they will cause.

The role of the courts The Land and Environment Court [2. 730] The Land and Environment Court of NSW is a superior court of specialist jurisdiction. It was established in 1979, and its powers are set out in the Land and Environment Court Act 1979.

The Court comprises both Judges and Commissioners (Pt 2, Divs 2 and 3 ). Commissioners are judicial officers who have expertise in one or more of a number of fields, including (s 12):

• planning • environmental science • environmental protection • land valuation • architecture • surveymg • building • natural resource management • land rights • urban design • heritage.

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The Court's jurisdictions [2.740) The Court has eight areas of jurisdiction (s 16(2)). In Part 3, Division 1 of the Act, these

are divided in the following way:

•

Class 1: environmental planning and protection (s 17). This allows for merit appeals (see [2.350]) under a number of pieces of legislation. In practice, most are appeals by applicants for approval from decisions by local councils involving land development (for example, appeals under s 97 of the Environment Planning and Assessment Act 1979 against conditions a council has imposed on a development consent, and appeals against the refusal of a development application or neglect or delay in giving a decision). Appeals by those seeking licences under the Protection of the Environment Operations Act 1997, and licences and approvals under the Water Management Act 2000 are also included. Rights of merit appeal by objectors (third party appeals) are few and far between (see [5.330]).

• Class 2: local government and miscellaneous appeals (s 18). Most frequently these cases •

involve merit appeals arising under the Local Government Act 1993 and applications under the Trees (Disputes Between Neighbours) Act 2006. Class 3: land tenure, valuation, rating and compensation (s 19). This includes:

- appeals against land valuations - claims for compensation where land has been compulsorily acquired by the state or a public authority - appeals in relation to the determination of property boundaries - Aboriginal land claims under land rights legislation (see [20.40]-[20.210]) .

• Class 4: judicial review of administrative decision-making (see [2.360]-[2.540]) and civil •

enforcement proceedings (see [2.690]) (s 20). This takes place under a range of environmental legislation, including legislation that gives broad rights of standing to sue (see [2.800]-[2.890]). Class 5: criminal prosecutions under a range of environmental legislation (s 21). The jurisdiction is summary, which means that the case is dealt with by a judge sitting without a jury, even though in recent years maximum penalties for some environmental crimes have become quite severe. In many situations, it is possible to bring civil enforcement proceedings in class 4, seeking an order to remedy or restrain environmentally harmful action, as an alternative to bringing criminal proceedings, where the outcome is usually a fine.

• Class 6: appeals by defendants from convictions by magistrates for environmental criminal offences in Local Courts, where prosecutions can also be brought (s 21A) . • Class 7: appeals from magistrates in relation to environmental criminal prosecutions that •

would previously have been heard by the Supreme Court (see Crimes (Local Courts Appeal and Review) Act 2001, ss 32, 43) (s 21B) . Class 8: a range of proceedings under mining and petroleum legislation (s 21C).

Hearings

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reviewing the decision of the primary decision-maker, the case is reheard, with any new evidence taken into account (s 39(3)). Hearings in classes 1, 2 and 3 must be conducted "expeditiously", and with as little formality and technicality as possible (s 38(1)). The Court is not bound by the rules of evidence (s 38(2)).

In all proceedings other than those involving criminal matters, representation can be through an agent, who need not be legally qualified (s 63: the Court's permission is required in relation to class 8 matters).

Conciliation [2.760) The Court can require parties in a pending class 1, 2 or 3 matter to take part in a conciliation conference with a Commissioner (s 34). If the parties reach an agreement, the Commissioner must deal with the matter in line with the agreement. Where agreement is not reached, the parties can agree to let the Commissioner deal with the matter, either with or without a hearing. Otherwise the Commissioner must provide to the Court and the parties a written report identifying the issues in dispute. But this, and anything said in the conciliation conference is not admissible in evidence in later proceedings unless the parties consent.

A special procedure was introduced in 2010 amendments to the Act to deal in particular with merit appeals involving detached single dwellings and dual occupancies, including alterations and additions (s 34AA). The Court must arrange a conciliation conference for these matters. If no agreement is reached, the Commissioner must terminate the conference and dispose of the case on the basis of what has occurred at the conference if the parties agree, or, if not, after holding an immediate hearing. The Commissioner does, however, have the discretion to decide at any stage that this procedure is inappropriate given the particular circumstances of the case.

Neutral evaluation [2.770) The Court can require matters in classes 1-4 and 8 to undergo neutral evaluation paid

for by the parties. The evaluator "seeks to identify and reduce the issues of fact and law in dispute, including by assessing the relative strengths and weaknesses of each party' s case and offering an opinion as to the likely outcome of the proceedings " (Land and Environment Court Rules 2007, r 6.2).

Appeals on questions of law [2.780) An appeal on a question of law may be made to a Judge of the Land and Environment Court against the decision of a Commissioner in classes 1, 2, 3, and 8 (s 56A). If the matter has been heard by a Judge, an appeal may be made on a question of law to the NSW Supreme Court (Land and Environment Court Act 1979, s 57).

An appeal from a decision of the Court under class 4 is made to the Court of Appeal (s 58). An appeal where a party is convicted or ordered to pay costs under class 5 is brought before the Court of Criminal Appeal (Criminal Appeal Act 1912, ss SAA, 5AB).

[2.750) Only judges can exercise the powers vested in the Court under classes 4, 5, 6 and 7 of its jurisdiction (s 33(2) ).

Access to the courts

Classes 1, 2 and 3 of the Court's jurisdiction can be exercised by a Judge or one or more Commissioners (s 33(1)). Commissioners frequently conduct proceedings. Rather than simply

[2.790) It does not necessarily follow that because individuals or public bodies are breaking the law, any public-spirited member of the community has the right to bring an action against them

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in court. If someone can show that they personally have suffered as a result of alleged wrongdoing -for example, if they base their case on private nuisance - they will have no problem in gaining a hearing before the courts. But the common law is much more guarded in giving access where the public interest is at stake. Increasingly, however, broad rights of "standing" to bring civil proceedings to enforce the law have been granted in environmental legislation.

Standing to sue in civil proceedings [2.800] Civil proceedings taken in the public interest can take one of two forms. In some cases, they are simply an alternative to prosecution for a criminal offence, the aim being to prevent the offence from being committed, or to remedy the situation, rather than to punish the offender (see [2.690]).

More usually, the objective is to supervise public bodies, such as local councils and government agencies, by bringing proceedings for judicial review of administrative action (see [2.360]-[2.540]). The aim may be to obtain an order restraining the public body concerned from behaving in an unlawful way; or an order requiring it to do its duty may be more appropriate. Even a simple declaration from a judge on the legal position in the particular circumstances may be sufficient, because generally public officials perform their duty when it is pointed out to them.

Special interest [2.810] In Australia, at common law, the basic position is that a public-spirited citizen or an environmental group or organisation, such as the National Trust or the Australian Conservation Foundation, has standing to sue for injunctions and declarations only if they have a special interest in the subject matter (Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53).

Holders of commercial interests certainly have a "special interest" under this rule. As a result, conservation groups may seek to gain standing by developing commercial interests in a threatened area, through conducting tours or selling articles relating to the area.

Case studies: Establishing special interest Commercial interest [2.820] In Yates Security Services Pty Ltd v Keating (1990) 77 LGRA 165, the plaintiff company brought an action challenging the validity of the Commonwealth Treasurer's revocation of an order under the Foreign Acquisitions and Takeovers Act 1975 (Cth) which prohibited an acquisition of land by a foreign company that proposed to redevelop the site. The argument was based on an alleged failure by the Treasurer to comply with environmental assessment provisions that applied to a listed building on the land (Paddy's Market). The plaintiff wished to redevelop the site itself, and it argued that it should be granted standing on the basis that success in the proceedings would confer a commercial benefit on it, namely the opportunity to negotiate for the acquisition and development of the site. This argument succeeded before Justice Wilcox, but was rejected by the Full Court of the Federal Court. Justices Marling and Pincus denied standing on the grounds that the plaintiff had

[2.850]

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failed to show that it had a feasible proposal to buy and develop the site and the financial means to carry it out. The proposal must be a practical possibility; there must be at least a reasonable likelihood of benefit. A mere opportunity to negotiate did not confer a commercial benefit. Justice Marling held that the plaintiff did not have a special interest because, like any other member of the public, it had the opportunity to negotiate for the purchase of the site and its development regardless of whether or not it won the case.

Cultural interest [2.830] Proof of a commercial interest is not the only basis on which a court will decide that there is a "special interest". In Onus v Alcoa (1981) 149 CLR 27, a group of Aboriginal people sought an injunction against a company that intended to build an aluminium smelter on land that their people had occupied since prehistoric times. They claimed that the development would interfere with Aboriginal relics on the land, and that this would be in breach of the provisions of the legislation. The High Court held that the plaintiffs had a special interest over and above the general public interest, because they would be particularly affected by damage to the relics. Therefore, they could proceed with their action. Not only did the relics have special cultural and spiritual significance for the plaintiffs, but they were also the custodians under Aboriginal law and custom and, in addition, they used them in teaching their children.

Case study: Intellectual and emotional concern [2.840] In Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53, the High Court denied standing to the Australian Conservation Foundation to seek declarations and injunctions in relation to a proposed resort development in Yepoon, Queensland. The ACF claimed that the Commonwealth Minister's decision to give the go ahead failed to comply with legislation designed to ensure that adequate consideration was given to the environmental aspects of the proposal. In denying standing, one judge stated that "a mere intellectual or emotional concern" was not sufficient. This means that the desire to protect and conserve the environment is not on its own sufficient to gain standing.

Judicial review in Commonwealth cases [2.850] Proceedings for judicial review of decisions made under Commonwealth legislation can be brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Under section 5 (1) of this Act only "a person aggrieved" by a decision can bring an action. In Australian Conservation Foundation v Minister for Resources (1989) 76 LGRA 200, a judge at first instance distinguished the decision in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53 (see above). The judge held that the ACF was a "person aggrieved" and therefore had standing to bring an action. The ACF argued that the Minister did not comply with the provisions of what was then the Commonwealth heritage legislation before issuing a licence to export woodchips derived from the South-East forests. Justice Davies argued that the forests in question should be treated as part of the National Estate and that, therefore,

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the issue was not purely local, as the issue in Australian Conservation Foundation Inc v Commonwealth may have been. In deciding the question of standing, he stated that current community perceptions and values have to be considered: public perception of the need for conservation and the role of bodies such as the ACF had increased noticeably in the last ten years. The ACF was the major national conservation organisation, and received substantial government funding. The community expected it to put forward a conservation viewpoint to counter arguments for economic exploitation. Justice Davies concluded that, while the ACF did not have standing to challenge every decision affecting the environment, it had a special interest in the South-East forests, having produced an alternative strategy for their sustainable management that was subject to public debate and discussions with government and industry.

Case study: Who is a person aggrieved? The North Coast Environment Council

[2.860] In North Coast Environment Council Inc v Minister for Resources (1994) 36 ALD 533, the North Coast Environment Council had requested the Commonwealth Minister for Resources to provide a statement of reasons under section 13(4A) of the Administrative Decision (judicial Review) Act 1977. Justice Sackville held that the words "person aggrieved" should not be construed narrowly. In this case, it was enough for the applicant to demonstrate a special interest in the preservation of forests in its "defined area" of activities. Other factors that persuaded Justice Sackville to grant standing under the Act were:

• the North Coast Environment Council's status as a peak environmental organisation for the region in which the dispute was centred • activities by the Council that demonstrated a strong concern for the area • recognition by the Commonwealth Government of the Council as a significant and responsible environmental group • the Council's receipt of grants from the Commonwealth Government • State Government recognition of the Council by including it as a member on advisory committees • the undertaking or coordination by the Council of projects and conferences on environmental issues.

Justice Sackville held, however, that simply formulating objects that demonstrate an interest in and commitment to the preservation of the physical environment would not be sufficient to gain standing.

The Tasmanian Conservation Trust [2.870] In Tasmanian Conservation Trust v Minister for Resources (1995) 37 ALD 73 Justice Sackville applied the factors identified in North Coast Environment Council to conclude that the Trust was also a "person aggrieved" for the purposes of the Administrative Decision (judicial Review) Act 1977.

(2.880)

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Special provisions in legislation [2.880] The decision in ACF v Commonwealth [1980] HCA 53 is now of limited significance in NSW because many NSW statutes now include special provisions allowing anybody at all to bring proceedings to remedy or restrain breaches and threatened breaches of the piece of legislation in question (Corkill v Forestry Commission of NSW [No 2] (1991) 73 LGRA 126 at p 140; Sydney City Council v Building Owners' and Managers' Association of Australia Ltd (1985) 55 LGRA 444; compare Ba/main Association Inc v Planning Administrator for Leichhardt Municipal Council (1991) 25 NSWLR 615 at p 638). This includes:

• the Environmental Planning and Assessment Act 1979 (s 123) • the Heritage Act 1977 (s 153) • the Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986 (s 10) • the National Parks and Wildlife Act 1974 (s 193) • the Wilderness Act 1987 (s 27) • the Threatened Species Conservation Act 1995 (s 147) • the Native Vegetation Act 2003 (s 41) • the Protection of the Environment Operations Act 1997 (s 252) • the Contaminated Land Management Act 1997 (s 96) • the Fisheries Management Act 1994 (s 282) • the Local Government Act 1993 (s 674) • the Water Management Act 2000 (s 336).

In addition, section 253 of the Protection of the Environment Operations Act 1997 allows anyone to bring an action to restrain (but not to remedy) a breach of any NSW Act if the breach is causing, or is likely to cause, harm to the environment. This is despite the fact that this Act is concerned primarily with pollution control. So, for example, this provision could be relied on to bring proceedings under the Mining Act 1992, the Plantations and Reafforestation Act 1999, the Pesticides Act 1999 or the Forestry Act 2012, which do not contain a provision allowing any person to bring proceedings. This provision is not quite as generous as those listed above: it must be shown that there is at least a threat of "harm to the environment". In practice, however, this does not present a major obstacle because "harm to the environment" is defined very broadly (see [9.1140]). It has been held, for example, that it includes harm caused indirectly by the granting of a pollution licence by the EPA in breach of the provisions of the legislation (Brown v EPA (unreported, Land and Environment Court, 12 November 1992)). These broad standing provisions do not apply to Commonwealth legislation, but provisions in specific pieces of Commonwealth legislation have also relaxed common law standing requirements. The Industrial Chemicals (Notification and Assessment) Act 1989, for example, allows any person to bring an action for an injunction (s 83). However, this only allows civil enforcement of criminal law (see [2.690]), not judicial review proceedings (see [2.360]). Under the Environment Protection and Biodiversity Conservation Act 1999, either the Minister or an "interested person" has standing to bring an action for an injunction to prevent a "contravention" of the Act. An "interested person" includes someone who has "engaged in a series of activities for protection or conservation of, or research into, the environment" during the past two years. It also includes organisations that have engaged in such activities in pursuance of their objects

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during this period (s 475). There is no requirement that the activities of the organisation relate to the particular environmental issue at stake in the proceedings.

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(2.910]

Case study: Costs Costs denied

Private prosecutions [2.890] The general position is that where a wrongdoer's behaviour amounts to a criminal offence, anybody can bring a private prosecution in the Local Court, unless there is a special provision in the legislation that restricts or abolishes this right (for example Protection of the Environment Operations Act 1997, s 217).

Where the offence is a serious one that can only be tried in a higher court, an ordinary citizen cannot ordinarily see the matter through to its conclusion. Under the Protection of the Environment Operations Act 1997, however, members of the public can bring a prosecution in the Land and Environment Court with the leave of that Court, in cases where the Environment Protection Authority has not itself responded (s 219; see [9.2070]). In practice, members of the community are unlikely to want to bring criminal proceedings because they must prove guilt beyond a reasonable doubt, and they do not have the legal powers to gather evidence possessed by government enforcement agencies. In addition, they are more likely to be interested in obtaining an order in civil proceedings to prevent and remedy environmental harm rather than the punishment of an offender.

Financial barriers to environmental litigation

[2.910] Minister for Planning v Walker (No 2) [2008] NSWCA 334, raised the issue of costs where the plaintiff had been unsuccessful in arguing that principles of ecologically sustainable development had to be taken into account by the Minister in approving a concept plan for a residential project on a flood constrained coastal plain under Part 3A of the Environmental Planning and Assessment Act 1979 prior to its repeal. In the application for costs, the Court of Appeal decided that the case involved public interest litigation (at [8]):

[T]here is clearly a public interest in the principles of ecologically sustainable development (ESD) and in climate change flood risk in relation to properties near the coast. In my opinion, it is clear that this interest is not confined to a small number of people in the immediate vicinity of the development in this case. I would infer that the prime motivation of this litigation was to uphold the rule of law in relation to that matter of public interest. The Court also found additional factors present which justified the decision not to award costs against the unsuccessful plaintiff. The proceedings raised a novel point of law, and the plaintiff was successful in the Land and Environment Court. Even a majority of the Court of Appeal thought that the Minister's failure to take into account ESD considerations was contrary to good practice, although it did not invalidate his decision. Costs awarded

Costs [2.900] In addition to the difficulties of gaining standing to bring an action, there are potential financial barriers. Engaging in litigation can be an expensive process. Unless a litigant is legally aided under NSW legislation and has been granted an indemnity against costs (see [2.970]), they will not only have to pay their own legal fees if they are unsuccessful, but they may also have to pay the costs incurred by the party being sued.

The normal rule is that courts should ordinarily award costs against the unsuccessful party (Uniform Civil Procedure Rules 2005, r 42.1). The courts will, however, take into account the fact that proceedings have been brought in the public interest in deciding whether or not to apply the normal rule (Oshlack v Richmond River Council [1998] HCA 11; Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39). But, the mere fact that there is a public interest involved in the litigation or that the community organisation bringing the proceedings has the public interest as its object and stands to make no financial gain, does not mean that costs will not be awarded against it (Save The Ridge Inc v Commonwealth [2006] FCAFC 51; Lawyers for Forests v Minister for the Environment, Heritage and the Arts (No 2) [2009] FCA 466). In Minister for Planning v Walker (No 2) [2008] NSWCA 334, the Court of Appeal held that to displace the normal rule, more is needed than that the proceedings were brought in the public interest.

The substantive issue in Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39 was whether the applicable planning rules permitted the local council to approve a development greater than two storeys in height. The Court of Appeal held that costs should be awarded against the Progress Association which unsuccessfully challenged the approval. Basten JA, with whom McColl JA agreed, found three factors favouring this conclusion: the defendant was a commercial enterprise, and not the State or a governmental authority; the question of public interest was a relatively discrete point of interpretation, not one having broad ramifications for the community at large or for protection of the natural environment; and the private interests of members of the Progress Association were involved insofar as the development might affect the amenity of the area in which they lived (at [11]). In Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Natural Resources (No 3) [2010] NSWLEC 59 the Chief Judge of the Land and Environment Court emphasised the nebulous nature of the concept of public interest, pointing out that there is a public interest in social and economic development as well as environmental protection. In light of this, he drew specific attention to the need to protect the particular public interest in ensuring access to justice to those seeking to enforce environmental law. On the facts in that case, he applied the normal costs rule and awarded costs. One of the factors he emphasised was that those challenging the validity of a mining exploration licence for mining

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[2.960]

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Providing security for costs activity had, as the owners of highly productive agricultural land, the financial incentive and means to fund the litigation. Another consideration was that the licence involved was only for exploration, not mining, and it involved minimal damage to the environment. Compare Gray v Macquarie Generation (No 2) [2010] NSWLEC 82 where Paine J applied the principles in the Caroona decision and ordered that each party pay its own costs after dismissing the argument that the environment protection licence issued by the Environment Protection Authority to the power station did not authorise the emission of carbon dioxide, while allowing a related argument to proceed. The fact that an unsuccessful party is unable to meet a costs order is not a reason for not making the order (Kennedy v NSW Minister for Planning [2010] NSWLEC 269).

Capping costs [2.920] Under rule 42.4 of the Uniform Civil Procedure Rules 2005, a court has the power to specify the maximum costs which can be recovered. In Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263, the Society alleged that Delta had polluted waters in contravention of the pollution legislation. A majority of the Court of Appeal upheld a decision by Paine J early in proceedings before the Land and Environment Court to cap costs at $20,000 in spite of claims by Delta Electricity that its likely costs would be over $230,000. In this context, in addition to the public interest, the Court of Appeal took into account that unlimited costs orders would seriously undermine the use of broad standing provisions in legislation to prevent breaches of environmental protection laws (see [2.880]).

Land and Environment Court Class 4 [2.930] The Land and Environment Court Rules 2007 specifically provide that the Land and Environment Court has the discretion not to make a costs order against an unsuccessful litigant in judicial review and civil enforcement proceedings (Class 4) "if it is satisfied that the proceedings have been brought in the public interest" (r 4.2(1)). Pursuant to this, the Court has held that although ordinarily there must be an additional factor beyond the public interest before costs against an unsuccessful litigant are waived (for example, the legal issue is a novel one of general significance), in some situations the public interest might be so considerable that this in itself will suffice (Anderson on behalf of the Numbahjing Clan within the Bundjalung Nation v NSW Minister for Planning (No 2) (2008) 163 LGERA 132 at [9]-[11]). An example of this, given in the Anderson decision, was an "unsuccessful proceeding, based on a good arguable case, brought to stop or limit the development of one of the last habitats of an endangered species".

Land and Environment Court Class 1 and Class 2 [2.940] When the Land and Environment Court is hearing merit appeals (Classes 1 and 2 and some Class 3 proceedings), the general rule is that each party bears .its own costs (Land and Environment Court Rules 2007, r 3.7).

[2.950] A related issue is whether public interest litigants should be required at the outset to provide security to make sure that they are in a position to meet any costs of the other party that they are eventually required to pay. The Land and Environment Court again has the discretion not to make an order for the security of costs against an unsuccessful litigant "if it is satisfied that the proceedings have been brought in the public interest" (Land and Environment Court Rules 2007, r 4.2(2)). In Melville v Craig Nowlan & Associates Pty Ltd [2002] NSWCA 32, an action was brought under section 123 of the Environmental Planning and Assessment Act 1979 seeking to have a development consent declared invalid. A majority in the Court of Appeal made it clear that there was no rule preventing an order for security of costs being made against an individual who had no money. The Land and Environment Court had a broad discretion. On the facts, the Court of Appeal held that, although the plaintiff had an arguable and bona fide case, an order for security for costs should be made because:

• • • • •

she had little money others were in a position to bring proceedings under the broad standing provisions in the NSW legislation if she withdrew the sum of money required as security was relatively low failure to require security could materially damage the applicant for development consent the application for security for costs was made promptly

• the application was not oppressive.

See also KP Cable Investments Pty Limited v Meltglow Pty Ltd (1995) 56 FCR 189 at 197-198; Burrell Place Community Action Group Inc v Griffith City Council [2009] NSWLEC 120. There are, however, public interest cases in the Land and Environment Court where judges have exercised their discretion in favour of not making orders for security for costs, including cases where the claimant was indigenous. See Carriage v Stockland Development Pty Limited [2004] NSWLEC 321 (where an impecunious Aboriginal person had a special relationship to the land in question); Carriage v Stockland (Constructors) Pty Ltd [No 5] [2003] NSWLEC 197; Williams v Pardoe [2003] NSWLEC 363; Hunter Ecologically Sustainable Employment Group Inc v HEZ Pty Ltd [2003] NSWLEC 357 (where there was a voluntary association with limited funds); and Belmore Residents Action Group Inc. v Canterbury City Council [2005] NSWLEC 258.

Undertakings to pay damages [2.960] An applicant for a court order may want to apply for an immediate order (an interlocutory injunction) to preserve the status quo from imminent action (for example, native vegetation clearance) until the issue of legality is determined by a court. In these circumstances, the court has a discretion as to whether it provides immediate relief. The exercise of this discretion is discussed in detail by the Chief Judge of the Land and Environment Court in Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806. One consideration is whether the applicant is prepared to give an undertaking as to damages, that is, to agree to compensate for any damage caused to the other party if the application is unsuccessful. However, failure to give

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an undertaking as to damages in environmental litigation where open standing provisions are relied on (see [2. 790]-[2.890]) is not determinative: it is simply one issue to be considered.

Legal aid Legal aid in State matters [2.970] Legal Aid NSW is responsible for the provision and administration of legal aid and other legal services in NSW. Where the activity or proposal raised a matter of "substantial public concern" about the environment, legal aid was available for public interest environmental law matters in the Land and Environment Court in class 1 (merits appeal), where the hearing was before a judge, and class 4 (judicial review) matters, as well as appeals from the Court. However, as of 1 July 2013 legal aid is no longer available for public interest environment matters.

Legal aid in Commonwealth matters [2.980] Legal aid is also not available under Legal Aid NSW policies for public interest environment matters which are covered by Commonwealth legislation or come within the Commonwealth jurisdiction. Legal assistance for Commonwealth public interest environment matters may be obtained under the Federal Government's Public Interest and Test Cases Scheme. Under the Commonwealth scheme there is a means and a merit test. Also, there is no indemnity against an adverse costs order where the applicant's legal proceedings are unsuccessful. What this means is that, where a legally assisted person is unsuccessful in legal proceedings, they are not provided with statutory protection so they do not have to pay costs awarded to the successful party. See Commonwealth Guidelines for Legal Financial Assistance 2012 (available at: https://www.ag.gov.au/LegalSystem/Legalaidprogrammes/ Commonwealthlegalfinancialassistance/Pages/Commonwealthpublicinterestandtestcases.aspx} for detailed information on how the Scheme operates and the requirements that need to be satisfied when applying for legal assistance.

The Environmental Defender's Office [2.990] The Environmental Defender's Office (NSW) (EDO) is a community legal centre specialising in public interest environmental law, assisting individuals and community groups working to protect the built and natural environment. It is part of a national network of Environmental Defender's Offices that provide similar services in other States and Territories.

The EDO is a good starting point for getting legal advice on a problem or for finding out more about environmental law in general. If you need advice, you should contact them as early as possible, as they can offer a range of services. Sometimes, the EDO runs cases in court if there is an important point of public interest at stake. Services offered include:

• initial free advice • written advice where a public interest matter is involved, including scientific assessment and advice

[2.990]

• • • • •

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representation in public interest environmental litigation publications on environmental law and public rights workshops, seminars and conferences commentary and submissions on draft environmental legislation reviews of existing environmental laws and suggestions for law reform.

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3 Land use planning Amelia Thorpe Faculty of Law University of New South Wales

Plans and plan making .............................................................................................................................................. [3.20] Local Environmental Plans ..................................................................................................................................... [3.90] How LEPs are made ................................................................................................................................................ [3.280] State environmental planning policies .......................................................................................................... [3.380] How SEPPs are made ............................................................................................................................................ [3.590] Challenging the validity of plans ....................................................................................................................... [3.51 OJ Development control plans and council policies ....................................................................................... [3.670] Identifying the relevant planning controls ................................................................................................... [3. 71 OJ

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environment, community needs, cultural significance, and economic sustainability, planners aim to improve our quality of life and create vibrant communities. As well as assessing development proposals and devising policies to guide future development, planners work in areas as diverse as housing, energy, health, education, communications, leisure, tourism and transport. They create new, and revitalise existing, public spaces, conserve places of heritage and enhance community value. The important work planners do is gaining increasing recognition as communities place greater emphasis on "liveability", environmental sustainability, the design and feel of places and public space. People and decision-makers are also increasingly interested in managing urban growth effectively in order to build a nation worth inheriting for future generations.

Greater Sydney Commission Act [3.05] The Greater Sydney Commission Act 2015 (NSW) (GSC Act) was passed and received assent in November 2015 but at the time of writing had not yet commenced. This legislation makes major changes to land use planning in NSW.

The GSC Act inserts a new Part 3B Strategic Planning into the Environmental Planning and Assessment Act 1979 (NSW). This significantly alters the nature of land use planning in NSW by providing for new strategic plans and a clear hierarchy between these and LEPs. The Act makes provision for two types of strategic plan: regional plans and district plans (s 75AA). Regions and districts may be declared by the Minister by order published on the NSW Planning portal (s 75AB). District plans must give effect to any applicable regional plan, and LEPs must give effect to any applicable district plan or, where there is no such district plan, to any applicable regional plan (s 75AI). The existing document entitled A Plan for Growing Sydney (2014) is taken to be the initial regional plan for the GSR. The GSC Act also provides for the establishment of a Greater Sydney Commission (GSC) to lead land use planning in the Greater Sydney Region (GSR). Along with a range of other consent and advisory functions (ss 9, 10, GSC Act), the GSC may make LEPs for local government areas within the GSR (ss 24, 53A, EPA Act), and may make district and regional plans within the GSR and regions and districts in any other part of the state declared by the Minister (s 75AB). [3.10] In this Chapter, please note the following abbreviations:

• the "Act" or "EPA Act" refers to the Environmental Planning and Assessment Act 1979 (NSW) • the "Minister" refers to the Minister administering this legislation (currently the Minister for Planning) • the "Department" refers to the Planning Department (currently the Department of Planning and Environment) • the "Secretary" refers to the Secretary of the Department (previously known as the Director-General) • "Regulation" refers to the Environmental Planning and Assessment Regulation 2000 (NSW) • "Consent authority" refers to the body responsible for granting development consent, frequently a local council.

chapter 3 Land use planning

(From: https://www.planning.org.au/becomeaplanner, "What is Planning?") The EPA Act sets out a framework for planning comprising two key processes: l.

Strategic planning (forward planning), which provides an opportunity for government, landowners and the wider public to participate in the development of an overall vision for the future in the form of an agreed land use plan or plans.

2.

Development control (assessing development proposals), in which potential projects are assessed against such plans.

This Chapter deals with the first of these processes, strategic or forward planning - that is, it deals with plans and plan making. It considers the following topics:

• the range of land use planning documents • the relationship between planning instruments and development control • recent trends in land use planning law • local environmental plans (LEPs) • state environmental planning policies (SEPPs) • the relationship between various land use plans • the making of planning instruments • challenges to planning instruments • development control plans • how to identify the planning controls applicable to a particular property Chapter 5 deals with decision-making at the development control stage.

Plans and plan making [3.20] Planning is a broad term with many definitions. The Planning Institute of Australia (PIA) defines planning as: "the process of making decisions to guide future action". PIA goes on to explain:

The planning profession (which is also referred to as "urban planning" or " town planning") is specifically concerned with shaping cities, towns and regions by managing development, infrastructure and services. Planners are professionals who specialise in developing strategies and designing the communities in which we live, work and play. Balancing the built and natural

Other forms of planning [3.30] There are also other forms of forward planning that are dealt with in other chapters. These include:

• the assessment and allocation of Crown land, including the reservation and dedication of Crown Land for special uses, such as national parks and state forests (dealt with in Chapter 4) • planning for cultural and natural heritage protection (dealt with in Chapter 17) • catchment management (dealt with in Chapter 16).

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Other chapters address special applications of planning instruments, for example, Chapter 11 (environmental planning controls relating to agriculture) and Chapter 14 (planning requirements in coastal areas).

[3.50]

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protecting and conserving native animals and plants controlling advertising

The Act defines "environment" as including "all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings" (s 4(1)).

Land use plans [3.40] The fundamental documents through which land use plans are set out in NSW are environmental planning instruments (EPls). EPis are legally binding. Two types of EPis may be made under the EPA Act:

• •

Local environmental plans (LEPs) State environmental planning policies (SEPPs)

EPis may be made "for the purposes of achieving any of the objects" of the EPA Act (s 24). The objects (s 5) are: (a)

to encourage: (i)

the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,

(ii)

the promotion and coordination of the orderly and economic use and development of land,

(iii)

the protection, provision and coordination of communication and utility services,

(iv)

the provision of land for public purposes,

(v)

the provision and coordination of community services and facilities,

(vi)

the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities and their habitats, and

(vii)

ecologically sustainable development, and

(viii)

the provision and maintenance of affordable housing, and

(b)

to promote the sharing of the responsibility for environmental planning between the different levels of government in the State, and

(c)

to provide increased opportunity for public involvement and participation in environmental planning and assessment.

Without limiting that broad scope, the Act gives some guidance as to how EPis may achieve those objects by indicating that EPis may make provision for (s 26(1)):

• protecting, improving or utilising, to the best advantage, the environment • controlling development, including by imposing development standards • reserving land for public purposes, including open space, national parks, cemeteries, hospitals, railways and schools • providing, maintaining and retaining, and regulating affordable housing • protecting or preserving trees and vegetation

The Act makes provision for a range of supplementary planning documents. Unlike EPis, these are not legally binding. They include:

• development control plans • Practice Notes and circulars • policies and strategies • Directions made under s 117

Land use planning in NSW also includes a small number of plans made under repealed provisions of the EPA Act and under older legislation. These continue in force as deemed EPls. When originally enacted in 1979, the EPA Act made provision for regional land use plans as well as state and local plans. Regional environmental plans (REPs) made under the old provisions of the Act are now deemed to be SEPPs (EPA Act, Sch 6, cl 120). REPs in force when the new provisions came into effect in 2009 were to be reviewed "as soon as practicable" and new EPis made to transfer their contents to appropriate new or existing EPis (EPA Act, Sch 6, cl 121). That process is still ongoing. At the time of writing there were 22 REPs in force as deemed SEPPs. Prior to the enactment of the EPA Act, land use planning was regulated under Part XIIA of the Local Government Act 1919. This provided for land use plans in the form of planning scheme ordinances (intended to be definitive land use plans) and interim development orders (intended to be temporary measures pending the making or suspension of a planning scheme ordinance, though in practice many areas did not reach the stage of having their own planning scheme ordinance). These ordinances and orders are deemed to be EPis under the EPA Act (see Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 (NSW), and they are gradually being replaced by LEPs. There are currently 18 remaining in force (July 2015).

Planning instruments and development control [3.50] The process of shaping cities, towns and regions described in the definition of planning above is rarely undertaken directly. Rather, the realisation of the visions set out in land use plans depends largely on the decisions of landowners - individuals, developers, local, state or federal government - as to how and when they will use their land. For example, a decision that more housing, or more of a certain type of housing, should be provided in a certain area will require the owner of the land in that area to build housing, or to pass it on to someone else who will. State and local planning departments rarely have any power to compel landowners to use their land in accordance with the vision set out in an EPI. A provision in an EPI for commercial or mixed use development where currently there were heavy industrial uses, for example, would not require the owner or operators of those industrial uses to cease operations. Instead, the EPA Act sets out a process so that when landowners make decisions about the future development of their land, they do so in accordance with relevant land use plans. The EPA Act includes two key mechanisms for achieving consistency with the direction set out in EPis:

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classification of development (ss 76, 76A, 76B)

2.

assessment of development (s 79C{l)(a)).

(3.50]

Classification of development [3.60] The EPA Act sets out three main classes of development. 1.

Development that does not need consent (s 76). An EPI may specify development that may be carried out without the need for development consent. Other provisions that apply to the particular land under the EPI (for example, development standards) must still be complied with.

2.

Development that needs consent (s 76A). An EPI may specify development that may not be carried out unless consent has been obtained and is in force. Such development must be carried out in accordance with the development consent and with the EPI.

3.

Development that is prohibited (s 76B). An EPI may specify development that is prohibited. Such development cannot be carried out on land to which the provision applies, with or without development consent.

One of the most important provisions of an EPI is the division of the area into land use zones in which various uses are classified as: permitted, permitted with consent, or prohibited.

Assessment of development [3.70] The other section that is crucial in encouraging consistency with the contents of EPis is section 79C, which sets out the factors that consent authorities must consider when determining a development application. This provides that consent authorities must consider any relevant provisions of any EPI applying to the land in question (s 79C(l)(a)(i)).

Section 79C also provides scope for the consideration of other planning documents in the development control process. Draft EPis and development control plans must be considered (ss 79C(l)(a)(ii) and (iii)), as well as broader considerations of the likely impact of development, the suitability of the site and the public interest (ss 79C(l)(b) - (e)), to which other planning documents such as policies and strategies may also be relevant.

[3.90]

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different planning controls. Amendments in 2005 allowed the Minister to stipulate the form and content of an LEP through the use of a standard instrument, which is a template that has now been adopted by almost all councils across NSW (94% as at June 2014). Legislative changes have also established a firm hierarchy between EPis, with SEPPs applying in cases of inconsistency with LEPs. More recent amendments have emphasised the non-binding status of development control plans. Although development control plans (DCPs) were never treated as legally binding, they were often given considerable weight in determining development applications. The process for making land use plans has also been streamlined. Previously, the EPA Act specified a number of steps to be followed in the making of an LEP, including environmental studies, consultation and public exhibition. Following amendments made in 2008, the process for making an LEP is set on a case-by-case basis in a "Gateway determination" made by the Minister. The requirements for the making of SEPPs were also streamlined. Another feature is increased use of the internet, with EPis, planning directions, circulars and notes and the steps in the plan making process all published on the Department's website or NSW legislation website. EPis now take effect when published on the NSW legislation website rather than when published in the NSW Government Gazette. In 2015, the Department introduced an online planning "hub" bringing together a range of planning information and interactive tools intended to make it easier to identify and understand the planning controls applicable to particular places. These shifts in the relationship between state and local government, with less scope for variation between local authorities and greater Ministerial control over planning processes, reflect changing approaches to the Act's objects in section 5(6) of promoting "the sharing of the responsibility for environmental planning between the different levels of government" and in section 5(c) of providing "increased opportunity for public involvement and participation in environmental planning and assessment". The Planning Bill introduced in 2013 continued these trends, with an emphasis on hierarchies, consistency and simplicity across the planning system.

Local Environmental Plans [3.90] A local environmental plan (LEP) consists of the written text and a map or series of maps.

Recent tre nds in the regulation of la nd use plannin g [3.80] The EPA Act has been amended over 150 times since its passage in 1979, and the

provisions regulating land use planning have changed in a number of ways. Several amendments have been made to streamline the process of land use planning, reducing both the number and variety of land use plans in NSW. This includes reducing the range of EPis from three types (SEPPs, REPs and LEPs) to two (SEPPs and LEPs), as well as consolidation to reduce the number of SEPPs. A significant change to the range of land use plans is the adoption of a Standard LEP. Previously, there was considerable variation between different councils. Most councils also had multiple LEPs in force at the same time, so a given piece of land might be covered by many

The text includes:

• a description of the aims of the plan • zoning tables categorising different areas within the council area so as to set out the types of development that are permitted or prohibited within each area • definitions of some of the words used in the LEP and in particular in the zoning tables • a description of development that is exempt from development control (exempt development) and development that is permitted without obtaining development consent if it complies with specified standards (complying development) (see [3.420])

• development standards that particular types of development have to meet • provisions for particular types of development such as subdivision and residential flat buildings within the council area.

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[3.100]

There will usually be several maps. These maps:

• identify the area to which the LEP applies • set out the zonings of different areas within the council area • identify other particular sub-areas in the council area, such as heritage conservation areas, acid sulfate soils, and flood management areas • identify where development standards apply, such as building heights and floor space ratios. An LEP when made can be found both on the NSW legislation website and usually on the council's website. A hard copy of the LEP is available for inspection without charge at the council's offices and also usually at a council's library.

The Standard LEP [3.100] Previously, councils determined the form and content of their LEPs individually. There

was considerable variation between councils, with many thousands of different zones and land use definitions in operation across NSW. Amendments to the EPA Act in 2005 enabled the Minister to stipulate the form and content of LEPs through the introduction of a standard instrument. The standard instrument sets out a template that all councils are required to use. The Standard Instrument Principal Local Environmental Plan can be found on the NSW legislation website (see http:// www.legislation.nsw.gov.au/maintop/view/inforce/epi+ 15 5 a+2006+cd+0+ N) and shows the "LEP template". The Standard Instrument (Local Environmental Plans) Order 2006 (as amended) also published on the NSW legislation website contains the "LEP template" plus clauses including those detailing how mandatory, optional and additional provisions should be addressed. Some clauses in the Standard LEP are mandatory and other clauses are optional. In some circumstances, local content may be added to clauses provided in the template (compulsory or optional) provisions, and councils can also include some separate local clauses. LEP maps must conform to the "Standard technical requirements for LEP maps". To assist in the preparation of local clauses, the Department has prepared model clauses that councils may choose to adopt as they prepare their LEPs. These cover: issues of common concern, such as minimum lot sizes, land to which plans apply, and development in areas subject to aircraft noise. Since the introduction of the standard instrument in 2006, there has been a program of repeal of older LEPs and the making of new principal LEPs for each council area in a standard form. By June 2014, 94% of councils across NSW had completed an LEP based on the standard instrument.

Zoning [3.11 0] A key function of LEPs is to divide the relevant area into zones, such as rural, residential, industrial, mixed use, environmental conservation and public recreation purposes.

Land use zones are set out in a table, with text for each setting out:

[3.120]

• • • •

chapter 3 Land use planning

objectives of the zone development permitted without consent, development permitted with consent, and prohibited development.

There are 35 zones in the Standard LEP. As well as prescribing objectives for each zone and uses to be included in each of the categories, the template also includes directions at the start of the land use table and in each of the zones. Additional local objectives may be included in a zone, provided they are consistent with the core objectives for development in the zone (which must be listed first). Additional uses may be added to (but not removed from) the list of development that is permitted or prohibited in a zone, provided they are one of the types of development listed in Direction 5 at the start of the land use table in the Standard Instrument (LEPs) Order 2006 (see also LEP Practice Note PNll-002). Under clause 2.3(2) of the Standard LEP, the consent authority must have regard to the objectives for development in a zone when determining a development application of land within the zone. This is a shift from some older LEPs, which required that development be consistent with zonal objectives. In Conservation of North Ocean Shores Inc v Byron Shire Council (2009) 167 LGERA 52, the relevant LEP required the Council to be of the opinion that the proposed development was consistent with the objectives of the zone before granting consent for the development. In this case the Court found that the Council was not of that opinion but _consent had still been granted for a temporary place of assembly for a temporary music festival on land partly zoned Habitat. As a result, the Court set aside the consent.

Case study: Consistency with objectives [3.120] In 1991 Coffs Harbour City Council resolved to construct an ocean outfall

at the "Look At Me Now Headland" to dispose of effluent. However, the objectives of the relevant zone were to enable the land to be developed for recreational purposes. Coffs Harbour Environment Centre commenced proceedings claiming that the proposed sewer outfall was contrary to the aims and objectives of the zone under the EPI. Although the works were to be mainly underground, the reserve would be closed for two years and, when open, some areas would not be available for public recreation. Distinguishing between compatibility with and promoting public recreation, the NSW Court of Appeal held that the proposed development was not consistent with the zoning objective and so was prohibited under the EPI (Coffs Harbour Environmental Centre v Coffs Harbour City Council (1991) 74 LGRA185). LEPs are complex documents, and it is important to read them as a whole and not simply refer to the zoning tables. Definitions provide important guidance as to which uses sit within the various zones. Further, even if a type of development is permitted in a particular area according to the zoning table, for example, a particular proposed development of that type may not comply with specified development standards (see [5.1230)). Conversely, a public utility may be able to undertake a project that is otherwise prohibited by a LEP (see [1.130)).

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Definitions [3.130] EPis include definitions of the uses set out in the land use zoning table - for example

"agriculture", " attic ", "building", "dwelling house" and "home industry". The Standard LEP includes a Dictionary containing approximately 250 definitions. Immediately prior to the introduction of the Standard LEP in 2006, there were some 1,700 definitions in use. This number has been reduced with the implementation of the Standard LEP. Definitions may be critical in determining whether development is permissible. The courts have often had to determine whether a council has made the correct decision as to whether a particular proposal falls within one definition rather than another (see below and [1.180]; see also Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; 136 LGERA 288; [2004] NSWCA422). In an effort to ensure that expressions and definitions were used consistently in NSW planning instruments, a set of model provisions were devised. LEPs usually adopted the definitions spelled out in these model provisions. Where model provisions were adopted it is necessary to read not only the local LEP but also the Environmental Planning and Assessment Model Provisions 1980 (NSW) to discover the meaning of words defined in the LEP. With the introduction of the Standard LEP, new LEPs have ceased to adopt the model provisions. However, the model provisions will still apply for those LEPs existing as at 30 September 2005 that adopted those model provisions.

Definitions in case low (3.140] A number of cases have dealt with the meaning of terms in EPis. Examples include:

• whether a mushroom composting process is a "rural industry" (Mittagong Mushrooms Pty Ltd v Narambulla Action Group Inc (1998) 97 LGERA 333) • whether a poultry farm is "agriculture" or a "rural industry" (Hunt v Blacktown City Council (1999)107 LGERA 156) • what constitutes a "boarding house" (Fortunate Investments Pty Ltd v North Sydney Council (2001) 114 LGERA 1) • whether a mosque is a "church" (House of Peace Pty Ltd v Bankstown City Council (2000)106 LGERA 440) • what constitutes a "residential flat building" and "cluster development" (Allison v Gosford City Council (2001) 112 LGERA 420) • what constitutes "cluster housing" (Guilfoile v Lake Macquarie City Council (2002)119 LGERA300) • what constitutes "commercial premises" (Walker v North Sydney Council (2002) 110 LGERA397) • whether land filling dependent on winning material from an existing quarry is an •

"extractive industry" (Monier PGH Holdings Ltd v Blacktown City Council (1998) 102 LGERA24) what constitutes a "floodway" (Vanmeld Pty Ltd v Fairfield City Council (2000)106 LGERA454)

[3.160)

chapter 3 Land use planning

• whether water boring and bottling is an "industry" or a "rural industry" (Liauw v Gosford City Council (2004) 136 LGERA 349) • what constitutes an "allotment" (Issa v Burwood Council (2004) 137 LGERA 221) • what constitutes a "drive-in takeaway establishment" (Woolworths Ltd v Pallas Newco Pty Ltd and another (2004)136 LGERA 288) • the meaning of "storey" (Walsh v Parramatta CC (2007) 161 LGERA 118) • the meaning of "ancillary development" (Pease v Sharpe (2007) 158 LGERA 21) • whether a supermarket is a "general store" or a "shop" (Hastings Cooperative Ltd v Port Macquarie Hastings Council (2009) 167 LGERA 205) • whether a private school is a "community facility" (Cranbrook School v Woollahra Council (2006) 66 NSWLR 379) • whether an Aldi store is a "shop" or "local shop" (Aldi Stores v Newcastle City Council [2010] NSWLEC 227) • whether a pet transportation business is a "commercial premises" or an "airport-related • •

land use" and/or "air freight forwarder" (Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147) whether a studio above a garage is a "dwelling" (Mike George Planning Pty Ltd v Woollahra Municipal Council (No 3) [2014] NSWLEC 123) whether seniors housing fell within the use of "residential flat buildings" (Abret v Wingecarribee Shire Council [2011] NSWCA 107)

Case study: Defining uses (3.150] A decision with broad implications for the definition of "shop" is that of

Westfield Management Pty Ltd v Gazcorp Pty Ltd (2004) 135 LGERA 220. The council had approved the use of a large building as a warehouse clearance outlet with 63 tenancies. Shops were a prohibited use on the land under the zoning in the relevant EPI. The development had been constructed and opened by the Minister. The court found that the definition of "shop" was wide enough to include any form of selling of items by retail, and that the development was prohibited under the relevant EPI. The court ordered that Gazcorp Pty Ltd cease the use.

Categories of development (3.160] One important function of EPis is to specify whether consent is required for various categories of development and what processes must be followed to obtain consent for land uses within each of those categories.

In addition to the three categories listed above (permitted without development consent, permitted with development consent, and prohibited), which are listed in zones, the EPA Act makes provision for several other categories of development.

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[3.170)

There are a number of ways in which developments may be declared to fall within these categories. Depending on the category, these include: the regulations, SEPPs, development control plans and declarations by the Minister. The categories of development that may be declared in an LEP are:

• exempt development (s 76(2)) • complying development (ss 76A(5), 84 - 87) • advertised development (s 29A) • designated development (s 29).

Exempt and complying developments cover minor and routine developments that are unlikely to have significant impact. Exempt development must be of minimal environmental impact and

may be carried out without the need for development consent (with some· exceptions, including wilderness areas, critical habitat and land including heritage items listed under the Heritage Act 1977). Exempt development must be carried out in accordance with other provisions of the relevant EPI, and approvals, licences, permits or other authorities may still be required under other legislation. Part 5 of the Act (explained in Chapter 6) does not apply to exempt development. Complying development must meet certain predetermined development standards, and a complying development certificate must be obtained from the council or a private certifier before the development can proceed. The Standard LEP includes compulsory provisions for exempt and complying development (Part 3 ). These refer to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 for a list of exempt and complying development, as well as schedules where councils can include additional exempt or complying development not specified in that SEPP. Exempt or complying development must not be carried out on environmentally sensitive areas (cl 3.3 ). Advertised and designated development cover developments that are likely to have a more significant environmental impact. Advertising and notification requirements apply to both, allowing members of the public to make submissions on the proposal. For designated development, which covers high impact developments, additional environmental assessment and merit review provisions also apply. In practice, these high impact developments are rarely designated in LEPs. Most advertised and designated developments are declared in the Regulation. The various categories of development are discussed further in Chapter 5.

[3.180)

chapter 3 Land use planning

• height, bulk, scale, siting, density and design • site coverage • density and intensity of use • open space and landscaping • roads, parking and traffic • drainage and earthworks • service prov1s10n • pollution control. Some developments, such as service stations, drive-in theatres and drive-in take-away food shops, tend to attract very detailed development standards. The Standard Instrument includes development standards for minimum subdivision lot sizes, height of buildings, and floor space ratio as optional clauses (Pt 4). Where such standards are adopted, councils set out their own objectives and numerical standards for each of the relevant clauses. If a council wishes to have such development standards in its area, then they must be included in the principal LEP and not through some other mechanism (such as a DCP). Development standards need not follow zone boundaries. For example, different building height limits may be identified for different parts of a zone. Development standards can also be fixed by regulations and development control plans (operating as guidelines only, as DCPs are non-binding).

Development standard or prohibition? [3.180] While the general rule is that developments must comply with development standards, there is some flexibility around this through SEPP 1 (for pre-October 2005 LEPs) and clause 4.6 of the LEP template (for post-October 2005 LEPs). Clause 4.6 provides for exceptions to development standards, enabling the granting of consent even though the development would contravene a development standard imposed by an EPI. Such exceptions would not apply, however, to development standards that are expressly excluded from the operation of this clause. Clause 4.6 is a compulsory clause.

Sometimes there is a question about whether a provision is a development standard, in which case such exceptions can apply, or a prohibition, to which SEPP 1 and cl 4.6 do not apply.

Development standards [3.170] LEPs contain development standards, which specify requirements or fix standards in relation to the carrying out of development. Generally, if a proposed development does not comply with a development standard, it cannot be approved, regardless of whether it is permissible in the relevant zone.

Examples of development standards are given m section 4(1) of the Act. They include requirements in respect of:

•

site areas, dimensions and setbacks

The courts have experienced considerable difficulty in deciding whether particular provisions are a development standard or a prohibition and various tests and approaches have been applied. See, for example: Woollahra Municipal Council v Carr (1985) 62 LGRA263; North Sydney MC v PD Mayoh Pty Ltd (No. 2) (1990) 71 LGRA 222; Strathfield Municipal Council v Poynting (2001) 116 LGERA319; Lauriev Land and Environment Court (NSW) (2002) 123 LGERA 179; Residents Against Improper Development Inc. v Chase Property Investments Pty Ltd (2006) 149 LGERA 360; Blue Mountains CC v Laurence Browning Pty Ltd (2006) 150 LGERA 130;

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Agostino v Penrith City Council (2010) 172 LGERA 380; Huang v Hurstville City Council (No 2) [2012] NSWCA 177; and Wilson Parking 1992 Pty Ltd v Council of the City of Sydney (2014) 201 LGERA232.

Case study: Development standard or prohibition? [3.190] In Agostino v Penrith City Council (2010) 172 LGERA 380 the council refused a development application for alterations to an existing fruit and vegetable store to increase its gross floor area from 150 to 765 square metres. The site was in a rural zone where fruit and vegetable stores were prohibited, but a clause in the LEP permitted such a store with a maximum area of 150 sqm. The issue was whether the size restriction was a development standard that could be varied under SEPP 1, or a prohibition that could not.

The Court of Appeal made it clear that an LEP provision could be a prohibition even when it does not appear in the zoning table. The key question was whether the restriction is an essential condition in determining whether the particular development proposed is permissible. This needs to be answered by considering the LEP as a whole, including the underlying principle as well as the structure and provisions of the plan. The Court concluded that the 150 sqm limit was an essential condition for permissibility and was therefore not a development standard capable of variation under SEPP l. It was significant that the limit defined the land use in question, and that development of that nature was permissible only because of the clause employing that definition.

Planning and property law [3.200] Planning can be understood as a restriction on property rights, in that zoning restricts the ability of property owners to develop their land in certain ways. However, planning can also be understood as protecting and enhancing property rights, by providing property owners with a degree of certainty and an opportunity to express their views on proposed changes that might affect their land. In residential areas, for example, the protection offered by zoning from undesirable uses - such as factories, brothels or prisons - may be very important to the maintenance of house prices. In New York, where an early and very influential zoning plan was introduced at the start of the 20th century, it was property owners who pressed for the adoption of land use planning.

To some degree, planning and property will always exist in tension. Typically, property owners seek to maximise flexibility regarding potential development on their own land while also maximising certainty regarding potential development on their neighbour's land. That tension, coupled with the need to balance the public interest in a well-planned environment against the practicalities of implementing change, make property an important consideration for state and local planning authorities.

[3.240]

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Existing uses [3.210] Land use planning does not occur on a blank slate. Zoning and other decisions are typically made in the context of a range of existing uses. While there would be little value in preparing land use plans that simply reflect the status quo, planning authorities need to balance the achievement of planning objectives against the significant political (and financial) pressure that would arise if existing uses were forced to cease. The EPA Act provides a compromise, with provisions enabling the continuation of non-conforming uses following zoning changes in certain circumstances (ss 106, 109, discussed in Chapter 5).

Restrictive covenants [3.220] Another issue is the relationship between planning law and the regulation of development

through property law. An EPI may, for the purpose of enabling development in accordance with the EPI or a development consent to be carried out, provide that a restrictive covenant or other instrument shall not apply to any such development (s 28). This means that a restrictive covenant registered on the title to land restricting development on the land (for example, limiting development to a single storey dwelling even though two-storey development was permissible under the LEP), can be rendered ineffective by a section 28 clause in an EPI. There have been a number of cases in which these provisions under s 28 have been upheld, forestalling the operation of a restrictive covenant (see Ludwig v Cashatt (1994) 83 LGERA 22 (aff'd Cashatt v Ludwig (1997) 8 BPR 15,519; [1997] NSW ConvR 55-810); Doe v Cogente Pty Ltd (1997) 94 LGERA 305; Owens v Longhurst (1998) NSW SC 387 applied in Jessica Estates v Lennard (2007) 156 LGERA 266; [2007] NSWSC 1175 (but where the particulars 28 clause was held not to apply because of its unusual wording); Natva Developments Pty Ltd v McDonald Bros Pty Ltd [2004] NSWSC 777; Cracknell and Lonergan Pty Ltd v Council of the City of Sydney (2007) 155 LGERA 291; [2007] NSWLEC 392). The Department has prepared a model local clause for the suspension of covenants, agreements and instruments in LEPs made using the Standard LEP (cl 1.9A).

Acquisition of land reserved for public purposes [3,230] A further issue is the use of land for public purposes. An EPI may reserve land exclusively

for purposes of open space, a public place, a public reserve or other public purposes such as a national park or public railway (s 26(1)(c)). If land was reserved then, previously, under section 27 of the EPA Act and the provisions of the LEP, the public authority (for example a local council) was required to acquire the land if the owner gave notice. However, since 2008 the obligation to acquire reserved land is found in the Land Acquisition (Just Terms Compensation) Act 1991 (s 21(1)(6)) but the owner must be suffering hardship before the requirement to acquire is triggered (s 23, see [1.410]). This is the situation even if an existing LEP applies and provides for immediate acquisition upon notice (EPA Act, ss 27(3), (4)) .

Other matters covered by LEPs [3.240] LEPs may also cover other matters, including:

• conservation of items of environmental heritage, such as historic buildings

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(3.250]

• protection of trees or other vegetation • matters that councils must take into account before granting consent to particular kinds of development (see (5.1240]) • whether a council must consult with public authorities in particular cases, and whether the authority has the power to veto certain approvals (see [5.830]) • public authority development • temporary use of land • classification and reclassification of council land (see [8.330]).

[3.280]

may be necessary in any particular case to review at least both the relevant LEP and SEPP (Infrastructure) 2007 (discussed below, [3.470]).

How LEPs are made [3.280] The process for making land use plans has changed since the introduction of the EPA Act. Previously, the process of making LEPs followed a series of steps set out in the Act. These steps have been replaced by a "gateway" process in which the process is determined by the Minister on a case-by-case basis. The Department has provided more detailed advice about the process m

Heritage conservation

•

[3.250] In recent years, LEPs have played an increasingly important role in heritage conservation. The number of items listed on the State Heritage Register maintained under the Heritage Act 1977 has decreased, in line with government policy that local councils take more responsibility for protecting local heritage.

•

The Standard LEP includes a compulsory clause for heritage conservation (cl 5.10). Heritage items and conservation areas (if any) are shown in a heritage map and described in a schedule to the LEP.

1.

Protection of trees or other vegetation [3.260] The Standard LEP includes two compulsory clauses relating to the protection of trees and vegetation. Where trees or other vegetation are prescribed for the purpose in a DCP, the ring barking, cutting down, topping, lopping, removal, injuring or destruction of such trees and vegetation must not be undertaken without consent (with some exceptions) (cl 5.9). For trees or vegetation not so prescribed, such activities are permitted without consent (cl 5.9AA).

[3.270] Prior to the introduction of the Standard LEP, LEPs usually included a schedule listing developments to which the controls under the LEP do not apply. These were primarily developments related to the activities of public utilities and public authorities. Development consent is not required for listed development when carried out by these bodies, even if the zoning tables otherwise appear to require it (or to prohibit the development altogether). This becomes important when considering the operation of Part 5 of the EPA Act (see Chapter 6). There is no schedule for the development of this type in the Standard LEP because the SEPP (Infrastructure) 2007 now deals with this type of development. Instead, the Standard LEP includes a compulsory clause referring to this SEPP (cl 5.12). That clause also provides that controls under the LEP do not apply to the use of existing Crown buildings by the Crown. For older LEPs remaining in force, SEPP (Infrastructure) 2007 does not repeal the Schedules but the SEPP prevails to the extent of any inconsistency with other EPls made before or after it. It

A guide to preparing planning proposals (NSW Planning & Infrastructure, October 2012) available at: http://www.planning.nsw.gov.au/-/media/Files/DPE/Manuals-and-guides/ a-guide-to-preparing-planning-proposals-2012-10 .ashx A guide to preparing local environmental plans (NSW Planning & Infrastructure, April 2013) available at: http://www.planning.nsw.gov.au/-/media/Files/DPE/Manuals-and-guides/ a-guide-to-preparing-local-environmental-plans-2013-04.ashx. The LEP-making process now includes the following stages:

Heritage conservation is discussed further in Chapter 17.

Infrastructure development and use of existing buildings of the Crown

chapter 3 Land use planning

The relevant planning authority (RPA) prepares a planning proposal (s 55(1)). This is usually the local council, but the Minister may direct that the Department or another body is the relevant planning authority for a particular area in certain circumstances (s 54). The planning proposal explains the effect of and sets out the justification for the proposed plan. It has five parts (s 55(2)): 1.

statement of objectives or intended outcomes

2.

explanation of the proposed provisions

3.

justification for the objectives, intended outcomes and provisions and the process for their implementation

4.

maps, with sufficient detail to indicate the substantive effect of the plan

5.

details of the intended community consultation.

2.

The planning proposal is sent to the Minister. The Department's A guide to preparing local environmental plans states that the planning proposal is assessed by the Department and then both the proposal and the Department's recommendations are forwarded to a Review Panel which provides a recommendation to the Minister.

3.

The Minister makes a gateway determination (s 56), covering:

• whether the plan should proceed (with or without variation) • whether the plan should be resubmitted, including for further studies • community and other consultation requirements, if any • times within which the various stages are to be completed.

4.

Consultation is undertaken, as required (s 57). If the RPA is of the opinion that critical habitat or threatened species, populations or ecological communities or their habitats will or may be adversely affected by the proposed LEP, it must consult with the Environment Department (s 34A).

5.

The RPA resolves to adopt and make the draft LEP.

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7.

(3.290]

The Secretary arranges drafting of the LEP and the Minister (or delegate) makes the local environmental plan (s 59). The Minister may vary the proposals submitted by the RPA, and may decide not to make the proposed LEP or to defer inclusion of matters proposed in the LEP (s 59). The LEP is published on the NSW legislation website and commences on the date of publication or a later date stated in the LEP (s 34 ).

The RPA may forward a revised proposal to the Minister at any time (s 58).

• •

These steps, including the Gateway determination, will not be required if: the LEP being made is an amending LEP to correct an obvious error or to address matters of a minor nature in the principal instrument, or the Minister considers that the matters dealt with in the LEP do not warrant compliance with the conditions precedent for the making of the LEP because they will not have any significant adverse impact on "the environment or adjoining land" (s 73A).

The Planning Department website contains a database of planning proposals, enabling the tracking of progress of particular LEPs.

Environmental studies (3.290] There is no express requirement for environmental studies in the making of an LEP.

Prior to the 2009 amendments, environmental studies were required when the plan was first made for the area. In most cases there was at least a deemed EPI in existence, so the decision whether or not to order a study was made by the Minister or the Secretary. There is provision in the context of the Gateway determination for resubmission of a proposal for any reason including for "further studies or other information" (s 56). The reference to "further studies or other information" suggests that there perhaps should be an initial study or studies for the planning proposal. Section 55(3) provides that the Secretary may issue requirements in relation to the preparation of a planning proposal. The Department's Planning Circular PS 09-015 states that the Secretary's requirements under section 55(3) are in the Department' s publication A guide to preparing local environmental plans and that the requirements are found in figures 3 and 4 of the Guide. Figure 3 includes the requirements for justification of the planning proposal including the need for the planning proposal and the question whether the planning proposal is a result of any strategic study or report. Figure 4 simply repeats this question. The Planning Department publication A guide to preparing planning proposals states that proposals should, at a minimum, "identify any environmental, social and economic impacts associated with the proposal", but that comprehensive information is not required at this stage. Rather, planning proposals should identify the relevant issues. The Gateway determination would then confirm the studies and investigations required and the process for continuing assessment of the proposal, including whether it would need to be resubmitted following completion of the studies or investigations. An owner of land may request a plan making process. In that case the RPA may, as a condition of doing so, require the owner to carry out any studies or other information or to pay the costs of the authority. (s 54(3)).

[3.310]

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Public participation (3.300] Consultation requirements are set as part of the Gateway determination. This may include a determination that no community consultation is required (s 57(3)). Where consultation is required, the RPA must undertake such consultation in accordance with the requirements.

The planning proposal (as revised to comply with the Gateway determination and in approved form) is to be made publicly available during the period of community consultation. Detailed provisions may be summarised instead of being set out in full if the Secretary is satisfied the summary provides sufficient details for community consultation. The Department's Guide indicates that the complete planning proposal and supporting studies should also be available for inspection. During the consultation period, any person may make a written submission to the RPA. Submissions may (but need not) be made publicly available. A person making a submission may request that the RPA conduct a public hearing. The RPA must arrange a hearing if it considers the issues raised are of sufficient significance (s 57(3), (5)). Even without a request, the RPA may arrange a public hearing. Community consultation is complete only when the RPA has considered any submissions and the report of any public hearing into the proposed LEP (s 57(8)). The Act provides that regulations may prescribe standard consultation requirements, but no such regulations have been made. The Department' s Guide states that consultation will be tailored to specific proposals, and indicates that the exhibition period will generally be 28 days, or 14 days for low impact proposals. The Guide sets out the manner of public exhibition, what the written notice must contain and the material that must be made available for inspection. There are special provisions for a public hearing reclassifying public land from "community" to "operational" under the Local Government Act 1993 (see [5.920]).

If the RPA varies the proposals, further community consultation is not required unless the Minister so directs in a revised Gateway determination (s 58(3)). In contrast to the steps for making LEPs under the repealed provisions of the Act, the legal drafting of the LEP takes place after these steps to give effect to the final proposals (s 59(1)) and there is no public exhibition of the draft LEP.

Guidance on the content of an LEP [3.310] The making of an LEP, including the content, is mainly a cooperative process between a council and the Minister/Department, with the Minister having the ultimate authority. Under sections 55 and 56 of the EPA Act a council can decide to prepare a planning proposal and forward it to the Minister. While the planning proposal must include the information required by section 55, the substantive content is determined by the council. This is subject to a number of limitations:

• the template set out in the Standard LEP (see [3.100]) • directions made by the Minister under section 117 • requirements for LEPs set out in some SEPPs.

While the EPA Act stipulates that it is the Minister who makes the LEP (s 59), in practice many local plan making functions have been delegated to local councils following administrative

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[3.320]

changes that came into effect on 2 November 2012. Departmental Circular PS 12-006 Delegations and independent reviews of plan-making decisions indicates the plan making powers that may be delegated to local councils, and lists the types of proposed LEPs for which these functions are routinely delegated. See also the Department's publication A guide to preparing local environmental plans for a list of LEP-making delegations.

Directions under s 11 7(2) (3.320] Directions under section 117(2) of the EPA Act place restrictions on councils that are intending to develop a LEP. Before amendments to the Act in 1985, directions could only be made if they dealt with matters of significance for State or regional environmental planning. This restriction has been removed.

[3.350]

chapter 3 Land use planning

These directions contain provisions allowing inconsistency of a planning proposal with a direction to be justified.

Case study: Consistency with s 11 7 directions (3.330] In Smith v Wyong Shire Council (2003) 132 LGERA 148, an LEP was made that was inconsistent with a section 117 direction not to reduce residential density and not to increase residential flat development standards. The NSW Court of Appeal by majority held that the non-compliance did not invalidate the LEP, but the failure of the council to publicly exhibit the applicable section 117 direction did mean that the LEP was invalid. Section 117(5) now specifically provides that a LEP or planning proposal cannot in any court proceedings be challenged, reviewed, called into question, or be prevented from being made on the basis of anything in a section 117 direction.

Previously, if a council did not comply with relevant directions, the Secretary could refuse to issue the certificate required to place a draft LEP on public exhibition. These provisions have been repealed, with an exception for pending draft LEPs as at July 2009.

Departmental circulars

New directions, mostly commencing on 1 July 2009, were issued in relation to planning proposals. The following discussion gives an indication of some of the issues on which councils are directed in formulating planning proposals.

(3.340] The Department issues Practice Notes and Planning Circulars to provide guidance to councils in relation to planning issues. They are published on the Department's website and cover matters such as:

Some directions under section 117(2) apply to all local government areas; others have more specific application. Most of the first group are designed to preserve the status quo unless change can be fully justified. These include directions that planning proposals must:

• retain the areas and locations of existing business and industrial zones (direction 1.1) • include provisions that facilitate the protection and conservation of environmentally

sensitive areas (direction 2.1) and the conservation of heritage items, areas, objects and places (direction 2.3)

• not reduce the permissible residential density of land, and not permit residential development until land is adequately serviced (direction 3 .1) • include provisions that give effect to and are consistent with policies and strategies such as

Improving Transport Choice - Guidelines for planning and development, the Acid Sulfate Soils Planning Guidelines, NSW Flood Prone Land Policy, and Planning for Bushfire Protection 2006 (directions 3.4, 4.1, 4.3, 4.4, 5.1, 7.1)

• minimise the inclusion of provisions requiring concurrence, consultation or referral of development applications to a Minister or public authority (direction 6.1) • not identify development as designated development except in particular circumstances (direction 6.1) • not create, alter or reduce existing zonings or reservations of land for public purposes without approval from the relevant authority and the Department (direction 6.2) • reserve land for public purposes where requested by the Minister or public authority, and include and/or remove provisions relating to such land as requested (direction 6.2) • avoid site specific planning controls when undertaking spot rezoning (direction 6.3)

• the standard instrument • the LEP-making process • following section 117 Directions • the implementation of particular SEPPs, REPs, regional, metropolitan and draft subregional strategies

Practice Notes and Planning Circulars do not have legal status. In one instance the Court found that a Departmental circular did not correctly interpret the law (Burns Philp Trustee Co Ltd v Wollongong City Council (1983) 49 LGRA 420). Practice Notes and Planning Circulars generally offer guidance and may assist in understanding the processes and law being discussed and, particularly, the way in which the Department and councils will interpret the relevant prov1s1ons.

Strategic plans (3.350] The Department regularly produces strategic plans to guide planning across the State. These strategies are not legal instruments but are important guiding documents in relation to local planning and the making of LEPs. Directions issued under section 117 provide that planning proposals must be consistent with regional strategies (direction 5.1) and with the metropolitan strategy (direction 7.1). The Planning Bill 2013 contained a number of proposals to provide clearer "lines of sight" between plans at various levels, with local plans subject to a much stronger hierarchy of regional and state level plans. In line with this, the Department released a new Metropolitan Strategy in 2014 to guide planning over the next 20 years, A Plan for Growing Sydney. This will be followed by a number of Subregional Delivery Plans.

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[3.360)

chapter 3 Land use planning

[3.380)

Amendment of LEPs

State environmental planning policies

[3.360] LEPs, like all EPis, are not intended to last indefinitely. While some degree of stability is necessary, plans need to be updated in light of changing demographic, economic, environmental and other circumstances. The EPA Act thus provides that councils shall keep their LEPs under regular and periodic review "for the purpose of ensuring that the objects of this Act are, having regard to such changing circumstances as may be relevant, achieved to the maximum extent possible" (s 73 ).

[3.380] In practice, SEPPs are not policies in the strict sense of the word. SEPPs have, for example, amended the details of LEPs, usually by permitting development that would otherwise be prohibited or by imposing consent requirements that do not exist under LEPs. Most SEPPs expand the range of permissible activities, though some may have the opposite effect (SEPP 50, for example, prohibits the development of new canal estates).

Amendments to all LEPs, including deemed LEPs, are made by new LEPs (s 74). Section 74 of the Act simply provides that an EPI may be amended in whole or in part by a subsequent environmental planning instrument whether of the same or of a different type. Amended includes altered, varied or repealed. There are no further prescriptions or rules in relation to amendment of EPis except in relation to: (a)

minor amendments to correct pbvious errors or to address matters of a consequential or minor nature. In these cases any conditions for the making of an EPI need not be complied with (s 73A(l)(a), (b)); and

(b)

EPis dealing with matters that the Minister considers do not warrant compliance with the conditions precedent because those matters will not have any significant adverse impact on the environment or adjoining land. Therefore on an amendment the Minister can decide that there will be no public exhibition, no community consultation, no studies, no justification and no planning proposal (s 73A(l)(c)).

Combining planning with project control [3.370] The EPA Act provides that an application for development consent may be made, and considered by the consent authority, even if its approval would require amendment of the relevant EPI (s 72J). Amendments to EPis in such cases are known as "spot rezoning", and are frequently concerned with rezoning quite small blocks of land. Spot-rezoning is really quite different to strategic or forward planning. It is a way of making adjustments to a plan to take account of circumstances not envisaged when it was first made, and may be understood as part of the process of project control. Division 4B of Part 3 of the Act applies if an EPI must be amended so that a proposed development can be carried out. It is intended as a procedural simplification, speeding up the process by enabling the processing of an amending EPI at the same time as a development application. The amending EPI and the development application can be jointly exhibited (s 72K). An appeal against a refusal of development consent does not affect the power of the council to decide not to proceed with an LEP.

If an amending LEP is principally concerned with permitting State significant development that is wholly or partly prohibited, the decision on the LEP and the development application is made by the Planning Assessment Commission under Ministerial delegation (s 89E(6)). In such cases, the Secretary may undertake the planning authority functions in the plan making process (s 89E(5)).

Most of the provisions in the EPA Act dealing with the content of EPis apply to SEPPs as well as LEPs. However, SEPPs are made with respect to matters "of State or regional environmental planning significance" (s 37). While certain features are more likely to be found in LEPs (such as zoning and development standards), most can be found in both (eg the Major Development SEPP sets out zoning and development standards for a range of areas). The Court of Appeal has confirmed that SEPPs may deal with detailed planning matters, not just broader policy issues (see Leichhardt Municipal Council v Minister for Planning (1992) 78 LGERA 306; Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31). There are also some exceptions. For example, there are some categories of development that can be declared by a SEPP, but not by an LEP. SEPPs can declare development to fall within all of the categories for which this may be done by an LEP (exempt, complying, advertised and designated development). There are also two other categories of development that may be declared in a SEPP: 1.

State significant development (ss 89C - 89L)

2.

State significant infrastructure (ss 115T - 115ZM).

As their names suggest, these are major developments for which particular procedures apply. SSD and SSI are discussed further below ([3.460]) and in Chapter 5. At the time of writing, there were over 60 SEPPs in force. A full list and general description of SEPPs is available on the Department's planning "hub" at http://www.hub.planning.nsw.gov.au/ PlanningControls/StateEnvironmentalPlanningPolicies/ ListofStateEnvironmentalPlanningPolicies % 2 8SEPPs % 29. as px. Examples of different types of SEPPs and those of general application are discussed below. SEPPs with specific relevance to particular aspects of NSW environmental law are discussed in relevant chapters:

• SEPP 30- Intensive Agriculture, SEPP 15- Rural Land Sharing Communities and SEPP (Rural Lands) 2008 are dealt with in Chapter 11, Agriculture. • SEPP 33- Hazardous and Offensive Development and SEPP 55- Remediation of Land are discussed in Chapter 9, Pollution control and waste disposal. • SEPPs 14- Coastal Wetlands, 19- Littoral Rainforests and 26-Bushland in Urban Areas

impose development consent requirements on certain activities impacting upon native flora. SEPP 44 applies more generally to protect koala habitat. They are dealt with in Chapter 12, Biodiversity and Chapter 14, Coastal and riverside land. SEPP 39 applies to development for the creation and protection of a bird habitat at Spit Island at Towra Point, Kurnell.

• SEPP (Mining, Petroleum Production and Extractive Industries) 2007 is dealt with m Chapter 18, Mining. • SEPP 62-Sustainable Aquaculture is dealt with m Chapter 19, Fisheries and aquatic ecosystems.

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• SEPP 71-Coastal Protection and SEPP SO-Canal Estate Development are dealt with in Chapter 14, Coastal and riverside land.

SEPPs increasing flexibility in the development assessment process [3.390] Several SEPPs have been used to vary the procedures for granting development consent as set out in LEPs. SEPP 1 and the SEPPs relating to exempt and complying development were introduced to provide flexibility in the application of planning controls in particular circumstances, and to promote consistency in the approaches taken by different councils. The Standard LEP contains compulsory provisions covering much of the content of those SEPPs, with the result that their significance for planning in NSW has been reduced.

SEPP 1 [3.400] SEPP 1 provides for the granting of consent to development applications that did not comply with relevant development standards, in circumstances where such compliance would be unreasonable or unnecessary or tend to hinder the attainment of the objects of the Act. The intention was to avoid the rigidity associated with development standards setting requirements such as floor space, site area, height, density and intensity of development (see above, [3.170]). The applicability of SEPP 1 has been greatly reduced by the adoption of the Standard LEP, which sets out a similar procedure for objections to development standards (cl 4.6). SEPP 1 does not apply where the applicable LEP was made in accordance with the Standard LEP (cl 1.9). A person wishing to apply for development under SEPP 1 should submit a written objection (a "SEPP 1 objection") demonstrating how compliance is unreasonable or unnecessary. The consent authority, with the (generally assumed) concurrence of the Department, may then grant consent if satisfied that the objection is well grounded and the granting of consent is consistent with the aims of SEPP 1. SEPP 1 has been considered by the Land and Environment Court on a number of occasions. The court has held that compliance is "unnecessary" or "unreasonable" within the terms of the SEPP in a number of ways, including:

• the objectives of the standard are met despite the non-compliance • the underlying purpose of the standard is not relevant to the proposed development • the zoning of the land is unreasonable or unnecessary • where the council has virtually abandoned or destroyed the standard by its own action.

See Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at [26] and in Wehbe v Pittwater Council (2007) 156 LGERA 446. Compliance cannot be established through the variation of the standard in other instances. If a development standard is varied under SEPP 1, this means only that compliance is not appropriate in the particular circumstances. SEPP 1 cannot be used as a substitute for the plan making process (Hooker Corp Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438; Circular Bl). In Legal and General Life of Australia Ltd v North Sydney Municipal Council (1990) 69 LGRA 201, the

[3.420]

chapter 3 Land use planning

Court of Appeal warned of the dangers of misusing SEPP 1 to bypass planning decisions that had been made through the planning process in consultation with the community, without being obliged to obtain further community input. SEPP 1 makes no reference to the extent of the variation permissible, with the result that substantial variations may be allowed in appropriate cases. In Legal and General Life of Australia Ltd v North Sydney Municipal Council (1990) 69 LGRA 201, the Court of Appeal upheld a decision to allow a floor space ratio more than four times that permitted by the development standards, and a height ratio more than three times greater. One important question constraining the applicability of SEPP 1 is whether the relevant provision is indeed a development standard. If it is found to be a prohibition, SEPP 1 will not apply (see above, [3.180]). SEPP 1 does not apply to complying development (see [5.320]). A SEPP 1 objection is only required in instances of non-compliance with a development standard, being a provision found in an EPI or the regulations (see EPA Act, s 4 Definitions). Without the objection there is no discretion to vary such standards as they are "nondiscretionary", and so need the provision of another EPI (such as SEPP 1 or cl 46) to allow flexibility in their application (EPA Act, s 79C(3)(b)). For standards in which a discretion to vary is available - for example those found in development control plans - a SEPP 1 objection is not required.

SEPP 4 and SEPP 60 [3.41 0] SEPP 4 - Development Without Consent and Miscellaneous Exempt and Complying Development and SEPP 60 - Exempt and Complying Development set out a range of exempt developments, for which consent is not required, and complying developments, for which, if prescribed development standards and controls are met, consent must be granted by the issue of a complying development certificate. The relevance of both of these SEPPs has been reduced with the inclusion of similar provisions in LEPs by local councils (in which case SEPP 4 and SEPP 60 do not apply), the adoption of the Standard LEP (which includes compulsory clauses for exempt and complying development, and excludes the operation of SEPP 4 and SEPP 60, cl 1.9), and the SEPP (Exempt and Complying Development Codes) 2008 (which amends and limits the application of both SEPP 4 and SEPP 60).

SEPP {Exempt and Complying Development Codes) 2008 [3.420] This SEPP aims to provide streamlined assessment processes for development that complies with specified development standards that apply across the state, instead of local controls. It includes a range of codes covering particular types of development. The General Exempt Development Codes identify types of development of minimal environmental impact that may be carried out without the need for development consent. The Complying Development Codes identify types of development that may be carried out in accordance with a complying development certificate. There are exceptions, such as land in environmentally sensitive, heritage or wilderness areas (cl 1.19). A number of codes have been added to this SEPP since its introduction. At the time of writing, the SEPP includes the following codes:

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• General Exempt Development Code (Part 2, Division 1) • Advertising and Signage Exempt Development Code (Part 2, Division 2) • Temporary Uses and Structures Exempt Development Code (Part 2, Division 3) • General Housing Code (Part 3) • Rural Housing Code (Part 3A) • Housing Alterations Code (Part 4) • General Development Code (Part 4A) • Commercial and Industrial Alterations Code (Part 5) • Commercial and Industrial (New Buildings and Additions) Code (Part 5A) • Subdivisions Code (Part 6) • Demolition Code (Part 7) • Fire Safety Code (Part 8) These codes are given force in LEPs through the compulsory provisions in the Standard LEP for exempt and complying development, which enable councils to add, but not remove, types of exempt and complying development (discussed above, [5 .320]).

SEPPs introducing mechanisms to improve the quality of development

[3.450]

chapter 3 Land use planning

consent authority must refer the application to the relevant design review panel (if any). The advice of the relevant design review panel for the area must be taken into account when determining a development application to carry out residential flat development. Failure to have regard to the SEPP 65 mandatory considerations was found to be an error of law in Barton Securities Ltd v Warringah Council (2009) 170 LGERA 223; [2009] NSWLEC 179.

SEPP {Building Sustainability Index: BASIX] 2004 (3.440] SEPP (Building Sustainability Index: BASIX) 2004 aims to encourage sustainable residential development. BASIX is a certification process applied to development applications for residential housing (see [10.420]). The aims of BASIX are essentially achieved through the Environmental Planning and Assessment Amendment (Building Sustainability Index (BASIX)) Regulation 2004. The purpose of this SEPP is to ensure that EPis and development control plans do not detract from the BASIX requirements. BASIX came into effect on 1 July 2004, with its application expanded in stages until 2007. It applies to residential projects (single and multiple) with a total estimated cost of works over $50,000. BASIX requires assessment of how proposed development performs by reference to several sustainability indices. These include savings in mains-supplied potable water consumption, greenhouse gas emissions and thermal performance. The assessment is undertaken using an online program, which assesses the design using information such as site location, house size, building materials and fittings for hot water, cooling and heating.

SEPP 65 - Design Quality of Residential Apartment Development [3.430] SEPP 65 aims to improve the design quality of residential flat development. It sets out ten design quality principles, including:

SEPPs regulating specific sites or projects

1.

context

2.

scale

(3.450] There are a number of SEPPs that manage specific sites or facilitate particular developments. These include:

3.

built form

4.

density

5.

resource, energy and water efficiency

6.

landscape

7.

amenity

8.

safety and security

9.

social dimensions and housing affordability

10.

aesthetics.

SEPP 65 requires that an EPI or other plan in relation to residential flat development should include provisions ensuring the achievement of the design quality principles. The principles must also be considered in determining a development application. SEPP 65 provides for the establishment of design review panels for residential flat buildings, comprising experts such as architects, urban designers, environmental planners and landscape architects. Before determining a development application for residential flat development, the

• SEPP (Western Sydney Park/ands) 2009 • SEPP (Western Sydney Employment Area) 2009 • SEPP (Kosciuszko National Park -Alpine Resorts) 2007 • SEPP (Sydney Region Growth Centres) 2006 • SEPP 59 - Central Western Sydney Regional Open Space and Residential • SEPP 47 - Moore Park Showground • SEPP 39 - Spit Island Bird Habitat • SEPP 29 - Western Sydney Recreation Area • SEPP (Kurnell Peninsula) 1989 • SEPP (Penrith Lakes Scheme) 1989

The use of SEPPs in this way may be controversial, in that they remove such areas from local control. The courts have approved this use of SEPPs to override LEPs and to transfer decision-making power to the State government. In Darling Casino Ltd v Minister for Planning (1995) 86 LGERA 186, the court upheld the use of a SEPP (SEPP 41) to override the relevant LEP to permit development for the purposes of a casino at Darling Harbour, and to make the

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Minister, rather than the local council, the consent authority. In Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33 the court upheld the similar use of a SEPP (SEPP 47), permitting the redevelopment of the Moore Park showground as a film and television studio. REPs were often used to manage particular areas, and a number of these continue in operation as deemed SEPPs. These include:

• Willandra Lakes REP No 1 - World Heritage Property • Sydney REP No 16 - Walsh Bay • Sydney REP No 18 - Public Transport Corridor • Sydney REP No 19- Rouse Hill Development Area • Sydney REP No 24 - Homebush Bay Area • Sydney REP No 26 - City West • Jervis Bay REP 1996 • Sydney REP (Sydney Harbour Catchment) 2005 • Sydney REP No 30- St Marys • Sydney REP No 33 - Cooks Cove

SEPP {Major Development] 2005 and SEPP {State and Regional Development] 2011 [3.460] In recent years SEPPs have been used to override local planning controls and enable large projects to proceed, sometimes in the face of local opposition. For example, SEPP (Major Development) 2005 identified development to which Part 3A of the Act applied. The Minister was the consent authority for these projects and other EPis had limited application. Legislation to repeal Part 3A was enacted in June 2011, but SEPP (Major Development) 2005 and Part 3A will continue to apply for some time to projects already in process at the time of the repeal (see EPA Act, Schedule 6A and SEPP (Major Development) 2005, cl 17). Part 3A has been replaced by two new streams for large projects: 1.

State significant development (SSD), which will be subject to Part 4 development consent determined by the Minister rather than a local council

2.

State significant infrastructure (SSI), which will be determined by the Minister and assessed under Part 5.1 of the EPA Act (see [5.2750]).

[3.480]

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Schedule 3 lists state significant infrastructure by general categories, including all general public authority activities which, in the opinion of the public authority, would require an environmental impact statement to be obtained under Part 5 of the Act (see Chapter 6). Other classes include port facilities, rail infrastructure and water supply systems where there is a minimum capital investment value of $30 million, and also pipelines and submarine telecommunication cables. Schedule 4 lists SSI by specified sites. Schedule 5 lists specific sites as part of particular projects as critical SSI, including Pacific Highway projects, certain rail infrastructure projects, the F3-M2 (NorthConnex) project, and WestConnex. Part 3A, SSD and SSI are discussed further in Chapter 5.

SEPP {Infrastructure] 2007 [3.470] SEPP (Infrastructure) 2007 consolidates a number of earlier SEPPs addressing specific projects, standardising provisions relating to infrastructure across the state. This SEPP:

• enables development on Crown Land if development is permissible on adjoining land, despite the provisions of any LEP (cl 18) • classifies certain development by or for a public authority as exempt development (cl 20) • specifies a range of infrastructure development which may be carried out without

development consent or with development consent in various specified zones within other EPls. This operates notwithstanding provisions in a relevant LEP that may otherwise prohibit or require consent for such development. For some of the development the provisions only apply if carried out by or for a public authority. For other infrastructure development this is not a requirement. The SEPP specifies 25 categories of infrastructure development, including: transport facilities, prisons, schools, TAFEs, universities, energy generating, transmission and distribution works, bushfire hazard reduction, health service facilities, port facilities, railways, roads and traffic, sewerage systems and telecommunications facilities. The SEPP includes some exceptions and requirements, including for consultation with local councils and other public authorities. In many of these cases, where the proposal is not a State significant infrastructure proposal requiring approval under Part 5.1 of the EPA Act when it comes into operation (see [5.2750]), environmental assessment of the work involved will be carried out under Part 5 of the EPA Act (see Chapter 6).

These two classes of development are set out in SEPP (State and Regional Development) 2011. SSD is identified in a number of ways. Schedule 1 lists SSD by the type of development (for example, agricultural and aquaculture development; certain manufacturing industries; water infrastructure and waste management; hospital, educational establishments and prisons). This is often combined with criteria relating to minimum capital investment value or minimum quantity of goods produced, or to the location of the development (for example, near environmentally sensitive areas). Schedule 2 lists SSD according to specific sites, including Sydney Opera House, Sydney Olympic Park, Luna Park, Barangaroo, Darling Harbour, Redfern-Waterloo Authority Sites, Western Sydney Parklands, Taronga Zoo and Fox Studios. Minimum investment values or other similar criteria are set for many sites.

Environmentally sensitive areas [3.480] Several SEPPs have been used to establish policy frameworks for environmentally sensitive areas. These include: SEPP 14 - Coastal Wetlands (restricts activities such as land clearing and drainage work on over 1300 identified wetlands, imposing an obligation to obtain development consent)

• • SEPP 19 - Bushland in Urban Areas (protects bushland in public open space zones and reservations, and aims to ensure that bushland is given high priority when LEPs are prepared) • SEPP 26 - Littoral Rainforests (applies to specified local government areas on the Pacific coast, imposing an obligation to obtain development consent for certain activities)

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•

[3.490]

SEPP 44 --~oala H_abitat Protection (restricts development in specified local government areas, requmng environmental studies before development can be approved)

• SEPP 71 -

Coastal Protection (introduced a development assessment framework for the coastal zone, ~nd aims to ensure development in the zone is appropriate, suitably located and managed consistently and strategically). See Chapter 14.

•

SE~~ (Sydney Drinking Water Catchment) 2011 (requiring consent authorities to be satisfied that a proposed development will have a neutral or beneficial effect on water quality before grantmg consent)

SEPPS regulating and restricting particular industries and activities [3.490) SEPPs have also bee~ used to regulate particular industries and types of development.

These SEPPs may make certa_m development permissible with consent, even when prohibited under ~n EPI; they may also Impose additional restrictions or prohibitions. Examples of these SEPPs mclude:

• SEP~ 1_5 - Rural Land~sharing communities (makes multiple occupancy development perm1ss1ble with consent m rural and non-urban zones, subject to specified criteria) • SEP~ 30- Intensive Agriculture (requires consent and specifies information and notification reqmrements for large cattle feedlots and piggeries) • SEPP 33 - Hazardous and Offensive Development (provides definitions for "hazardous industry", "hazardous storage establishment", "offensive industry" and "offensive sto t bl' h " d ·f· rage es a rs ment an speer res matters to be considered before the granting of consent for such uses)

• SEPP 36 - Manufactured Home Estates (seeks to promote affordability and security of tenure for ~es1dent_s by allo:"ing MHEs to be located on certain land where caravan parks are permitted m certam council areas, and by making the subdivision of estates by community title or leases permissible with consent)

• SEPP SO - Canal Estate Development (prohibits the development of new canal estates) • ofSEPP 55 - Remediation of Land (specifies state-wide planning controls for the remediation contaminated land) • ~EPP 62 ~ Sustainable Aquaculture (encourages the "sustainable expansion" of the mdustry,. w~th stan~ar_d app~oaches to the identification and categorisation of aquaculture and restnct10ns on its 1dent1f1cation as designated development)

• SEPP_64 - Advertising and Signage (regulates outdoor advertising, amendments in 2007 permit and regulate outdoor advertising in transport corridors) • SEPP (Temporary Structures) 2007 (provides for the erection of temporary structures and the use of places of public entertainment while protecting public safety and local amenity) • SEPP (Mining, Petroleum and Extractive Industries) 2007 (provides for the management and development of mmeral, petroleum and extractive material resources)

chapt er 3 Land use planning

[3.520)

Development assessment under the Mining SEPP [3.500] State Environmental Planning Policy (Mining, Petroleum and Extractive Industries)

2007 clarifies the categories of mining, petroleum production and extractive industries activities that are permissible with and without development consent. It also sets out development standards and the procedure for applications for development consent, including matters for consideration by consent authorities in determining whether to grant consent. In 2008, the Mining SEPP was amended, including a change to those considerations so that the SEPP prioritised the significance of the mineral resource over other environmental, social and economic considerations in the SEPP. The amendments were made following a decision in the NSW Court of Appeal confirming the rejection in the Land and Environment Court of planning approval for the expansion of the Warkworth mine in the NSW Hunter Valley. Considering a new application under the amended SEPP in 2015, the Planning Assessment Commission found that the application to expand the mine was capable of being approved. In August 2015 the Government amended the Mining SEPP to remove that provision, with the stated aim of providing "a more balanced framework for decision making."

Housing and urban consolidation [3.51 OJ Another controversial purpose for which SEPPs have been used is to pursue policies

related to urban consolidation and affordable housing. Planning policies and strategies consistently include provisions to increase urban consolidation, responding to increasing infrastructure and servicing costs, increasing environmental impacts and declining social equity caused by the continued growth of suburbs. Related to this, growing problems of housing supply and affordability have prompted a number of policies and initiatives intended to maintain and increase the supply of affordable housing across the state, and particularly in Sydney. However, while the social, economic and environmental benefits of such policies are widely agreed, councils are often reluctant to implement such policies at the local level. A number of SEPPs have been used to implement such policies.

SEPP {Affordable Rental Housing] 2009 [3.520] This SEPP aims to increase the supply and diversity of affordable rental and social housing across NSW. Affordable housing is defined as housing for very low to moderate-income households. The SEPP covers housing types including villas, townhouses and apartments that contain an affordable rental housing component, along with secondary dwellings (granny flats), boarding houses, group homes, social housing and supportive accommodation.

The SEPP permits group homes with consent and small group homes by a public authority, some without consent, in several residential and other zones. For affordable rental housing it provides incentives by way of floor space ratio bonuses and non-discretionary development standards (consent cannot be refused on these grounds when a proposal complies with the standards) and seeks to facilitate an expanded role for not-for-profit providers. It makes boarding houses permissible with consent and subject to minimum standards in a range of residential and non residential zones. Subject to a site compatibility certificate, the SEPP enables

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any land close to a railway station or in some rural centres near the CBD to be developed for affordable housing flats by a public authority or social housing provider or the Land and Housing Corporation (Part 2, Division 5). Affordable housing must be used as such for a minimum of 10 years, and must be managed by a registered community housing provider. Amendments in 2011 reduced the scope of the SEPP, for example by removing the provisions expanding the permissibility of dual occupancies, multi-dwelling housing and residential flat buildings to land where such dwellings are already permissible under another EPI. Requirements for parking were also tightened, and a new "character" test introduced for developments proposing to make use of the floor space bonus. The SEPP also includes provisions designed to retain existing affordable rental housing. These apply to a residential flat building that contained a low rental dwelling or was a boarding house as at 28 January 2000. For these, consent is required for demolition, altering or adding to the structure, changing use, or, if a residential flat building, strata subdivision. On an application for consent, the consent authority is to take into account Guidelines for the Retention of Existing Affordable Rental Housing and specified matters, such as the effect of the development on affordable housing in the area, including whether there is sufficient comparable accommodation.

SEPP 70 -Affordable Housing {Revised Schemes) [3.530] SEPP 70 enables specified councils to assign an affordable housing contribution to certain developments within their local government area. This scheme is currently operating in Ultimo, Pyrmont and Green Square only.

[3.570]

chapter 3 Land use planning

some forms of housing in adjoining urban areas, except for some environmentally sensitive areas. Consent must first be obtained, and the consent authority must be satisfied that residents of the proposed development have reasonable access to facilities and services. The SEPP sets out applicable development standards and matters for consideration, and requires the consent authority to take into account a site analysis and a range of design principles in determining whether or not to grant consent. In some circumstances a site compatibility certificate is required. The importance of this SEPP has been reduced with the adoption of the Standard LEP, which includes compulsory clauses making "seniors housing" and a range of other dwelling types permitted with consent in general, medium and high density residential zones.

SEPP 32 - Urban Consolidation {Redevelopment of Urban Land) [3.560] SEPP 32 aims to promote the use and development of land no longer required for the purpose for which it is currently zoned or used to be redeveloped for multi-unit housing and related development. This implements a policy of urban consolidation, which is intended to further social, economic and environmental goals by:

• establishing houses where there is existing public infrastructure, transport and community facilities • increasing opportunities to live close to employment, leisure and other opportunities • reducing the rate at which land is released for development on the fringe of existing areas • providing a greater diversity of housing types to provide for changing demographic and household needs.

Green Square Affordable Housing Program [3.540] The Green Square Affordable Housing Program aims to enable people on low to moderate incomes "to continue to live and work in Green Square". The program is delivered in partnership between the community, development industry and government, with City West Housing as the community housing provider. Monetary contributions for affordable housing form a condition of development consent for development in Green Square, and these are used to provide affordable housing. The aim is to provide about 330 rental units for very low to moderate-income households as development continues in the area over the next 15 to 20 years. More information regarding how contributions are calculated is available on the City of Sydney website: http://www.cityofsydney.nsw.gov.au/development/planning-controls/affordablehousing-and-development-contributions/green-square-affordable-housing.

Under SEPP 32, councils and the Minister must consider whether urban land is surplus to current needs and whether it should be redeveloped for multi-unit housing. When preparing EPis or considering development applications, councils and the Minister must implement the aims and objectives of the SEPP to the fullest extent practicable. In spite of the repeal of provisions in the legislation dealing with Regional Environmental Plans (see [3.40]), SEPP 32 continues to provide that the Minister must consider whether the redevelopment of urban land for multi-unit housing is a matter of regional planning significance, meriting the preparation of a REP to allow for larger housing developments or a particular type of housing for which there is a need. Where such a plan is prepared, the Minister becomes the consent authority and the proposal must be advertised (ell 10, 12). In deciding whether or not to give development consent, the Minister is specifically required to take into account issues of privacy, access to sunlight, noise and parking (cl 11).

SEPP {Housing for Seniors or People with a Disability) 2004

SEPP {Urban Renewal) 20 l 0

[3.550] This SEPP makes the development of housing for seniors and people with a disability, which were prohibited in residential zones by many councils, permissible with consent. This means that councils can still refuse to give consent in individual cases, but an appeal can be taken to the Land and Environment Court, which is not under the same pressures as local councils to reject this kind of development.

[3.570] The Urban Renewal SEPP aims to integrate land use planning with existing or planned infrastructure to create revitalised local communities, and to increase access to public transport, housing and employment options ("transit oriented development"). The SEPP was intended to contribute to the implementation of the now superceded Metropolitan Plan for Sydney 2036, which required 70% of population growth to be accommodated in existing areas.

The SEPP amends all other EPis to permit housing for seniors or people with a disability in zones where houses, flats, hospitals and special uses are permitted in urban areas. It also permits

The SEPP provides for the Minister to nominate potential precincts for renewal on a map within the SEPP. The precinct is then investigated, after which a new statutory framework (SEPP,

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LEP or DCP) can be introduced to facilitate this. Newcastle CBD, the Redfern-Waterloo area and the Granville Town Centre were the first three precincts identified for renewal under the SEPP.

Inconsistency between instruments [3.580] LEPs are generally subject to the provisions of relevant SEPPs. If there is an inconsistency between EPis there is a general presumption that a SEPP prevails over an LEP made before or after that SEPP (s 36(1)(a)). If the EPis are of the same kind, the general legal rules as to when one piece of legislation prevails over another will apply (s 36(1)(6)). It is not always easy to determine whether the EPis are inconsistent. See Hastings Point Progress Association v Tweed SC (2009) 168 LGERA 99.

In practice, SEPPs usually have specific clauses dealing with their relationship with other EPis (both LEPs and sometimes other SEPPs). Generally, SEPPs will provide that if there is an inconsistency the SEPP prevails over an LEP. A SEPP and an LEP may apply concurrently (see Mete v Warringah Council (2004) 133 LGERA420).

How SEPPs are made [3.590] SEPPs are made by the Governor on the recommendation of the Minister. Other than the provision in section 37(2) that an EPI may be made by the Governor "with respect to any matter that, in the opinion of the Minister, is of State or regional environmental planning significance", the EPA Act provides very few limits on the power to make SEPPs.

Section 38 provides that, before the making of any EPI by the Governor, the Minister is "to take such steps, if any, as the Minister considers appropriate or necessary" to publicise an explanation of the intended effect of the proposed SEPP, and to seek and consider submissions from the public on the matter. However, if the Secretary is of the opinion that critical habitat or threatened species populations or communities or their habitats may be adversely affected, the Department of Environment, Climate Change and Water must be consulted (s 34A). Prior to amendments made in 2008, the Act provided more guidance, including provisions for the Secretary to prepare draft SEPPs and submit these to the Minister, and discretionary provisions for consultation with other public authorities and Ministers. These were discretionary provisions and, even before the introduction of the 2008 amendments, the courts confirmed that the power to make a SEPP is extremely wide.

Case study: Consultation requirements in the making of a SEPP [3.600] Provisions relating to consultation in the making of SEPPs were considered by the Court of Appeal in Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31. Under (the now repealed) section 39(2), the EPA Act provided for the Minister to "take such steps, if any, as he considers

[3.620]

chapter 3 Land use planning

appropriate or necessary to publicise a draft SEPP and to seek and consider submissions from the public before he makes such a recommendation". Rosemount, the owner of vineyards in the Hunter Valley near the proposed Bengalla open cut coal mine, sought to challenge the making of SEPP 45 - Permissibility of Mining on the grounds that the Minister had consulted only with the Departments of Mineral Resources and State Development. The court found that the words "if any" made it clear that the discretion as to who to consult was unrestricted.

Challenging the validity of plans [3.610] Under section 123 of the EPAAct, anyone may bring proceedings to remedy or restrain a breach of the Act. The Land and Environment Court has jurisdiction to hear and determine challenges to the validity of an EPI in Class 4 of its jurisdiction. If any mandatory steps in the making of a LEP or SEPP have not been complied with, this would amount to a breach of the Act, and legal proceedings could be commenced to obtain a declaration that the relevant EPI is invalid.

There is a time limit privative clause (see [3.620]): the validity of an EPI may not be questioned in any legal proceedings unless they are commenced within three months of the date of publication of the EPI on the NSW legislation website (s 35). In some exceptional cases, proceedings can be brought after the three month period. In this regard there is a long line of cases. These are considered and referred to in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 136 LGERA 288. See also [13.450].

Case study: Privative clauses and the making of an LEP [3.620] In Bryan v Lane Cove Council (2007) 158 LGERA 390 the council had

exhibited a draft LEP which had the effect of suspending all private restrictive covenants (see [2.30]) throughout the local government area. The council then amended the draft to apply only to one property (adjacent to the applicant's in the proceedings) and the LEP in that amended form was made. The applicant challenged the validity of the LEP. The court application was one day outside the three month limit under section 35 of the EPA Act. Jagot J held that the differences in the amendments were of such significance that the plan as made was not within the power to alter or amend. It was a different plan and accordingly was never exhibited as required by the provisions of the Act as they then stood. This involved a breach of an essential, imperative or inviolable restraint and so section 35 did not operate to prevent the court action. The LEP was declared invalid.

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Challenges to LEPs [3.630] The grounds for challenging LEPs for procedural failures in their preparation have been reduced over time, as the EPA Act has been amended to reduce the number of steps required to make an LEP, putting requirements in guidelines rather than the Act and Regulation, and to make the steps discretionary rather than mandatory.

•

[3.670]

redevelopment of the Moore Park Showground for film and television studios and film-related entertainment facilities. Prior to the election, the previous Fahey Government had announced that the future use of the Showground site would be considered by a REP and established a REP Committee for consultative purposes. The Court rejected claims that the REP Committee had a legitimate expectation for consultation.

Case study: State or regional environmental planning significance

Other grounds for legal challenge are specifically excluded. For example: A failure to comply with a requirement of a Gateway determination does not prevent the instrument from being made or invalidate the instrument once it is made. However, if a discretionary decision is made to require community consultation, the LEP is not to be made unless the community has been given the opportunity to make submissions and the submissions have been considered under that section (s 56(8)).

[3.660] In IDA Safe Constructions Pty Ltd v Woollahra Municipal Council (1981) 48 LGRA 62, the Land and Environment Court rejected a challenge to the Minister's decision that SEPP 1 dealt with matters of State environmental planning significance. Even though its administration operated on a local level, the principles embodied in the SEPP were of State significance. According to the Court, the aim of the policy was "to temper uniformity with flexibility". Rigid application of development standards would not lead to "the promotion and co-ordination of the orderly and economic use and development of land", which is one of the objects of the Act (s 5(a)(ii)). See also Leichhardt Municipal Council v Minister for Planning (1992) 78 LGERA306.

• An LEP or planning proposal cannot in any court proceedings be challenged, reviewed,

called into question, or be prevented from being made on the basis of anything in a section 117 direction (s 117(5) ).

Case study: Misleading public notice [3.640] In Canterbury District v Canterbury Municipal Council (1991) 73 LGRA 317, Justice Stein held that the notice given by the council of the public exhibition of an LEP was misleading and the LEP was therefore invalid. The notice referred to a specific type of development to be carried out following the making of the LEP, whereas the LEP actually would have allowed a broader range of development. The courts have insisted on strict compliance with the procedural aspects of public exhibition, and where public notice has been given in a form that takes away the right of the public to participate, or makes participation incomplete, the courts have declared the resulting LEP invalid. See also Homeworld Ballina Pty Ltd v Ballina SC (2010) 172 LGERA 211.

Challenges to SEPPs [3.650] A number of challenges have been made to SEPPs and REPs on both procedural and substantive grounds. Several have argued, unsuccessfully, that SEPPs have been made on matters that are not properly of state or regional environmental planning significance. See IDA Safe Constructions Pty Ltd v Woollahra Municipal Council (1981) 48 LGRA 62; Leichhardt Municipal Council v Minister for Planning (1992) 78 LGERA 306. Other challenges have argued, also unsuccessfully, that the Minister is under an obligation to publicise a draft SEPP. See Leichhardt Municipal Council v Minister for Planning (1992) 78 LGERA 306; Darling Harbour Casino Ltd v Minister for Planning and Sydney Harbour Casino Pty Ltd (1995) 86 LGERA 186; Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31. In Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1996) 92 LGERA 275, the Court of Appeal rejected a challenge to SEPP 47 - Moore Park Showground based on procedural fairness. SEPP 47 was made by the new Carr Government to facilitate the

chapter 3 Land use planning

Development control plans and council policies Developm ent control plans [3.670] Development control plans (DCPs) are made primarily to provide guidance on giving effect to the aims of any relevant EPI, facilitating development that is permissible under any such instrument, and achieving the objectives of zones under any such instrument (s 74BA). A council or, if applicable, the Secretary, can also make a DCP for the purposes of (s 74C(l)):

•

identifying development as advertised development

• requiring additional notification or advertising for certain types of development • providing for •

or excluding advertising or notification of a request for review of a determination of a development application or an application for modification of a development consent

specifying criteria that the council is to consider in determining whether to make one of the orders provided for under Division 2A of Part 6.

In practice, DCPs generally cover matters such as foreshore development, car parking, landscaping, guideline development controls, heritage conservation areas, and advertising and notification policy. Generally, only one DCP made by the same planning authority may apply in respect of the same land (s 74C(2)) .

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[3.680]

Legal status of DCPs [3.680) Unlike EPis, provisions in DCPs are not legally binding on decision-makers who are

considering applications for development consent. They are simply factors to be taken into consideration before a decision is reached. Amendments in 2013 confirmed the non-binding status of DCPs. Previously, councils and the Land and Environment Court had often treated DCPs as a fundamental element in decisionmaking (see Zhang v Canterbury City Council (2001) 115 LGERA 373; Notaras v Waverley CC (2007)161 LGERA 230; Andrews v Botany Bay CC (2008) 158 LGERA 451; Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338). The EPA Act now provides that consent authorities determining applications for development consent are to be flexible in applying the provisions of the DCP, and to allow reasonable alternative solutions that achieve the objects of those standards for relevant aspects of the development (s 79C(3A)). A DCP has no effect to the extent that it is inconsistent with an EPI applying to the same land or prevents compliance with an EPI (s 74C(5)) .

If an EPI requires a DCP to be prepared before any particular development or kind of development may be carried out, the owners of the land (or a percentage of them) to which this applies may prepare and submit the DCP to the planning authority. If the planning authority refuses or fails to make the DCP within 60 days, the application for development consent can proceed without the DCP or the Minister may act in place of the planning authority to make a DCP if authorised by the relevant EPI (s 74D)).

Making DCPs [3.690) The making of DCPs is prescribed in the Regulation, under section 74E. Development control plans relating to LEPs are made by councils, without any involvement by the State government. However, the Minister can direct a council to make, amend or revoke a DCP and if the Council fails to act the Minister can carry out the direction and is not subject to the Regulation in so doing (s 74F). The Regulation sets out the following steps:

1

A draft plan is prepared by council (cl 18). The plan must be in the form of a written statement, and may include other materials such as maps, diagrams, illustrations. The plan must describe the land to which it applies and identify any applicable EPis.

2

Public notice is given, the draft plan exhibited for at least 28 days and submissions invited (cl 18). Anyone may make written submissions during the submission period (cl 20) .

3

If it relates to residential development, the draft is referred for comments to the design review panel (if any) under SEPP 65 (cl 21A).

4

The draft plan, with any amendments, is approved by council (cl 21) .

5

The plan comes into force after public notice of its approval (cl 21(4)).

Council codes and policies [3.700) Council codes and policies deal with similar matters as DCPs, but they are not made in accordance with the procedural requirements necessary for making a DCP. A code that has been

[3.710]

chapte r 3 Land use planning

made in accordance with these procedural requirements is in fact a DCP. Council codes and policies have no official status under the EPA Act, although they may be taken into account when a decision about development is being made.

Identifying the relevant planning controls Planning certificates [3.710) Under section 149 of the EPA Act, a person can apply for a certificate spelling out the planning controls applicable to development on any piece of land in the council area. Anybody not just those who are interested in purchasing the land - can make such an application. The basic fee is $53 (cl 259). Councils will usually answer oral enquiries, but written application for a certificate is necessary to obtain reliable information.

Schedule 4 of the Regulation specifies matters that must be included in the certificate. These matters change from time to time, at the time of writing they include:

• all EPis, DCPs and proposed EPis (where those proposed EPis are or have been the subject of community consultation or placed on exhibition) applying to the land • zones applying to the land, including applicable categories of development, any development

standards fixing minimum land dimensions for a dwelling, and whether the land includes critical habitat, a conservation area or heritage item

• zoning and land use under SEPP (Sydney Region Growth Centre) 2006, if applicable • whether and to what extent complying development may be carried out • whether the concurrence provisions of the Coastal Protection Act 1979 have been applied to the land (see [14.710]) (to the extent Council has been notified) • in relation to coastal councils, certain information in relation to emergency coastal

protection works and other information under the Coastal Protection Act 1979, and whether an owner has consented to annual charges for coastal protection services under the Local Government Act 1993.

• whether or not the land has been proclaimed to be a mine subsidence district (see [18.720]) • whether the land is affected by certain proposals for road widening or realignment • whether there is a policy adopted by council or other public authority (and notified to

council) restricting the development of the land because of the likelihood of land slip, bushfire, tidal inundation, subsidence, acid sulfate soils or any other risk (other than flooding)

• whether development on the land is subject to flood related development controls • whether any EPI (or proposed EPI) provides for the acquisition of the land by a public authority • the name of each contributions plan applying to the land (see [5.1990]) • if the land is biodiversity certified land (see [12.1240]) • if a biobanking agreement, of which Council has been notified, relates to the land (see [12.1200]) • a statement of whether or not the land is bushfire-prone land

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• whether a property vegetation plan under the Native Vegetation Act 2003 applies (if the council has been notified) • whether an order under the Trees (Disputes Between Neighbours) Act 2006 has been made regarding the land (if the Council has been notified) • whether a Part 3A direction applies to the land (see [5.2680]) • if SEPP (Housing for Seniors and People with a Disability) 2004 applies and if so whether a current site compatibility certificate (Seniors Housing) applies, with conditions (see above, [3.550])

• whether a site compatibility certificate (infrastructure) under SEPP (Infrastructure) 2007 applies • whether a valid site compatibility certificate under SEPP (Affordable Rental Housing 2009) applies (if Council is aware), and conditions • the name of any development plan adopted that applies to the land or that is proposed to be subject to a consent ballot • a statement of whether there is a current site verification certificate, of which council is

aware, including matters as required under the SEPP (Mining, Petroleum Production and Extractive Industries) 2007 and the Contaminated Land Management Act 1997 (see Chapter 9).

What the certificate will not show [3.720] The certificate will not set out all the terms of the EPis that apply. For example, it does not show development standards. If there is a development proposed for a parcel of land, it is usually necessary to research thoroughly all of the terms of the LEPs and other planning instruments that apply to the land. The LEP may not be in a consolidated form, and care must be taken to ensure that all amendments have been taken into account.

Obtaining further information [3. 730] It is also possible to apply for a certificate that contains information additional to that in a basic section 149 certificate. An application may be made under section 149(5), which might reveal information about matters affecting the land in addition to those specified in Schedule 4. A further fee (currently $80) is payable.

Liability of councils [3.740] Councils must include the information referred to above in Schedule 4 of the Regulation in a planning certificate, and are liable to pay damages if they negligently provide inaccurate information. This includes being liable to those who rely on a planning certificate attached to a contract of sale when purchasing property, as well as those who lend money in reliance on a certificate. A council cannot exclude liability by a unilateral disclaimer (see Burke v Forbes Shire Council (1987) 63 LGRA 1).

Any advice on other matters affecting the land in response to an application under section 14 9 (5) should be carefully cross-checked because a council has protection against legal

[3.750]

chapter 3 Land use planning

liability for negligence in respect of this additional information, provided that it has acted in good faith (s 149(6)). "Good faith" in this context means that the council has made a real attempt to answer the request for information at least by referring to the materials available to the council (see Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 116 ALR 460).

Finding copies of EPis [3.750] An EPI must be published on the NSW legislation website (http:// www.legislation.nsw.gov.au/maintop/scanact/inforce/NONE/O) (s 34(5)). However, the maps that accompany the text will often be excluded.

The Act also provides that copies of all EPis must be available for public inspection without charge at the Department (s 34(6)), and that copies of all applicable EPis must be available for public inspection without charge at the office of the council (s 34(8)). Copies of relevant EPis will often also be available for inspection at the council library. Most councils will also make relevant LEPs, planning proposal draft LEPs and DCPs available for download on their website. The Department's planning "hub" contains a number of online tools to assist in understanding the various planning controls. This includes:

• The Planning Viewer, a Google-map style interface through which the planning controls

applicable to individual land parcels can be identified. This includes matters such as: acid sulfate soils, airport noise, environmental conservation area, dwelling density, floor space ratio, foreshore building line, gross floor area, groundwater, building height, heritage, industrial release area, zoning, land reservation acquisition, land reclassification, landslide risk land, lot size, mineral resource land, native vegetation protection, precinct and growth area boundaries, salinity, SSD, transport and arterial road infrastructure, urban release area and wetlands.

• A link to the Electronic Housing Code website, which enables users to determine whether

proposed buildings or renovations require a complying development certificate or are exempt, as well as generating reports, lodging and tracking applications for complying development certificates.

• A link to the BASIX website, with information about obtaining BASIX certificates. • The Interactive Buildings tool for exempt development, providing access to interactive

models of residential, commercial and industrial buildings which allow users to establish the changes that can be made to a property without the need for further planning or building approvals.

• Local Insights, a range of published information about every suburb intended to assist in making decisions about moving or investing in an area.

• The Local Development Performance Monitor, with statistics on a range of indicators relevant to development applications and complying development certificates.

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So what controls apply? [3.760] The starting point is usually the section 149 certificate (see above). Then the zoning under the EPI should be considered, then the rest of the EPI and any other EPis, DCPs and/or draft EPis. These documents constitute the basic legal planning framework within which the council is obliged to operate under the EPA Act in considering any development application.

• • • • • • • •

In examining the relevant LEP, pertinent questions might be: How is the land zoned? Consider land use tables and any relevant definitions. Are there any development standards that apply? Consider clauses setting standards such as floor space ratio, height controls etc.

4 Crown land and protected areas

Is the land in any special area, such as a heritage conservation area or one affected by acid sulfate soil? Are there any other clauses that apply to development on the land? Is the development by or for a public authority or is it major infrastructure? There may be exceptions to the zoning and to other provisions in the LEP because of a special clause and schedule in the LEP (see [3.120]) or because of the application of a SEPP such as SEPP (Infrastructure) 2007 (see [3.470]). Do any EPis apart from the LEP apply? There may be relevant SEPPs. Are there more detailed provisions in a DCP applicable to the development? Is the development "State significant development", "State significant infrastructure" or "critical State significant infrastructure"?

Louise

Byrne

Barrister Frederick Jordan Chambers

Assessment and disposal of Crown land in NSW ..................................................................................... [4.30] Dedication and reservation .................................................................................................................................. [4.1 OD] Development in reserved areas ........................................................................................................................ [4.320] Management plans .................................................................................................................................................. [4.490] Commonwealth protected areas ...................................................................................................................... [4.61 OJ

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[4.10]

Crown Lands Legislation White Paper [4.10] In 2012, the NSW Government commenced a comprehensive review into the management of Crown land. The Crown Lands Legislation White Paper proposes one new consolidating piece of legislation that will replace eight existing Acts, the Crown Lands Act 1989, the Crown Lands (Continued Tenures) Act 1989, the Western Lands Act 1901 and some lesser known Acts such as the Commons Management Act 1989. Submissions closed on 20 June 2014 but legislative implementation of the recommendations has not yet occurred at the time of writing (September 2015). National parks and state forests are excluded from the Crown lands management rewrite but changes to the National Parks and Wildlife Act 1974 (NSW) are also mooted. The commentary in this Chapter remains current law until proposed new Acts are promulgated.

For further details and links to the White Paper see: http://www.lpma.nsw.gov.au/crown_lands/comprehensive_review_of_nsw_crown_land_ management. [4.20] A significant amount of land in NSW is what is generally known as public land, not private land. Most of this is Crown land, which is ultimately controlled by the State Government. This includes:

• • •

Crown land that has not been allocated to particular uses Crown land leased to individuals and companies for a range of purposes, including grazing and agriculture land that has been dedicated or reserved, including National Parks and State forests.

The recognition by the High Court in Mabo v Queensland (1992) 175 CLR 1; [1992] HCA 23 that native title existed at the time of European settlement means that the Crown did not acquire full beneficial title to the land. Native title rights may still exist where the claimants can show a continuing connection with the land. This is discussed fully in Chapter 20. Local Councils own land, and have care, control and management of other land. Where the land that they manage is Crown land, the relevant legal provisions are dealt with in this Chapter. Otherwise, council land is managed under the Local Government Act 1993 as operational or community land. The relevant legislation is discussed in Chapter 8.

[4.50]

chapter 4 Crown land and protected areas

The Minister for Primary Industries is the Minister generally responsible for the Crown Lands Act 1989. The Lands portfolio is administered by the Department of Primary Industries - Lands.

Principles of Crown land management [4.40] The legislation spells out a number of principles of Crown land management (Crown

Lands Act 1989, s 11):

• that environmental protection principles be observed in relation to management and administration • that natural resources (including water, soil, flora, fauna and scenic quality) be conserved wherever possible • that public use and enjoyment of appropriate areas be encouraged • that multiple use be encouraged where appropriate • that, where appropriate, the land and its resources be used and managed in such a way that they are sustained in perpetuity • that land be dealt with in the best interests of the State consistent with these principles. Although at first sight these principles appear to be oriented towards environmental protection, the law only requires that they be taken into account in making decisions about Crown land, not that they be given any particular weight (see [2.440]). One of the declared objects of the legislation is to provide for the proper development and conservation of Crown land, having regard to these principles (s lO(c)). Apart from this, the principles are heavily qualified by the phrases "wherever possible" and "where appropriate". They certainly do not create any presumption against development or in favour of conservation. The general position is that Crown land cannot be sold, leased, licensed, dedicated or reserved until it is first assessed (ss 35(1), 85(1), 91(1)). However, the Minister can waive the requirement for assessment if satisfied that this is in the public interest, provided that due regard is paid to the principles outlined above (ss 35(2), 85(2), 91(2)(6)). Land to be reserved from sale or for future public requirements does not have to be assessed (s 91(2)(a)).

Assessment of public lands

Assessment and disposal of Crown land in NSW [4.30] The Crown Lands Act 1989 (NSW), provides for a procedure for the assessment of Crown land to identify appropriate uses before there is any decision to sell or lease it to private interests. The provisions do not apply to land in the Western Division of NSW (Western Lands Act 1901, s 2A and Schedule B). This procedure is, in essence, a system of strategic planning, and has a vital bearing on the uses to which land may be put.

Additional land-use restrictions may be placed on Crown land by zoning and other provisions of environmental planning instruments (EPls) made under the Environmental Planning and Assessment Act 1979 (see Chapter 3 ).

[4.50] The first step in the assessment process is the preparation of an inventory of existing Crown land, containing details of physical characteristics and' other matters affecting the land (Crown Lands Act 1989, ss 30, 31).

This is followed by an assessment to determine the land's capabilities for such purposes as environmental protection, nature conservation, forestry, tourism, recreation, agriculture, industry or mining, taking into account issues such as flora and fauna and the land's susceptibility to hazards and degradation (s 32; Pt 3 Crown Lands Regulation 2006). The final step is the identification of suitable uses and, where practicable, preferred uses of the land, taking into account (s 33 ):

• the particulars in the inventory • the assessment

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• • • • • • •

[4.60]

the views of any government bodies that have expressed an interest in the land the principles of Crown land management any policies relating to the land approved by the Minister. Policies approved by the Minister include:

Food and Beverage Outlets on Crown Reserves Policy 2004 Domestic Waterfront Facility Policy 2009 Fire Protection Policy for Caravan Parks on Crown Reserves and Leasehold Land 2005 The Use of Crown Reserves for Operating Caravan Parks and Camping Grounds 2010 (Source: http://www.lpma.nsw.gov.au/crown_lands/assessments.]

Information and public participation [4.60] The Minister must arrange for notice of the preparation of draft land assessments to be advertised and placed on exhibition for public comment. Proposals must be advertised if they involve sales (including conversions from leasehold to freehold) and leases exceeding five years (s 34(3)), but this advertisement might only be in a local newspaper.

Sole or lease for uses not preferred or suitable [4.70] What is the position where land is sold or leased for purposes that are not in line with the preferred uses, or even those uses identified as suitable? The implication is that the proposed use must at least be suitable, but the Minister is not bound by anything in the legislation to this effect. In the case of an outright sale, there is nothing that requires the attachment of conditions guaranteeing that the use will not be changed. There is a very broad discretion when it comes to dealings with the land (s 34).

Conditions on sale or lease of land (4.80] The Minister has the power to control the future use of land that is sold or leased by attaching conditions (ss 36, 37) such as a condition of sale prohibiting a change of use. Leases can theoretically be forfeited for breach of condition (s 129). The Minister can also create an easement for public access over dedicated Crown land, Crown land that is to be sold and, with the consent of the lessee, Crown land held under lease (ss 56, 57) .

Certain activities are prohibited on easements for public access. These include (Crown Lands Act, s 57(1); Crown Lands Regulation, cl 22):

• campmg • lighting fires • damaging or injuring flora or fauna • setting traps.

Converting leasehold to freehold [4.90] Under Schedules 7 and 7 A of the Crown Lands (Continued Tenures) Act 1989, the general position is that the Minister must grant conversion to freehold title to any applicant who

[4.100]

chapter 4 Crown land and protected areas

holds a perpetual or term lease (other than a special lease). In most cases, the land can be purchased at a minimal cost because the price was set when the lease was first granted, between 20 and 100 years ago. There seems to be an assumption that, after the land has been converted to freehold, most environmental protection issues can be satisfactorily dealt with through the environmental planning system (see Chapters 3, 5). This ignores the crucial planning role that the Crown lands legislation can play. There are certain exceptions that allow land to be retained in Crown ownership for conservation purposes. This extends to situations where (Crown Lands (Continued Tenures) Act 1989, Schedule 7, Part 1, ell 2 - 3):

• the land is required for forestry • part of the land is needed for public purposes, or • land is reserved from sale (in the case of certain leases). Dedication and reservation

[4.100] One possible outcome of the assessment process discussed above is that land is retained in Crown ownership and set aside for special purposes. This is a form of strategic planning. Its effect is that restrictions are placed on the type of development that can be carried out.

Under the Crown Lands Act 1989, Crown land throughout NSW (Western Lands Act 1901, s 2A and Schedule B) can be dedicated (s 80) or reserved (s 87) for any "public purpose", or reserved for future public requirements, although this does not prevent it from being sold or leased by the reserve trust with the consent of the Minister (ss 102,103). The Minister determines precisely what constitutes a public purpose by notice in the Gazette (s 3). Some examples of public purposes are:

• public recreation • preservation of native flora and fauna • environmental protection • soil conservation.

The reserve trust is usually a local council. The special provisions relating to public land owned or managed by local councils (community land and operational land), discussed in Chapter 8 ((8.180]), do not apply to Crown land under council care and control. Alternatively, Crown land can simply be reserved from sale, lease or licence (Crown Lands Act 1989, s 87). Crown land, with certain exceptions, can be dedicated or reserved for particular purposes under the following legislation:

• the National Parks and Wildlife Act 1974 • the Forestry Act 2012 • the Marine Estate Management Act 2014.

Under the National Parks and Wildlife Act 1974 (NSW) (s 30A), land can be reserved as: a National Park (s 33)

• • a historic site: (s 30F)

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[4.110]

• a State conservation area (ss 30G, 47B) • a regional park (ss 30H, 470) • a nature reserve (ss 30], 49) • a karst conservation reserve (ss 301, 58K) • an Aboriginal area (ss 30K, 62). Under the Marine Estate Management Act 2014 (s 23 ), an area of Crown land may be declared a marine park with the consent of the Minister for the Environment and the Minister for Primary Industries (see [19.860)). Finally, there are some areas of Crown land that are not formally dedicated or reserved for particular purposes but have, nevertheless, been declared by proclamation in the Gazette to fall into a special category.

•

This is the position with: Crown land declared under the National Parks and Wildlife Act 1974 to be:

• an

- a protected archaeological area (s 65) - a wildlife refuge (s 68) - an Aboriginal place (s 84)

aquatic reserve (Marine Estate Management Act 2014, s 34; see Chapter 19, paras 19.820 -19.850).

Land reserved as a National Park, historic site, Aboriginal area, nature reserve, karst conservation reserve, regional park and State conservation area can consist of Crown lands, lands owned by the Crown, land in respect of which the National Parks and Wildlife Reserve Trust is appointed trustee, Crown lands reserved under the Crown Lands Act 1989, and land especially acquired for the purpose (National Parks and Wildlife Act 1974, s 30B).

[4.140]

chapter 4 Crown land and protected areas

Other categories of Crown land can be reserved for protective and conservation purposes (National Parks and Wildlife Act 1974, s 30A). !fi!toric sites are "areas associated with a person, event or historical theme, or containing a burldmg, place, feature or landscape of cultural significance" (s 30F(l)).

Land c~n also be reserved as a State conservation area if it contains "significant or representative ecosystems, landforms or natural phenomena or places of cultural significance" and is "capable of ~roviding opportunities for sustainable visitor use and enjoyment", provided it can be managed m accordance with the principles spelled out in the Act, including the conservation of biodiversity (s 30G). Regional parks are areas of natural or modified landscape that are suitable for public recreation and enjoyment (s 30H).

_Sta~e conservation areas and regional parks do not have conservation as their primary obJe~tive but se_ek to balance co~servation with other objectives. They are essentially designed to provide recreational opportumties, but the use should be "sustainable" and be compatible with the "natural and cultural values" of the area (ss 30G, 30H).

Land connected with Aboriginal people [4.120] Land can be dedicated as an Aboriginal area to "identify, protect and conserve" areas "of natural_or cultural _si~nificance to Aboriginal people" or "of importance to improving public understandmg of Abongmal culture and its development and transitions" (s 30K(l)).

. ~b_original ?laces are places declared by the Minister for the Environment to be of "special sigmficance with respect to Aboriginal culture" (s 84) (see [20.730)).

Korst conse111otion areas [4.130] Karst environment is defined as (s 5):

Protected areas [4.110] At January 2012, the New South Wales terrestrial reserve system covered 7.1 million hectares or 8.8% of the State. Since the beginning of 2009, the reserve system has grown by 380,247 ha, an increase of 5.7%. The system of marine protected areas covers 345,100 hectares or approximately 34% of NSW waters and most marine bioregions are well-represented (NSW State of the Environment Report 2012, NSW EPA, page 236).

National Parks are described as areas containing outstanding or representative ecosystems, natural or cultural features or landscapes or phenomena that provide opportunities for public appreciation and inspiration and sustainable visitor use and enjoyment (National Parks and Wildlife Act 1974, s 30E(l)). Nature reserves are areas containing "outstanding, unique or representative ecosystems, species, communities or natural phenomena" (s 30J(l)). Nature reserves must be managed in accordance with certain principles including "the conservation of biodiversity, the maintenance of ecosystem function, the protection of geological and geomorphological features and natural phenomena" (s 30J(2)(a)). Flora reserves are areas of Crown land or parts of State forests designed to preserve native flora (Forestry Act 2012 s 16).

an area of land, including subte_rranean land, that has developed in soluble rock through the processes of solut10n, abras10n or collapse, together with its associated bedrock soil water, gases and biodiversity. ' ' Karst conservation reserves are areas, including subterranean land, "containing outstanding or ~epresentative examples of karst landforms and natural phenomena" (s 301(1)). Examples mclude the Abercrombie, Borenore, Wombeyan, Timor and Jenolan karst conservation reserves. One of the principles governing the management of a karst conservation reserve is "the conserva~ion of the karst environment, including the protection of catchment values, such as hydrological processes and water quality" (s 30I(2)(a)).

For a detailed analysis of karst environment and the biota it supports see Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd [2010) NSWLEC 48, at [139] and following (discussed in Chapter 1, [1.230]). ,

Wildlife refuges [4.140] Wildlife refuges can be created over unoccupied and occupied Crown land, privately owned land and land in a State forest, but not without the consent of the owners and occupiers (s 68(3)). One aim of such a dedication is to preserve, conserve, propagate and study wildlife (s 68(2)(a)).

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[4.150)

Aquatic reserves and marine porks (4.150] Aquatic reserves may be declared under the Marine Estate Management Act 2014 (s 34) in order to conserve the biodiversity of fish and marine vegetation. Marine parks may be declared under the Marine Estate Management Act 2014, s 23 in order to:

• conserve marine biological diversity and marine habitats • maintain ecological processes, and • where consistent with these objectives, provide for ecologically sustainable use of fish and

marine vegetation and to provide opportunities for public appreciation, understanding and enjoyment. See Chapter 19, [19.820) - [19.900).

Wild rivers [4.160] The Chief Executive of the NSW Office of Environment and Heritage (of which the National Parks and Wildlife Service is a part) may declare any river or part of a river within lands reserved under the National Parks and Wildlife Act 1974 to be a wild river (s 61). The purpose is to protect and conserve any watercourse or water body that has substantially natural flow and is in a near-pristine condition in terms of animal and plant life.

In 2009-11 Oxley Wild Rivers National Park was added to the existing wild rivers of: Upper Brogo, Forbes and Upper Hastings, Kowmung, Colo, and Grose rivers, and Washpool Creek.

[4.190)

• Aboriginal areas • wild rivers • protected archaeological areas • wildlife refuges • State forests • flora reserves • special management zones within state forests • marine parks • reserves under section 87 of the Crown Lands Act 1989. The declaration is subject to consent from the relevant Minister, or owner or occupier, in the case of:

• Aboriginal areas • protected archaeological areas • wildlife refuges • flora reserves

Dedications of Crown land for a public purpose under section 80 of the Crown Lands Act 1989 must be laid before both Houses of Parliament, but this is only for the purpose of giving information (Crown Lands Act 1989, s 82).

Timber areas

Parliamentary veto

(4.170] The Forestry Corporation of NSW, a stated owned corporation, manages just under 2 million hectares of native forests and half a million hectares of forest plantations under the Forestry Act 2012 (http://www.forestrycorporation.com.au).

[4.190] The procedure is more complicated in the case of:

• •

Under the Forestry Act 2012, Crown land can be: dedicated as a State forest (s 14), or a flora reserve (s 16) declared to be a special management zone within a State forest if the Minister is satisfied the area has special conservation value (s 18(1)). For a detailed discussion, see [13.140).

The process of dedication and reservation [4.180] Members of the public have no formal role to play in the .procedure leading up to dedication or reservation, although they can put informal pressure on their political representatives or the Chief Executive of the Office of Environment and Heritage. Under the National Parks and Wildlife Act 1974 (s 7), the Chief Executive has a general role to play in considering and investigating proposals for reservations and dedications.

In some cases, the formal procedure begins and ends with a notice in the Gazette (National Parks and Wildlife Act 1974, ss 30A, 61, 68; Forestry Act 2012, ss 14(1), 16(1), 18(1); Crown Lands Act 1989, s 87). This applies to:

chapter 4 Crown land and protected areas

• National Parks • historic sites • nature reserves • karst conservation reserves • State conservation areas • regional parks.

The proclamation of the reservation must be laid before each House of Parliament and ceases to have effect if rejected by either house within a limited period (National Parks and Wildlife Act 1974, ss 35, 47D, 47R, 58, 58S). The concurrence of certain Ministers must also be obtained (ss 30C, 30D) before an area can be reserved as:

• a National Park • a historic site • a State conservation area • a regional park • a karst conservation area • a nature reserve • an Aboriginal area.

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[4.200]

Revoking a dedication or reservation Role of Parliament (4.200] It is more difficult to revoke a dedication or reservation. This can ordinarily only be done by an Act of Parliament for:

• National Parks (National Parks and Wildlife Act 1974, s 37(1)) • historic sites (National Parks and Wildlife Act 1974, s 37(1)) • nature reserves (National Parks and Wildlife Act 1974, s 52(1)) • karst conservation reserves (National Parks and Wildlife Act 1974, s 58M(l)) • marine parks (Marine Estate Management Act 2014, s 25) • flora reserves (Forestry Act 2012, s 16(4)) • regional parks (National Parks and Wildlife Act 1974, s 47ZB)

With State forests, there normally has to be a resolution by both Houses of Parliament that the revocation should go ahead before the Governor can notify it in the Gazette (Forestry Act 2012, s 15). Dedications under the Crown Lands Act 1989, dedications of aquatic reserves and reservations of State conservation areas cannot be revoked if either House of Parliament, after being notified, passes a resolution rejecting the proposed revocation (Crown Lands Act 1989, s 84; Marine Estate Management Act 2014, s 38; National Parks and Wildlife Act 1974, s 47L).

Revocation by notice in the Gazette (4.210] Reservations under the Crown Lands Act 1989 can be revoked by the Minister for Primary Industries simply putting a notice in the Gazette, after the intention to revoke has been advertised (Crown Lands Act 1989, s 90).

Additions to protected areas (4.220] The NSW Office of Environment and Heritage has a program for acquiring and reserving land in accordance with the NSW National Parks Establishment Plan 2008. This Plan identifies priorities for building the terrestrial park and reserve system in each biogeographic region of NSW over the next 10 years and is based on the CAR (comprehensive, adequate and representative) assessment system of reserves. The NSW Government has adopted national targets for reserving ecosystems which are set out in Australia's Strategy for the National Reserve System 2009 - 2030. (NSW State of the Environment Report 2012, NSW EPA, p 239).The broad framework within which CAR is applied and measured is the Interim Biogeographic Regionalisation for Australia (IBRA) (see OEH website reference below). Significant additions to the reserve system since January 2009 include Toorale National Park and State Conservation Area (85,251 hectares), the Riverina Red Gum Reserves (106,364 ha), South-Western Cypress Reserves (54,387 ha) and further additions to the Brigalow and Nandewar Community Conservation Areas (22,277 ha) (NSW State of the Environment Report 2012, NSW EPA, pp 237 and 248). The NSW National Parks Establishment Plan 2008 has been reframed to provide a strategic approach to expanding the protected area system (see Directions Statement for National Park Establishment at http://www.environment.nsw.gov.au/acquiringland/ whatareourprioritiesinacquiringland.htm).

[4.250]

chapter 4 Crown land and protected areas

The focus is on the following conservation themes:

• connectivity conservation • lands improving reserve design to support the effective and efficient management of the existing reserve system • culturally important landscapes and places • poorly reserved ecosystems and critical habitats • wetlands, floodplains, lakes and rivers • lands within important water catchments • places containing significant geodiversity. Conversion of State forest to National Park (4.230] A State forest cannot be declared a National Park until a certain procedure has been followed. Section 15 of the Forestry Act 2012 provides that, after a resolution has been passed by both Houses of Parliament, the Governor may revoke the dedication of a State forest by notice in the Gazette. On revocation, the land becomes Crown land and may then be reserved as a National Park under the National Parks and Wildlife Act 1974 (s 30A).

Regional forest agreements (4.240] The State Government practice of converting substantial areas of State forest to National Park originated in its 1996 forestry reform package. The package is consistent with the National Forest Policy Statement signed by the Commonwealth and all States and Territories in 1992. The National Forest Policy Statement requires joint Commonwealth and State comprehensive regional assessments of the natural, cultural, economic and social values of Australia's forests. Comprehensive regional assessments form the basis for the negotiation between governments of regional forest agreements. One of the aims of these agreements is to establish a forest reserve system that is comprehensive, adequate and representative. As a result, substantial areas of State forest have been converted into National Parks. Regional forest agreements are discussed in Chapter 13, [13.30].

Recognition of aboriginal ownership of protected areas (4.250] A significant innovation in relation to the management of Crown lands in NSW was the enactment of the National Parks and Wildlife Amendment (Aboriginal Ownership) Act 1996, which amended the National Parks and Wildlife Act 1974 by introducing Part 4A, "Aboriginal Land" (see [20.70]). As a result of these amendments, the National Parks and Wildlife Act 1974 provides that land that has already been dedicated or reserved under that Act can be transferred to Aboriginal people in cases where it has cultural significance (ss 71C(2), 71D) . Aboriginal land councils are to hold the land in trust for traditional owners. Although ownership is transferred, there is a mandatory leaseback of the land to the Minister for the Environment for a term of thirty years (s 71AD(1)(b)) . The lease is renewable after negotiation between the parties (s 71AI), but there is a holding-over provision that means the

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[4.310]

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143

-- --------

Minister can allow the lease to continue even after it has expired (s 71AL). The Minister is obliged to pay rent to the Aboriginal owners for the loss of full enjoyment of their land through the leasing arrangement (s 71AE).

Declaring protected areas as wilderness [4.280] Land already reserved or dedicated under the National Parks and Wildlife Act 1974, including National Parks and nature reserves, can simply be declared a wilderness area under the Wilderness Act 1987 (s 8(1A)).

Wilderness areas

Declaring private and Crown land as wilderness

[4.260] The objects of the Wilderness Act 1987 are to provide for the permanent protection of wilderness areas and their proper management, and to promote public education about wilderness (s 3).

[4.290] Private land (including leased Crown land) is declared as wilderness where a conservation agreement has been successfully negotiated with the owner or Crown leaseholder (ss 8(1)(6), 16; see (12.1600]). If the terms offered to owners are not sufficiently attractive to persuade them to enter into what are entirely voluntary agreements, then apart from outright purchase there is no way of protecting the land except temporarily through an interim protection order (see Chapter 12).

Wilderness is defined (s 6) as an area of land (including subterranean land) that:

• has not been substantially modified by humans, or can be restored • is of sufficient size to be capable of being maintained in a substantially unmodified state • is capable of providing opportunities for solitude and appropriate self-reliant recreation. In practice, nearly all declared wilderness is within National Parks and nature reserves, not private land. As at 2014, the total area of wilderness in NSW was over two million hectares, which represents around 30 percent of NSW parks and reserves or 2.6% of NSW (Office of Environment and Heritage, Annual Report 2013 - 2104). Two wilderness additions were declared by the Minister in 2013-14: the Nattai Wilderness addition (11,400 ha, mostly within Warragamba Catchment) and the Goobarragandra Wilderness addition (99 ha near Tumut, to clarify a management boundary). Declared wilderness areas are to be managed in such a way as to protect their unmodified state, preserve the capacity of the area to evolve in the absence of significant human interference and permit opportunities for solitude and appropriate self-reliant recreation whether of a commercial nature or not (s 9). The italicised words were added as a result of a significant amendment to the management principles by the National Parks and Wildlife Amendment (Visitors and Tourists) Act 2010 which came into force on 1 October 2010. This indicates a fundamental shift away from a minimalist low impact form of access to wilderness areas and opens the door for the government to allow commercial use of wilderness. OEH seeks to expand opportunities for public enjoyment and appreciation of wilderness areas. A pilot program is underway to trial horse riding in selected areas (Office of Environment and Heritage, Annual Report 2013 - 2104).

Identifying on oreo os wilderness [4.270] The fact that land has been identified as wilderness does not mean that it is fully protected. Under the legislation, the Director-General of the Environment Department (currently the Chief Executive of the Office of Environment and Heritage) identifies areas which in their opinion satisfy the criteria for wilderness (s 6), including areas needed as buffer zones. Anybody can make written proposals, and the Director-General must assess these within two years and decide whether the areas should be identified (s 7). The practice has been to place assessed nominations on exhibition for public comment, but this is not a requirement of the legislation.

Crown land that has not been leased, and land owned by certain public bodies (including local councils), also depends for long-term protection on an agreement being reached between the Minister for Primary Industries and the particular Minister or public body in control of the land (s 10), such as the Forestry Corporation. These agreements are known as wilderness protection agreements. Nothing in the Act requires the Ministers or public bodies to co-operate. The consent of persons with a property interest in the land must also be obtained (s 10(2)). Agreements can take a form similar to that of conservation agreements (s 12). Before a wilderness protection agreement is concluded, the draft must be placed on public exhibition and any submissions taken into account (s 11). A register of agreements must be open to public inspection (s 14 ).

Breaches of agreements and management plans (4.300] If a conservation agreement is breached, the remedies that can be sought are those ordinarily available for a breach of contract, subject to certain restrictions on damages (National Parks and Wildlife Act 1974, s 69G).

If a wilderness protection agreement is broken, on the other hand, the legislation appears to allow the public body in breach to refer the matter to the Premier to settle the dispute. The Premier may arrange for an inquiry to be held, but does not have to (Wilderness Act 1987, s 21). Anyone can bring proceedings to remedy or restrain a breach of the Act (Wilderness Act 1987, s 27; see also National Parks and Wildlife Act 1974, s 193). This standing provision does not cover breaches of agreements. If, however, a plan of management has been prepared, legal proceedings can be brought to remedy a breach of the plan, as both the Director-General of the Environment Department and those bound by the agreement have a duty to give effect to management plans (Wilderness Act 1987, s 18(7); National Parks and Wildlife Act 1974, s 81(2)). Management plans for wilderness areas protected by conservation agreements are optional (National Parks and Wildlife Act 1974, s 72(1)(e)), but the Director-General must "from time to time" prepare a management plan where a wilderness protection agreement is involved (Wilderness Act 1987, s 17).

Revoking and varying declarations of wilderness [4.31 0] Declarations of wilderness areas based on wilderness protection agreements, and declarations of areas reserved under the National Parks and Wildlife Act 1974, can only be

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[4.320]

[4.370]

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revoked by an Act of Parliament. They can be "varied by a further notification" by publication in the Gazette, but the scope of this power is not clear (Wilderness Act 1987, s 8(3), (4A)).

A regional park may be managed by a regional park trust established for that purpose, or by a local council nominated by the Environment Minister (s 47O(3)(c)).

Wilderness areas based on conservation agreements may be varied or revoked by notification in the Gazette (Wilderness Act 1987, s 8(4)).

National parks, historic sites, nature reserves, State conservation areas, regional parks, and karst conservation areas must only be "dealt with" in accordance with the provisions of the Act (ss 40, 53, 471, 47Z, 58N).

Development in reserved areas

The Director-General of the Environment Department can only arrange to have works carried out if they are related to "the management and maintenance of" a National Park (National Parks and Wildlife Act 1974, s 8(3)) or "the protection and care of fauna and the protection of native plants" (s 8(7)).

(4.320] There are extensive restrictions on the kinds of projects that can be carried out on Crown land set aside for special purposes. Quite apart from the provisions of environmental planning instruments (see Chapter 3) and management plans (see below), public authorities can only carry out projects that are authorised by the legislation under which they were set up.

Reserves under the Crown Lands Act [4.330] The Minister for Primary Industries can grant a lease, licence or permit over a Crown reserve for any "facility or infrastructure", or for any other purpose the Minister thinks fit (s 34A). However before granting the interest, the Minister must (s 34A(2)(c}}: (i)

be satisfied that it is in the public interest to grant the instrument; and

(ii)

have had due regard to the principles of Crown land management.

Where land has been dedicated or reserved for a particular purpose, the use of the land for some other purpose is not authorised: Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (Goomallee Claim) (2012) 84 NSWLR 219; [2012] NSWCA 358, per Basten JA at [37] . Crown reserves within the Crown Lands Act 1989 dedicated for public recreation are commonly under the care, control and management of local councils as a reserve trust: see Part 5 and Division 4. There are restrictions on the grant of leases and licences in respect of Crown reserves under a reserve trust. The Minister's consent is required but may be given generally and can be dispensed with by him or her (ss 102, 102A, 108). For a detailed discussion of public land owned or managed by local councils (community land and operational land), which excludes Crown land under their care and control, see [8.200].

Management of protected areas

However the Director-General is subject to the control and direction of the Minister for the Environment (s 8(10)) and the National Parks and Wildlife Service is to carry out such works and activities as the Minister may direct, either generally or in a particular case (s 12), provided that they are within the objects and purposes of the Act. See National Parks Association of NSW v Minister for the Environment (1992) 130 LGERA 443 in which it was held that the Minister could direct the Director-General to re-open a 4-wheel drive access road through Yuraygir National Park to Shelley Beach. This power includes directing the Service to carry out works for the provision of facilities for sustainable visitor or tourist use (s 12(f) ), as amended by the National Parks and Wildlife Amendment (Visitors and Tourists) Act 2010, see below).

Mining [4.350] Unless it is expressly authorised by legislation, mining is generally prohibited in areas covered by the National Parks and Wildlife Act 1974 apart from State conservation areas. This is dealt with in detail in Chapter 18, Mining.

Logging (4.360] In theory, the Sydney Water Corporation and the Hunter Water Corporation could permit commercial logging activities in catchment areas that are protected areas within the jurisdiction of the Environment Department, but the Director-General's agreement must first be obtained, and this is to be given only after "the fullest examination" (National Parks and Wildlife Act 1974, ss 185(5), 186). Logging took place under these provisions in Morton National Park, prior to inundation under the Shoalhaven dam scheme.

[4.340] Under the National Parks and Wildlife Act 1974, the Director-General of the Environment Department is given care, control and management of:

Rights of way

The trustees of a State conservation area, once appointed, have care, control and management powers (s 47GA).

[4.370] The National Parks and Wildlife Act 1974 (s 153) allows the Environment Minister, after "the fullest examination" (s 186), to permit pipelines and electricity transmission lines to cross National Parks, historic sites, nature reserves, State conservation areas, regional parks and karst conservation areas (but not Aboriginal areas). Other rights of way can be granted "for any other purpose deemed necessary". The breadth of this provision could conceivably allow the Minister to grant an easement for the construction of a freeway through a National Park, although an alternative way of proceeding would be to revoke part of the National Park reservation (s 37(1)).

• National Parks and historic sites (s 31) • nature reserves (s 49(4)(c)) • Aboriginal areas (s 63) • karst conservation areas (s 58K(4)(c)) • regional parks (s 47O(3)(c)).

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Leases and licences [4.180] The Minister can grant leases or licences for the exclusive use of land, buildings and structures (including the erection of new buildings) for specified purposes in National Parks, historic sites, State conservation areas, regional parks, nature reserves, karst conservation reserves or Aboriginal areas. In doing so, the Minister must give effect to the objects of the Act, and give the matter "the fullest examination" (ss 151(1), (3), 186(1)). Where the erection of a new building or structure is proposed, its general location must be identified in the management plan (s 151A(5)).

Public consultation [4.190] Where the proposal involves a change of land use, the erection of a building/structure or significant modification to an existing building, the Minister must advertise it in appropriate newspapers and take comments into account (s 151F). A public hearing is at the Minister's discretion (s 151F(4)). Some proposals have to be referred to the National Parks and Wildlife Advisory Council (s 151G). A register of leases and licences that have been granted is available at http://www.environment.nsw.gov.au/protectedareas/RegisterOfLeases.htm (s 15 lJ).

Nature reseroes [4.400] So far as nature reserves are concerned, the legislation simply provides that leases and licences can only be granted for a purpose consistent with the management principles (s 151A(2)). These provide that nature reserves must be managed to conserve natural and cultural values, while promoting public enjoyment and understanding of these values (s 30J).

Other protected areas [4.410] In the other categories of protected area, the purposes for which buildings can be provided under leases or licences are spelled out in more detail in section 151A. They include surf life-saving clubs, sporting activities, research facilities, recreational, educational and cultural activities, and, more generally, any other purpose consistent with the relevant management principles provided it is identified in the management plan for the area concerned (s 151A(l)(a)). In ski resort areas, leases and licences can be granted for any development permitted under the applicable environmental planning instrument made under the Environmental Planning and Assessment Act 1979 (s 151A(3)); see generally, Chapter 3).

Sustainable tourism [4.420] As a result of amendments to the Act by the National Parks and Wildlife Amendment (Visitors and Tourists) Act 2010 which commenced on 1 October 2010, leases and licences can also be granted (other than in nature reserves) for (s 151A(l)(b)(i) - (iv)):

• • •

tourist and visitor accommodation facilities and amenities for visitors and tourists, including restaurants and other food outlets ancillary facilities, including retail outlets and conference facilities, and

[4.440]

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• information centres, restaurants, cafes, kiosks and other food outlets. There is some concern that these tourism amendments have opened the door for commercial uses and alienation of protected areas. They certainly do allow a range of activities based on exclusive commercial use in protected areas. However, the significant constraint on these powers is that leases and licences must give effect to the objects of the Act (s 251(3)). This legislative addition reflects the decision of the Court of Appeal in Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710. The Act's objects include that the various types of protected area be managed in accordance with relevant management principles spelled out in the legislation (ss 2A(l)(d)), 30E - 30K). For National Parks, for example, these principles include not only the conservation of natural and cultural values, but also "provision for sustainable visitor or tourist use and enjoyment that is compatible with the conservation of the National Park's natural and cultural values" (s 30E(2)(e); emphasis supplied). Development must be "sustainable" within the principles of ecologically "sustainable development" (s 5(1); see [1.190]). In addition, the Minister, before granting a lease or licence must be satisfied of a number of things, including compatibility with the natural and cultural values of both the particular area and the protected area in the vicinity (s 151B) . Assessment criteria developed by the Director-General of the Environment Department must be considered, along with a special report where a lease is proposed (s 151B).

Adaptive reuse [4.410] Leases and licences can also be granted to facilitate the adaptive reuse (s 5(1)) of an existing building or structure or the use of a modified natural area (an area that has been cleared and cannot be restored) (ss 5(1), 151A(l)(c)).

Case studies: Activities in protected areas [4.440] In Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710 (the Simon University case), a postgraduate school of business administration, situated in existing buildings that were to be restored by the licensee, was held not to be permissible under the legislation as it then existed because it was not an activity that promoted the enjoyment of the park by the public. This was despite the fact that the arrangement would have provided the National Parks and Wildlife Service with much needed funds for the management of the National Park, as well as allowing use of the buildings during half the week by other organisations offering educational services or facilities to the public. Under the 2010 amendments to the Act, a lease of existing buildings for these purposes may now be allowed under the readaptive reuse provisions, provided that "the modification and use are not inconsistent with the conservation of the natural and cultural values of the land" (ss 5(1), 151A(l)(c)). In Blue Mountains Conservation Society Inc v Director General of NPWS (2004) 133 LGERA 406 the Land and Environment Court held that an approval and consent for commercial filming activity and associated activities were invalid. The makers of the Hollywood film Stealth had sought to shoot part of the film in an area

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Environmental planning controls near Mount Hay, which was both a declared wilderness under the Wilderness Act 1987 (the Grose Wilderness) and a National Park under the National Parks and Wildlife Act 1974 (the Blue Mountains National Park). The court held that the production of a commercial feature film was not appropriate public recreation in the context of the objects of the National Parks and Wildlife Act 1974 or in the context of the purpose of reserving land as National Park. In addition, the filming activity did not satisfy any of the management purposes in section 9 of the Wilderness Act 1987. In the court's view, declared wilderness areas were sacrosanct.

In response to the case, the State Government enacted the Filming Approval Act 2004 to allow approval to be given for filming in National Parks, including wilderness areas. The Filming Approval Act 2004 also facilitated filming in marine parks which is permissible with the consent of the Minister under the current Marine Estate Management Act 2014 and Marine Estate Management (Management Rules) Regulation 1999, cl 1.33.

Trades and businesses [4.450) The Director-General can grant licences to carry on trades, businesses or occupations in a National Park, historic site, State conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area after giving the matter "the fullest examination" (ss 152(1), 186(2)). The Minister can grant a franchise to any person for the sale of goods and services, the provision of public transportation or 7:he supply of other facilities and amenities within these areas (s 152(3)).

Development in wilderness areas [4.460) Where wilderness areas are located in National Parks and nature reserves, the leases or licences normally available under the provisions discussed above cannot be granted (National Parks and Wildlife Act 1974, s 153A). However since the National Parks and Wildlife Amendment (Visitors and Tourists) Act 2010 came into operation, the Minister has the power to grant licences and franchises for trade and businesses in these areas under s 152 (for example, commercial tours). All government departments, public authorities and local councils, whether or not they are parties to a wilderness protection agreement, must obtain the consent of the Environment Minister before carrying out development in a wilderness area, including land clearing. Before granting consent, the Minister must conclude that the area will not be adversely affected (Wilderness Act 1987, s 15). Where privately owned land is declared as wilderness on the basis of a conservation agreement, the extent to which the landholder is allowed to carry out development will be determined by the provisions of the agreement and applicable environmental planning instruments.

[4.470) Reserved and dedicated land will still be subject to the p~ovisions of any ~elevant environmental planning instruments (EPis) made under the Environmental Planning and Assessment Act 1979 (see Chapter 3). EPls cannot authorise any activities or projects on the land that are not authorised by the legislation under which the reservation or dedication was made, but they can impose additional restrictions. Therefore, the reservation and dedication process operates as an important backdrop to the planning process in relation to these areas of land. See Case Study, Friends of King Edward Park Inc at [4.540].

Development adjoining OEH land and water [4.480] Guidelines for developments adjoining land and water managed by t~e Office of Environment and Heritage (2010) have been prepared by OEH for use by councils and other consent authorities when assessing development applications that may impact on:

• land acquired, reserved or dedicated under the National Parks and Wildlife Act 1974 • land declared to be an aquatic reserve under the Marine Estate Management Act 2014.

OEH also works with the Marine Estate Management Authority to manage land declared to be a marine park under the Marine Estate Management Act 2014. [See http://www.environment.nsw.gov.a u/resources/protectedareas/10 5 0 9devadj deccw. pdf].

Management plans [4.490] The legislation allowing Crown land to be set aside for special purposes also provides for detailed management plans to be made for these areas.

Mandatory plans (4.500] Management plans must be prepared "as soon as practicable" for:

• National Parks • historic sites • nature reserves • State conservation areas • regional parks • karst conservation reserves.

It has been held that there was a breach of the Act where a management plan had not been prepared 17 years after a National Park came into existence (National Parks Association of NSW v Minister for the Environment (1992) 130 LGERA443). Where Aboriginal land is reserved or dedicated under Part 4A of the National Parks and Wildlife Act 1974, a plan of management is to be prepared by the board of management for the lands concerned, in consultation with the Director-General of the Environment Department (s 72(1C)).

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[4.510]

Under the Forestry Act 2012, a "working plan" must be prepared for flora reserves (s 25(1)). Management plans are prepared for State forests (s 21(1))). When flora reserves are located in State forests, the forest management plan provides general provisions and the working plan deals with the finer details.

Optional plans [4.510) Plans are optional (National Parks and Wildli-'e /C Act 1974 ' s 72·) Crown Lands Act 1989 ) s 112) for:

• Aboriginal areas • wildlife refuges • land dedicated or reserved under the Crown lands legislation. Making management plans

[4.520) Management plans under the National Parks and Wildlife Act 1974 are initially prepared by the Director General of the Environment Department, or by the local council that has care, control and management of a State conservation area or regional park. They are eventually submitted to the Minister for the Environment, who has the final say on the matter (see generally National Parks and Wildlife Act 1974, Part 5). Plans for wildlife refuges and land subject to a conservation agreement require the consent of the owner and the occupier (s 73B(6)).

Preparing and exhibiting plans [4.530) Management plans for protected areas under the National Parks and Wildlife Act 1974 must be placed on public exhibition (s 73A). Members of the public then have a period of not less than 90 days to make representations, which must be forwarded by the responsible authority to the National Parks and Wildlife Advisory Council. This council has a diverse membership of all relevant stakeholders (s 22, Schedule 7). The plan, with the suggestions or comments of the council, is then referred to the Minister, who has the final say (s 73B). Management plans for reserves under the Crown lands legislation are prepared by the Minister or, with the Minister's consent, the reserve trust (Crown Lands Act 1989, s 112). The trust is charged with the care, control and management of the land (s 92(5)). The Minister has the final say (s 114(1)), after the draft has been placed on public exhibition and any representations have been considered (s 113; Crown Lands Regulation 2006, cl 34).

Case study: Commercial function centre not allowed in a Crown Reserve within a public park [4.540) In Friends of King Edward Park Inc v Newcastle City Council (No 2) [2015] NSWLEC 76, a local community association challenged the grant of a development consent by Newcastle Council for a "function centre" situated in the Park. The proposed development was located in a crown land reserve (King Edward

[4.560)

chapter 4 Crown land and protected areas

Headland Reserve) managed by the State Government via a Trust, situated within a large public park managed by the council. Both of these areas of land were reserved from sale for the purposes of "public recreation" under Crown land legislation from as early as 1894. In September 2007 a plan of management for the Reserve was adopted by the Minister which by its terms sought to approve additional uses for "conference centres and commercial facilities that provide for public recreation". The council's LEP provided that any use allowed under a Plan of Management was permissible with development consent. In finding for the applicant and declaring the development consent to be invalid, Justice Sheahan said that the use of land for private functions such as weddings is inimical to its use for public recreation. His Honour reviewed the earlier case law concerning the use of land for "public recreation". The Court also found the Plan of Management to be invalid because the Minister did not consider the mandatory relevant matters under s 114(1C) of the Crown Lands Act 1989. This case also provides a useful illustration of the interaction between planning law and the principles concerning management of Crown land.

Catchment areas and submerged lands [4.550) Where a National Park, historic site, nature reserve, karst conservation reserve, wilderness area or Aboriginal area is in a catchment area, the Director-General must refer the draft plan to the relevant water supply authority, and the Minister must consider any representations made before adopting the plan (National Parks and Wildlife Act 1974, s 74). To protect the quality of water in Sydney Water's storage areas, tracts of land surrounding the storage areas have been gazetted as special areas under the Water NSW Act 2014. These special areas comprise an extensive (365,000 hectare) and largely contiguous band of unspoilt bushland within the drinking water catchment of greater Sydney. They are jointly managed by Water NSW and the National Parks and Wildlife Service according to a Special Areas Strategic Plan of Management (SASPoM) made under section 49 of the now repealed Sydney Water Catchment Management Act 1998. Requirement for preparation of SASPoMs is now provided by section 52 of the Water NSW Act 2014. The current SASPoM applies to all publicly-owned land, but not privately-owned land, in the special areas. In accordance with the SASPoM, Water NSW and the National Parks and Wildlife Service manage 86% of the special areas, with the remaining lands privately owned.

Land under water [4.560) Draft plans must be submitted to the Fisheries Minister for comment if they are for land under water in:

• National Parks • historic sites • State conservation areas • regional parks • nature reserves

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[4.570]

• karst conservation reserves • Aboriginal areas. In the case of land in territorial waters (see [19.840]), the concurrence of the Fisheries Minister is required for plans (National Parks and Wildlife Act 1974, s 80).

Floro reserves and State forests [4.570] Working plans for flora reserves and management plans for State forests do not have to be submitted to the Minister for the Environment for approval. However, section 73 of the National Parks and Wildlife Act 1974 enables the Director-General of the Environment Department to prepare a management plan for a State forest, with the agreement of the Forestry Corporation. In this case, the Minister can adopt the plan, provided that the written agreement of the Forestry Corporation is first obtained. Such plans must be cancelled at the request of the Forestry Corporation (s 73B(8)). See Chapter 13 on the management of land under the jurisdiction of the Forestry Corporation.

Objectiv es of management plans [4.580] The National Parks and Wildlife Act 1974 spells out the objectives to be pursued in making management plans. These include (s 72AA}:

•

the specific management principles provided for each category of land that can be reserved under the Act. That is: -

National Parks (s 30E) historic sites (s 30F) State conservation areas (s 30G) regional parks (s 30H) karst conservation reserves (s 301) nature reserves (s 30J) Aboriginal areas (s 30K)

• the conservation of biodiversity, including the maintenance of habitat, ecosystems and populations of threatened species • the protection and appreciation of objects, places and structures of cultural significance, and tracts of land • fire management • the potential for the reserved land to be used by Aboriginal people for cultural purposes • the rehabilitation of landscapes and the reinstatement of natural processes. There is no provision in the Forestry Act 2012 dealing directly with the objectives of management plans. Since the enactment of the Forestry Act 2012 the Minister has no role in the making of management plans, it is the Forestry Corporation, constituted as a SOC under the State Owned Corporations Act 1989. However, the objectives of the Forestry Corporation include compliance with the principles of ESD, (s l0(l)(c)), and "to be an efficient and environmentally sustainable supplier of timber from Crown-timber land and land owned by it under its control and management": section l0(l)(e) of that Act. The Corporation also has to

[4.600]

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abide by the objectives of a land manager under Pt 5 of the Act: ss 10(3) and ll(l)(e), Forestry Act 2012, and State forest management plans should be in line with these objectives which are set out in s 59 of the Act. The Act provides that, the principle objectives specified in ss l0{l}{a) and l0(l)(e) do not apply in relation to the Forestry Corporation's functions as a land manager: s 59(3), Forestry Act 2012 but conducting its activities in compliance with ecologically sustainable development set out ins l0(l)(c) continues to apply to its role as a land manager. See further Chapter 13.

Enforcing management plans [4.590] Once the Minister has made a management plan or a working plan for flora reserves, it is legally binding: no operations can be undertaken on or in relation to the area unless they are in accordance with the plan (National Parks and Wildlife Act 1974, s 81(4); Forestry Act 2012, s 25(4); Crown Lands Act 1989, s 114(2)). In Guthega Development Pty Ltd v The Minister Administering the National Parks and Wildlife Act (1986) 7 NSWLR 353, however, it was held that the mere grant of a lease did not amount to "operations" that had to be authorised by the management plan, even though the lease required the lessee to carry out "operations" . There was time for the requirements of the management plan to be observed after the grant of the lease but before the operations were carried out.

The Director-General of the Environment Department and the trustees of State conservation areas have the duty of carrying out and giving effect to management plans (National Parks and Wildlife Act 1974, ss 81(1), 81(3A)), and anyone can bring proceedings to ensure that this is done (s 193). A similar duty is placed on the trustees of Crown land reserves (Crown Lands Act 1989, s 114(2)), but this is somewhat illusory because the Minister can simply alter or cancel the plan at any time (s 115). Management plans under the National Parks and Wildlife Act 1974 can also be amended, but the proposed changes must go through the same vetting process as the original plan (National Parks and Wildlife Act 1974, s 73B).

Enforceability of management plans [4.600] What does enforceability mean in practice? Are management plans written in terms that create legally enforceable obligations on those administering them?

The precise wording of plans needs to be carefully examined. Plans may not use language that creates a positive duty to carry out a management activity but instead simply give discretion to those administering the plan by using words such as "may" rather than "should" or "must". Where obligations to carry out management activities are qualified by phrases such as "where necessary", "as far as possible" or "as soon as possible" they will be difficult to enforce. Even where plans incorporate timetables for the completion of management activities, these will nearly always be made subject to the availability of funds and other considerations.

It is much easier to see how provisions prohibiting activities might be legally enforceable. In management and working plans for State forests and flora reserves, harvesting operations may be prohibited in certain zones designed for conservation purposes. In plans for National Parks, there may be prohibitions against such things as grazing, beekeeping and public motor vehicle access.

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But even prohibitions are sometimes worded in such a way as to give decision-makers some discretion about applying them. For example, there may be provision to grant a particular permission or to modify prohibitions in the light of changed circumstances. A limit on the yield of a particular type of log in a forestry management plan may be subject to review, taking into account such things as the economics of supply and demand and the principle of sustainable yield.

Commonwealth protected areas [4.610] The Commonwealth defines a "protected area" as: a clearly defined geographical space, recognised, dedicated and managed through legal or other effective means to achieve the long-term conservation of nature with associated ecosystem services and cultural values. [Source: Australian Government, Department of the Environment website] The primary purpose of the recognition, dedication and management of protected areas 1s biodiversity conservation according to the classification system and management objectives developed by the International Union for the Conservation of Nature (IUCN). In practical terms, the States and Territories have primary responsibility for creating protected areas. While there is a National Reserve System (NRS) that seeks to ensure that a sample of all of Australia's diverse ecosystems, and the plants and animals they contain, are protected, most of the protected areas in this system have been created and are managed by the States (in NSW, under the National Parks and Wildlife Act 1974, discussed earlier in this Chapter) rather than by the Commonwealth, as Commonwealth reserves. The vast majority of land in the NRS is national park or public reserve but also includes areas of private land and indigenous community owned land (Indigenous Protected Areas) which is securely managed for biodiversity conservation. However the Commonwealth has remained active in the goal of protected area establishment and management by states and territories. In 2009, the NRS Task Group prepared a NRS Strategy 2009 - 2030 which identifies priority actions to provide a nationally coordinated approach, including the identification of critical areas for climate change resilience, such as refugia 1, to act as core lands of broader "whole of landscape scale" approaches to biodiversity conservation by 2030 [Source: Australian Government, Department of the Environment]. There are detailed provisions in Part 15 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) relating to Commonwealth reserves: protected areas on land within the jurisdiction of the Commonwealth. In addition, there are provisions in the Commonwealth legislation implementing Australia's obligations under international conventions relating to world heritage and wetlands. There are a number of areas in NSW that are listed under these conventions and so these provisions are considered in more detail.

Meaning: an area in which a population of organisms or species can survive through a period of unfavourable conditions, such as drought, fire or glaciation.

[4.630)

chapter 4 Crown land and protected areas

Commonwealth reserves [4.620] Commonwealth reserves (Environment Protection and Biodiversity Conservation Act 1999, Division 4) can be declared over (ss 343 - 352):

• areas of land or sea that the Commonwealth owns or leases • areas that are in a Commonwealth marine area • areas outside Australia that the Commonwealth has international obligations to protect.

The proclamation declaring an area to be a Commonwealth reserve must assign the reserve to one of the following categories (s 346(1)(e); Environment Protection and Biodiversity Conservation Regulations 2000, reg 10.03H):

• strict nature reserve • wilderness area • National Park • natural monument • habitat/species management area • protected landscape/seascape • managed resource protected area.

These categories are derived from those developed by the IUCN. Management principles for each category are set out in Schedule 8 of the Regulations (s 348(1)). Permissible and prohibited activities in Commonwealth reserves and conservation zones are governed by the plans of management and the Environment Protection and Biodiversity Conservation Regulations 2000 for the purposes of protecting the environment and conserving biodiversity (ss 354, 356, 390E).

World heritage areas and Ramsar wetlands [4.630] Australia is a party to both the Convention for the Protection of the World Cultural and Natural Heritage (1972) (see [17.40]) and the Convention on Wetlands of International Importance (1971), commonly known as the Ramsar Convention (see [14.670]). The Environment Protection and Biodiversity Conservation Act 1999 implements these Conventions by enabling the Commonwealth, after seeking the agreement of the relevant State Government (ss 314(2), 326(2)), to submit properties for listing on the World Heritage List and to submit wetlands for inclusion in the List of Wetlands of International Importance. Australia currently has 65 wetlands on this List that cover more than 8.3 million hectares [Source: Australian Government, Department of the Environment]. Both lists are kept at an international level. A number of properties and wetlands in NSW are included in these lists. Some of those on the List of Wetlands oflnternational Importance are located on private land (eg, Macquarie Marshes, Gwydir wetlands), but some of the wetlands on this list (eg, Towra Point Nature Reserve, Lake Pinaroo, Little Llangothlin Lagoon, Myall Lakes and Narran Lake) and some properties on the World Heritage List (eg, the Gondwana rainforests and the Greater Blue Mountains) incorporate significant areas of Crown land protected under the provisions of the National Parks and Wildlife Act 1974, discussed above in this Chapter.

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In addition to the protection provided for these areas under NSW legislation, the Environment Protection and Biodiversity Conservation Act 1999 contains important protective provisions. Any action that is likely to have a significant impact on the ecological character of a Ramsar wetland or the world heritage values of a world heritage property triggers the need for Commonwealth assessment and approval (see [14.640]). This includes wetlands and properties not yet listed at an international level, but with the potential to be listed, in situations where the Commonwealth Environment Minister has declared that they are under threat (ss 13, 14, 17, 17A).

Apart from this, however, management of NSW protected areas included on these international lists is within the domain of the NSW Government. The Commonwealth legislation simply provides that the Commonwealth "must use its best endeavours" to see that a management plan which satisfies Australia's obligations under the Conventions is prepared and implemented in co-operation with NSW (ss 320, 321, 332, 333), perhaps offering financial or other assistance as an inducement (ss 324, 336). In this connection, the Commonwealth has developed management principles elaborating the provisions of the Conventions (ss 323, 335; Environment Protection and Biodiversity Conservation Regulations 2000, Schedules 5, 6).

5 Development Dr Peter Williams Faculty of the Built Environment University of New South Wales

Introduction ..................................................................................................................................................................... [5.20] When is development consent required? ....................................................................................................... [5.50] Legal classification of development ................................................................................................................ [5.270] Nonconforming uses ............................................................................................................................................... [5.410] Development applications .................................................................................................................................... [5.570] Who makes the decision? .................................................................................................................................... [5.830] Public participation ................................................................................................................................................... [5.910] Making the decision .............................................................................................................................................. [5.1180] Development consents ....................................................................................................................................... [5.1500] Development contributions .............................................................................................................................. [5.1880] Reviews and appeals ........................................................................................................................................... [5.2220] Modification, revocation and lapsing of consent ................................................................................... [5.231 OJ Enforcement of consents ................................................................................................................................... [5.2500] State significant projects ................................................................................................................................... [5.2690]

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[5.05]

Greater Sydney Commission Act 2015 [5.05] On 12 November 2015, the NSW Parliament passed the Greater Sydney Commission Act 2015. The Act was assented to on 19 November 2015, but at the time of writing has not yet commenced. Once established, the Greater Sydney Commission will undertake a number of strategic planning and development assessment functions. The Commission will assume the development assessment functions of the two Sydney Joint Regional Planning Panels. The Environmental Planning and Assessment Act 1979 will be amended so that the Greater Sydney Commission is defined as a "consent authority" under that Act. [5.10] In this Chapter, the "Act" or "EPA Act" refers to the Environmental Planning and Assessment Act 1979 (NSW) and the "Minister" refers to the Minister administering this legislation (currently the Minister for Planning). "Secretary" refers to the Secretary (formerly Director-General) of the Planning Department, currently the Department of Planning and Environment. The "Regulation" or "EPA Regulation" refers to the Environmental Planning and Assessment Regulation 2000 (NSW). "Consent authority" refers to the body responsible for granting development consent, frequently a local council.

Introduction [5.20] Examined in this Chapter are project assessment and decision-making processes under Parts 4, 4A and 5.1 of the EPA Act. Environmental assessment under Part 5 of the EPA Act is covered in Chapter 6. For the purposes of this Chapter, a project includes not only the erection of buildings or other structures, but also such things as:

• • • •

clearing land spraying pesticides extracting water for irrigation discharging waste. In some cases, one project might consist of a combination of activities.

A project may be carried out by any organisation - a government body, private industry or a farming cooperative, for example. It may also be purely personal - for example, building a home. In all these cases, the question is: under what circumstances will the law permit a particular project to go ahead? In most cases, a project requires approval from a particular public authority, following an application by a developer. Certain activities are completely prohibited by law. For example, prospecting for or mining uranium in NSW is prohibited by the Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986 (s 7(1): see [18.1270]). Generally, however, there is a reluctance to take such an inflexible position. Many statutory provisions appear at first sight to be absolute prohibitions, but most provide that approval (a licence or consent) can be sought for the activity in question. Even the general prohibitions against harming threatened species and damaging their habitat are bypassed where prior permission has been obtained (National Parks and Wildlife Act 1974, ss 118A, 118D). Other projects are not prohibited altogether, but must be carried out in a particular way or comply with certain general requirements or "standards". If, for example, the project amounts to development,

[5.40]

chapter 5 Development

it will usually have to comply with development standards set out in environmental planning instruments (EPis, see [3.170]). If it is a building, it will usually have to comply with building standards contained in the Building Code of Australia.

How many approvals are required? [5.30] Ideally, only one application for approval should have to be made to one decision-making body. This is often not the case. The law may regard a project as a number of activities, each requiring the approval of a different decision-maker under various pieces of legislation - and if approval cannot be obtained for a particular activity, the whole project may collapse. A new mine, for example, is likely to require not only a mining lease, but also at least the following other approvals:

• an environment protection licence under the Protection of the Environment Operations Act 1997 (see [9.670]) • development consent under the Environmental Planning and Assessment Act 1979 (EPA Act) (discussed in this Chapter) • a licence under the Water Act 1912 or the Water Management Act 2000 (see Chapter 15).

There are several explanations for this situation. One is historical: different legal controls, focusing on different aspects of projects, were introduced at different times, and often little attempt was made to reconcile them with provisions that already existed. Another is the structure of the executive government: generally, particular Ministers and agencies are responsible for sponsoring new legislation that lies within the area of responsibility of the relevant Minister or agency. A related explanation is that it is considered appropriate for different Ministers or agencies to make decisions on different aspects of a proposal under different legislation reflecting specific types of expertise belonging to the Minister' s advisers or the agency concerned. Sometimes requirements differ because there is competition between public bodies or government departments, because of the constitutional division of power between State and Commonwealth governments, or because of the political balance of power between State and local government.

Integrating the approvals process [5.40] Late in the 20th century, legislators had become aware that the various approval requirements caused problems and made some attempt to integrate them. For example, the Mining Act 1992 contains extensive provision for integrating the granting of mining titles with the provisions of the EPA Act (see [18.480]). More generally, amendments made in 1997 to the EPA Act introduced the concept of integrated development into the development control system (see [5.370]). The 1997 amendments also took a step towards reducing the number of separate approvals required for a project by incorporating building and subdivision approval requirements formerly contained in local government legislation into the procedure for implementing a development consent.

Much of the statutory planning reform to the project assessment system since 1997 has focused on calibrating the operation of the integrated development assessment amendments to the EPA Act. For example, in 2005, a separate streamlined system for the assessment of major projects was introduced into the EPA Act. That system was repealed by the Environmental

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Planning and Assessment Amendment (Part 3A Repeal) Act 2011 which came into operation on 1 October 2011, and was replaced by a new process for State significant development and State significant infrastructure (see [5.2700]).

How approvals work [5.50] Some approvals seek to regulate projects as an ongoing activity (eg, environment protection licences), while others focus on their initial setting up (eg, development consent). Where an approval regulates an ongoing activity, the decision-maker has much greater power to adjust conditions. An approval may also have to be renewed or reviewed regularly: for example, environment protection licences must be reviewed at least every five years (Protection of the Environment Operations Act 1997, s 78).

Approvals dealing with the initial setting up of a project are less flexible, and ordinarily do not have to be renewed. This means that they give long-term enforceable rights to the person obtaining approval. It is commonly assumed that development consent under the EPA Act is somehow at the core of this complex regulatory system - probably because development consent is the commonest form of approval encountered. But many projects do not require development consent, even though they may require approval under other legislation. Even where development consent is required, it is in no sense pre-eminent. Other approvals must be obtained if the law requires them, and if any of them are refused, the project cannot go ahead. Development consent is only one of a number of overlapping project control processes operating at present in NSW. However, it is the focus of this Chapter.

When is development consent required? [5.60] Whether development consent is required is generally determined by an environmental planning instrument (EPI) made under Part 3 of the EPA Act (see Chapter 3). The provisions of Part 3 relating to EPis and development control are very broadly worded: section 24 allows for the making of EPis for achieving any of the objects of the Act, and section 26 is similarly expansive in terms of describing the contents of EPis. An EPI can control development (s 26(1)(6)) by either waiving the necessity for consent (s 30(1)(a)), requiring consent (s 30(1)(6)) or prohibiting development (s 31 ). Since the 1997 amendments to the Act, the term development includes anything referred to in section 26 that is controlled by an EPI (s 4).

If an EPI requires that consent be obtained before a particular activity can be carried out, the provisions of Part 4 of the EPA Act apply. In general terms, Part 4 of the Act establishes a threefold classification for development:

• • •

development that does not need development consent (s 76) development that needs consent (s 76A) development that is prohibited (s 76B). See also Chapter 3.

chapter 5 Development

[5.80)

Land use tables [5.70] In practice, development consent is most frequently required by the land use tables in local environmental plans (LEPs), although it would be unwise to look only there. The whole of the LEP should be examined in detail, along with any State environmental planning policies (SEPPs) that apply to the land in question. Care must be taken because any EPI can amend, expressly or impliedly, the provisions of a previous EPI (Marchese and Partners Architects v Warringah Council [2002] NSWLEC 41).

Land use tables regulate development. Sections 33A and 33B of the EPA Act provide for the standardisation of EPis and the staged repeal and review of non-standardised instruments. The Standard Instrument (Local Environmental Plans) Order 2006 provides for the standardisation of local environmental plans in accordance with a standard instrument template, generally referred to throughout this book as the Standard LEP or Standard Instrument (see [3.100]). The Standard LEP contains a Land Use Table that sets out for each zone the objectives for the zone and the development that is permitted without development consent, only with development consent and prohibited. Older instruments have similar tables. To determine whether development is permissible with consent, two questions must be answered: 1.

does the project amount to development?

2.

does the land use table say that a project for this purpose requires development consent?

What is development? [5.80] Under the EPAAct (s 4(1)), development means:

• the use of land • the subdivision of land

• the erection of a building

• the carrying out of a work • the demolition of a building or work • any other act, matter or thing referred to in section 26 that is controlled by an EPI (see below). In Lennard v Jessica Estates Pty Ltd (2008) 71 NSWLR 306; [2008] NSWCA 121, the NSW Court of Appeal held that whilst each of the subsets of the definition of development in s 4(1) may be mutually exclusive, the phrase "a land use" in the applicable EPI, when read in context, extended not only to the use of land for a particular purpose but also to the erection of buildings to enable that use to be carried out.

Development "does not include any development of a class or description prescribed by the regulations for the purposes of the definition" - that is, something is not development if regulations made under the Act say it is not. The reference in the definition to the mere use of land being development must be read alongside provisions that protect existing and continuing uses (see [5.420]) .

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What is "the use of land"?

[5.130)

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Demolition of a building or work includes enclosing a public place in connection with the demolition of a building or work (s 4(2)(e)).

[5.90] In Warringah Council v Swain [2010] NSWLEC 68, the Land and Environment Court

held that the long-term storage of a commercial fishing vessel in the front yard of residential premises was development because it involved the use of the land. Craig J acknowledged that often the determination of whether a particular activity constitutes development will be a matter of fact and degree and held on the facts that the length of time over which the vessel had stood in the yard of the residential premises, its apparent use as a commercial fishing trawler and its state of repair meant that the storage of it constituted a use of land in planning terms, and therefore development. Development comprising "a use of land" refers to or includes incidental and associated uses (North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; [1996] HCA 20). Any person who uses land in some way carries out a development of it (Hillpalm Pty Ltd v Heavens Door Pty Ltd (2004) 220 CLR 472; [2004] HCA 59). In Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285; [2008] HCA 48, the High Court said that recurring physical acts on land, by which the land is made to serve some purpose, will usually constitute a use of the land. Applying this approach, in Hill Top Residents Action Group Inc v Minister for Planning (2009) 171 LGERA 247; [2009] NSWLEC 185, Biscoe Jin the Land and Environment Court held that depositing bullets and excluding the public from a danger area associated with a rifle range constitutes a use of land in planning terms. See also Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493; [1957] HCA 15 where the High Court, in a rating case decided under the Local Government Act 1919, held that land adjoining hospital grounds and purposely kept in its natural state to provide clean air and quiet undeveloped surroundings for users of the hospital was a use of land.

Building [5.100] Until the commencement of the Environmental Planning and Assessment Amendment

Act 1997 on 1 July 1998, there was a separate but interlinked system of building regulation, administered by local councils. That system was initially contained in Part XI of the Local Government Act 1919, then in the Local Government Act 1993. Building and demolition is now regulated under the EPA Act, apart from installation of a manufactured home, moveable dwelling or associated structure, which requires approval under the Local Government Act 1993 (s 68: see [8.60]).

Erecting or demolishing a building [5.110] The erection of a building is defined in the EPAAct (s 4(2)(6)) to include:

• the rebuilding of, the making of alterations to, or the enlargement or extension of, a building • the placing or relocating of a building on land • enclosing a public place in connection with the construction of a building • erecting an advertising structure over a public road • extending a balcony, awning, sunshade or similar structure or an essential service pipe beyond the alignment of a public road.

Erecting temporary and minor structures [5.120] If a temporary structure is erected, does that comprise the erection of a building as defined in the Act? Section 4(1) of the EPA Act defines a building to include part of a building and any structure or part of a structure, other than a manufactured home, a moveable dwelling or associated structure, or a temporary structure.

In Najask Pty Ltd v Palerang Council (2009) 165 LGERA 171; [2009] NSWCA 39, the NSW Court of Appeal held that the terms moveable dwelling and manufactured home do not necessarily import a degree of permanency of habitation or occupancy. Instead, the relevant definitions refer to physical characteristics rather than the degree of permanence.

In Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2008] NSWLEC 181, Pain Jin the Land and Environment Court held that the installation of holiday cabins on land did not constitute building work as defined in section 4(1) of the Act because the cabins were moveable dwellings. In Cohen v Wyong Shire Council [2005] NSWCA 46, the NSW Court of Appeal held that a shipping container placed on land was a building that required consent. The definition of temporary structure in section 4(1) of the Act now specifically "includes a booth, tent or other temporary enclosure (whether or not part of the booth, tent or enclosure is permanent), and also includes a mobile structure". The question whether the erection of a minor structure constitutes development depends on whether the Act was intended to cover that type of structure (Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302). In Conomos v Chryssochoides (1997) 97 LGERA 113, it was held that a set of sewer and drainage pipes on the side of a residential building in an urban area was a structure or part of a structure because "their effect upon the amenity of the adjoining neighbour is unreasonable in all the circumstances". A similar approach was taken in Burwood Council v Russo (40145 of 1994, 14 March 1995), where corrugated iron sheeting was held to be a structure in a densely populated urban residential area. In Blacktown City Council v Lacan Pty Ltd [2008] NSWLEC 172, Preston J in the Land and Environment Court held that a group of prefabricated, re-locatable sheds that had been placed on land were structures and therefore buildings within the meaning of the Act. See also Jambrecina v Blacktown City Council [2009] NSWCA 228, where the NSW Court of Appeal, placing significant reliance on amenity impacts, also held that the placement of four sheds on land involved the erection of structures and was therefore development. In North Sydney Council v Gilmour [2009] NSWLEC 93, Pain Jin the Land and Environment Court held that a hoarding fence enclosing waterfront public land causing its alienation from public use was a temporary structure and therefore a building within the meaning of the Act requiring development consent under the applicable EPI.

Subdivision [5.130] Regulation of subdivision in New South Wales was first introduced in the Local

Government Act 1919 (Part XII - somewhat erroneously titled "Town Planning"), well before the introduction of planning and development control in 1945. Part XII was integrated into the EPA Act by the Environmental Planning and Assessment Amendment Act 1997 from 1 July 1998.

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Subdivision of land is defined in section 4B of the EPA Act to be the division of land into two or more parts that are obviously adapted for separate use, occupation or disposition by various means including through the registration of a plan of subdivision within the meaning of the Conveyancing Act 1919. By operation of section 4B(3)(e)(i) and section 195 of the Conveyancing Act 1919, the subdivision of land does not include

the consolidation of land where the consolidation merely involves the consolidation of two or more existing lots into a single lot, where there is no simultaneous redivision of them into two or more lots. In Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246, Sugerman J said: The approval of a subdivision into lots ... is in law the approval of a subdivision simpliciter and not its approval with any condition or for any particular purpose such as shops or dwellings, etc. The question what sort of building may be erected upon the respective blocks is one which in strictness arises for decision later when it is sought to build on them and one which will be affected by circumstances as they then exist, by various considerations including the size of the lots, and by other matters which may have occurred in the meantime, such, for instance, as the proclamation of the area as a residential area. It could happen that land once subdivided might afterwards be struck with sterility in the hands of owners of the blocks; for instance if there had been a subdivision into lots of a size suitable only for the erection of shops in a position in'which subsequent events showed, or had the result, that it would not be profitable or permissible to erect shops. In Broker Pty Ltd v Shoalhaven City Council (2008) 164 LGERA 161; [2008] NSWCA 311, the NSW Court of Appeal held that the remarks of Sugerman J remain applicable to the present definition of subdivision of land. See also Wehbe v Pittwater Council [2007] NSWLEC 827.

[5.170)

ch apter 5 Development

LGRA 270). Whether or not land clearing or land filling amount to a work will depend on whether or not the changes brought about are substantial (Kiama Municipal Council v French (1984) 54 LGRA 42; Warringah Shire Council v May). In Kiama Municipal Council v French, it was held that dumping fill on land, which had the effect of raising it by no more than 10 cm in order to improve the quality of vegetation for grazing, did not amount to a work. Instead it was a use of the land - cultivating fodder. Pesticide spraying is neither a work nor a use of land (Rundle v Tweed Shire Council (1989) 68 LGRA 308). A sediment pond to serve a 17-lot subdivision was a work, not a building (Williams v Blue Mountains City Council [2001] NSWLEC 73).

Matters covered by section 26 [5.160] The matters referred to in section 26 of the Act include:

• protecting, improving or utilising the environment • controlling development • protecting and conserving native animals and plants • protecting or preserving trees or vegetation • controlling advertising.

If such matters are controlled by an EPI, they will amount to development. For example, in Dames and Moore Pty Ltd v Byron Council [2000] NSWLEC 46 and Cameron v Lake Macquarie City Council [2000] NSWLEC 34, it was held that conduct contrary to a tree preservation order made by the council was development that required consent because it was conduct controlled by an EPI.

Subdivision work

Purposes of the development

[5.140] Subdivision may involve subdivision work. Subdivision work is defined to mean any

[5.170] It has been held that "[i]n planning law, use must be for a purpose" as the purpose is

physical activity authorised to be carried out under the conditions of a development consent as referred to in section 81A(3) (EPA Act, s 4(1)). It includes the construction of roads and stormwater drainage systems (s 85(4)).

"the end to which land is seen to serve" and "describes the character which is imparted to the land at which the use is pursued": per Preston] in Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114 at [27] referring to Shire of Perth v O'Keefe (1964) 110 CLR 529; [1964] HCA 37; Minister Administering Crown Lands Act v New South Wales Aboriginal Land Council (No 2) (1993) 80 LGERA 173. However, the nature of a use must be distinguished from the purpose of the use. Uses of different natures could still be seen to serve the same purpose. See Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; Warringah Shire Council v Raffles (1978) 38 LGRA 306.

What is "the carrying out of a work"? [5.150] The expression "the carrying out of a work" is not defined in section 4(1) of the EPA Act. However, section 4(2)(c) provides that a reference to the carrying out of a work includes a reference to the rebuilding of, the making of alterations to, or the enlargement or extension of, a work, or enclosing a public place in connection with the carrying out of a work.

It seems that the concept of a work is "intended to refer to something done to the land itself' (Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 at 24; Warringah Shire Council v May (1979) 38 LGRA 424). In Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 185 Biscoe Jin the Land and Environment Court held that that fencing and signposting a public exclusion area associated with a rifle range constituted the carrying out of work and was therefore development. However, questions of degree are involved (see Parramatta City Council v Shell Company of Australia Ltd (1972) 26 LGRA 25). Activities associated with "the ordinary and normal pursuit of an existing land use" do not amount to the carrying out of a work (CB Investments Pty Ltd v Colo Shire Council (1980) 41

Whether or not development is permissible with consent depends on its purpose. Zoning tables indicate which purposes of development are permissible with consent, which do not require consent and which are prohibited. The result is that the courts often have to deal with difficult questions of how the purpose of development should be classified. The current state of the law is that the question of whether development is permissible or prohibited by an EPI is a fact, which the court must determine for itself (Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; Chambers v McLean Shire Council [2003] NSWCA 100; Issa v Burwood Council [2005] NSWCA 38). Previously, the courts had held that this was a matter of opinion for the consent authority (frequently a local council) acting reasonably, and did not intervene in such decisions unless they were unreasonable (Londish v Knox Grammar School (1997) 97 LGERA 1).

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Problems with classifying development [5.180] Problems arise in relation to classification for a number of reasons, as outlined below.

[5.230]

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LGRA 151; Egan v Hawkesbury City Council (1993) 79 LGERA 321; Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council [2000] NSWLEC 243; RCM Constructions v Ryde City Council [2004] NSWLEC 266).

While one of the aims of adopting the Standard LEP was to minimise problems of classification by utilising standard definitions, difficulties have not been fully eliminated. For an explanation of the methodology employed by the Department of Planning for categorising land use and other definitions under the standard LEP, see: LEP Practice Note PN 11-003 - Preparing LEPs using the Standard Instrument, at: http://www.planning.nsw.gov.a u/-/media/F iles/D PE/Practice-notes/ preparing-leps-using-the-standard-instrument-definitions-2011-03-10 .ashx.

The development considered in Friends of Pryor Park Inc v Ryde Council [1995] NSWLEC 160 fell within the definition of community facilities (a permissible use) as well as the definition of child care centre (a prohibited use). Bignold J found that a child care centre is a species of the genus community facilities and that the prohibition of that use did not affect the permissibility of the proposed development under the terms of the LEP.

Terms and definitions

Dual-purpose developments

[5.190] The purpose of development is usually spelt out in land use tables in terms of things like dwelling houses or caravan parks. The things are often defined in the definition section of the EPI, or in any model provisions (see [3.130]) that have been incorporated. Usually the definitions are expressed in terms of purpose, and employ phrases such as "used for the purpose of' or "used for" or "used as". But sometimes they are framed in terms of the design or structure of a building (eg, "a building designed for use as a dwelling for a single family").

Sometimes particular purposes are defined differently in different EPis. This is especially true of deemed EPis (see [3.40]) which often contain their own set of definitions. There are, for example, a number of different definitions of dwelling house. One of the primary purposes of the Standard LEP was to deal with this state of affairs by standardising definitions of development purposes. These definitions have to be adopted in new LEPs made in accordance with the Standard LEP template (cl 1.4; Act, s 33A(3)). Clause 2.3(3)(a) of the Standard LEP provides that a reference in the Land Use Table to a type of building or other thing is a reference to development for the purposes of that type of building or other thing.

References to other legislation [5.200] In some cases, the definition in the EPI requires recourse to other legislation to ascertain

the meaning of a term. For example, the Standard LEP defines forestry as having the same meaning as forestry operations in Part 5A of the Forestry Act 2012, and moveable dwelling as having the same meaning as in the Local Government Act 1993, and registered club means a club that holds a club licence under the Liquor Act 2007. In other cases, reference to other legislation in EPI definitions requires the courts to determine whether a particular proposal complies with other legislative requirements. For example, the Standard LEP defines mining as being mining carried out under the Mining Act 1992 or the recovery of minerals under the Offshore Minerals Act 1999. In older EPis refreshment rooms are defined as an activity for which a lease or licence can be granted under the National Parks and Wildlife Act 1974 (see Woollahra Municipal Council v Minister for Environment (1991) 73 LGRA 379; Willoughby City Council v Minister Administering the National Parks and Wildlife Act (1992) 78 LGERA 19; Friends of Pryor Park Incorporated v Ryde City Council (1995) 89 LGERA226).

Is a use specifically prohibited? [5.21 0] Another problem can arise if a type of use is specified as permissible, but a specific use is prohibited (see Ashfield Municipal Council v Australian College of Physical Education (1992) 76

[5.220] Other problems arise when a development may be viewed as having more than one purpose. Consider, for example, a zone where development for the purposes of agriculture is permissible with consent, but use for the purposes of an extractive industry is prohibited. What if a farmer wishes to remove a mound of gravel deposited by a river? Removal will make the land available for agricultural purposes, but will also provide the farmer with income, because the gravel can be sold. Is the purpose of the development the carrying out of agriculture or the winning of extractive material?

In such situations, the courts are wary of deciding primarily on the basis of the intentions of the developer, because some degree of objectivity must be maintained. Impact on the environment is important, but is usually considered later, when deciding whether or not consent should be given, not at the earlier stage of classification.

Ancillary use - dominant or independent purposes [5.230] The courts do not consider that a development should be prevented simply because one of its purposes is prohibited. The central issue is whether one of the purposes is subordinate to a dominant purpose and therefore not an independent land use. If it is, it can be disregarded, and the development characterised by the nature of the dominant purpose (Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157). For example, in Chamwell Pty Ltd v Strathfield Council [2007) NSWLEC 114, Preston J in the Land and Environment Court considered the proper characterisation of the use of a carpark, driveways, access ways and landscaped forecourt that served a supermarket development. His Honour held that the activities of the retail customers on the ground floor and the basement carparking levels in the development were so commingled in time, place and circumstances with the actual exercise or carrying on of the retail uses of a supermarket that in a practical sense one could not conceive of the one being carried on without the other. Such uses were subordinate to the purpose of the supermarket as they were not by reason of their character, extent and other features capable of being independent. Similarly, in Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, the drive-in aspect of a large takeaway liquor store was held to be ancillary to the use of the premises for a conventional bottle shop. Accordingly, the store was not a drive-in takeaway establishment. However, in Warringah Council v Swain [2010] NSWLEC 68, the Land and Environment Court held that the long-term storage of a commercial fishing vessel in the front yard of residential premises was not ancillary to the use of the land for residential purposes and was therefore a separate land use for planning purposes.

If the purposes are independent, they must be characterised and considered as separate land uses. If one purpose is permissible and one is prohibited, the development will be prohibited (CB

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Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270; Liauw v Gosford City Council [2004] NSWLEC 72). An ancillary use can be an independent use: Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404. In Health Administration Corp v Ryde City Council (2005) NSWLEC 507, for example, Pain Jin the Land and Environment Court held that an ambulance station proposed to be located on land within the same zone as, and near to, a hospital but which would operate separately from the hospital and service a wide range of facilities over a large area, including but not limited to the hospital, was ordinarily an ancillary use to the hospital. However, it was an independent use for the purposes of characterising the development. A minor use cannot be ignored simply because it is minor (Steedman v Baulkham Hills Shire Council (No 2) (1993) 80 LGERA 323. The independent purpose test really does little more than beg the question, and there does not seem to be much predictability or principle in this area. Each case depends on the particular facts and the views of individual judges, which are frequently not spelt out. In some cases, two ostensibly separate land uses might not be independent of one another. For example, in Macquarie International Health Clinic Pty Ltd v University of Sydney (1998) 98 LGERA 218, the NSW Court of Appeal considered a situation where the respondent had sought development consent for the construction of a private teaching hospital partly on land zoned Education and partly on land zoned Hospital. The relevant council refused the application on the basis that it had no power to approve a proposal which straddled two zones, in one of which the alternative or secondary or ancillary uses were prohibited. The Court held that the proposal involved two purposes which were inextricably bound up so as to be properly categorised as a teaching hospital. They were not two independent uses of an educational institution and a hospital.

Policy questions [5.240] One basic policy issue is whether land use tables should make distinctions between broadly similar types of development. An EPI should prohibit development for the purpose of

hazardous industry in a residential zone, but does it make sense to prohibit development for the purpose of a boarding house or hostel in a zone where other forms of residential development are allowed? (See Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 39 LGRA 150; Lorna Hodgkinson Sunshine Home v Lane Cove Municipal Council (1979) 38 LGRA 282.) Should not decisions in such cases be made on a case-by case-basis, taking into account the particular circumstances? This is increasingly the case as the State government pursues more flexible approaches to environmental planning as most recently evidenced by the adoption of the Standard Instrument LEP.

Overriding land use tables [5.250] Even where the purpose of a development has been properly classified, and it appears from the land use tables that the development is permissible if consent is obtained, that is by no means the end of the matter. The land use tables may be overridden by other provisions in the EPI. The EPI may identify the development proposed as an exempt development, in which case development consent is not required (see [5.290]). An EPI such as State Environmental Planning

[5.290]

chapter 5 Development

Policy (Exempt and Complying Development Codes) 2008 (see [3.420]) or State Environmental Planning Policy (Infrastructure) 2007 (see [3.4 70]) may apply, having the effect that the development does not need consent. This illustrates the vital importance of a full reading of all EPis that affect the land in question. A quick glance at the land use tables may give a completely misleading impression.

Is development excluded from an EPI? [5.260] Some schedules to EPis (eg, Schedule 1 to the Standard LEP or the Schedule in the Environmental Planning and Assessment Model Provisions 1980), as well as State Environmental Planning Policy (Infrastructure) 2007 (see [3.470]), specify development that is excluded from the land use restrictions in the EPI, including those imposed by the land use tables. This includes development carri~d out by public utilities supplying water, gas and electricity, sewerage services, and transport. This means that the specified development will not require development consent. Even if the development is prohibited under the zoning provisions, the prohibition will have no effect. See, for example, Sydney Catchment Authority v Bailey (No 2) [2007] NSWLEC 191.

Legal classification of development [5.270] In broad terms, the EPA Act establishes a three-fold classification of development (Part 4, Division 1):

• development that does not need development consent - that is, development that may be carried out in accordance with the relevant EPI (s 76(1)) • development that needs consent - that is, development that must not be carried out unless a consent has been obtained and is in force, and is carried out in accordance with the consent and the EPI (s 76A(l))

• development that is prohibited by the EPI or cannot be carried out on land with or without development consent under the EPI (s 76B).

Development permitted without consent [5.280] There are two types of development that do not need consent under Part 4 of the EPA Act - general development without consent and exempt development.

1. Exempt development [5.290] Exempt development is development having minimal environmental impact, specified in an EPI (s 76(2)). Exempt development may be carried out in accordance with the EPI without consent, except on land that is critical habitat or is part of a wilderness area within the meaning of the Wilderness Act 1987. The environmental assessment provisions of Part 5 of the EPA Act (see Chapter 6) do not apply to exempt development (s 76(3)).

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("the Codes SEPP") lists certain kinds of exempt development. Clause 3.1 and Schedule 2 of the

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Standard LEP also provide for exempt development. An LEP that contains exempt development provisions is overridden by the Codes SEPP (ell 1.9(1) and 1.9(2)); however where an LEP specifies additional (ie a wider scope of) exempt development its operation is not affected by the SEPP (cl 1.9(9)). The Code SEPP seeks the progressive extension of exempt (and complying) development (cl 1.3). Embedded in the SEPP are exempt (and complying) development codes that have State-wide application. Exempt development codes contained in the SEPP are:

•

General Exempt Development Code Advertising and Signage Exempt Development Code Temporary Uses and Structures Exempt Development Code.

In addition to these provisions, exempt development must still meet certain requirements or standards under the Building Code of Australia (Codes SEPP, cl 1.16).

2. General development without consent [5.300] Development that does not need development consent is not necessarily exempt development. If it is not exempt development, approvals under other legislation may still be required, and so Part 5 of the EPA Act may apply (see Chapter 6) .

Development permitted only with consent [5.310] Development permitted only with consent may be either complying development or general development requiring consent (through lodgement of a development application, usually with a local council as the consent authority) . Development requiring a development application may be further categorised as State significant development, designated development, advertised development or integrated development. The development application process is examined at length in [5.330]; the various categories or types of development requiring consent are considered briefly here.

Complying development [5.320] An EPI may identify development, or a class of development, that can be addressed by specified predetermined development standards as complying development (s 76A(5)). The primary EPI that identifies complying development is State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

Certain development cannot be identified as complying development, for example, if it is on land that is critical habitat or that is identified in an EPI as an environmentally sensitive area, or on land where there is a protected item of environmental heritage (Codes SEPP, cl 1.17A). Clause 3.2 and Schedule 3 of the Standard Instrument make provision for complying development. As was the case with exempt development, an LEP that contains complying development provisions is overridden by the Codes SEPP (cl 1.9(1)); however where an LEP specifies additional (ie a wider scope of) complying development its operation is not affected by the SEPP (cl 1.9(9)). Such development must be permissible in the relevant zone and must meet certain requirements or standards under the Building Code of Australia.

[5.340)

chapter 5 Development

Complying development is discussed further in [5.610].

Designated development [5.330] Designated development is development which requires consent that is declared to be designated development by an EPI or the regulations (s 77 A).

An environmental impact statement must accompany an application in respect of designated development (see [5.680]). In Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323, the NSW Court of Appeal held that an application was "in respect of' designated development where a "not insignificant part" of the development could be so categorised. Objectors have a right of third-party appeal (see (2.350]) to the Land and Environment Court if the consent authority grants consent, unless the application is determined by the consent authority after a public hearing held by the Planning Assessment Commission (s 98(5)) (see [5.2290]).

What development is designated development? [5.340] Clause 4(1) of the Environmental Planning and Assessment Regulation 2000 provides

that development described in Part 1 of Schedule 3 is designated development for the purposes of the Act unless it is excluded by a provision of Part 2 or 3 of that Schedule. Development is also sometimes identified as designated development in SEPPs (eg, SEPPs 14 and 26: see (14.370] and [14.430]). It is rarely designated in LEPs. A direction issued under section 117(2) of the Act on local plan making states that a planning proposal must not designate development unless it is likely to have a significant impact on the environment. The list of designated development contained in Schedule 3 of the Regulation covers development such as heavy industry with high pollution potential and other development capable of producing significant environmental impacts such as:

• livestock intensive industries (eg, feedlots and piggeries) • extractive industries • coal and many other mining operations • marinas with facilities for more than a certain number of vessels • aircraft facilities.

Most of the definitions are based on the size of the development and/or its proximity to environmentally sensitive areas, such as watercourses. The common element is the potential risk the activities listed pose to the environment, and the concern they arouse among nearby residents (Penrith City Council v Waste Management Authority (1990) 71 LGRA 376 at 381). However, depending on the capital investment value and intensity of the development, it may be declared to be State significant development (see [5.2700]) and it then ceases to be designated development (s 77A(2)). In Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323, the NSW Court of Appeal held that once it was determined or conceded that at least part of the subject development fell within one of the categories listed within Part 1 of Schedule 3 to the Regulation, then that part was designated development. The Court held that it

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would be contrary to the intent of the legislation to hold that an activity which fell within one of the categories listed in Part 1 of Schedule 3 should necessarily lose that character because it only formed part of a greater development or was not the main purpose of the development in respect of which the application has been made. However, this decision needs to be read in the light of clause 37A of Schedule 3, which was subsequently added in 2007. This provides that development of a kind specified in Part 1 is not designated development if it is ancillary to other development and it is not proposed to be carried out independently of that other development. Clause 35 of Schedule 3 to the Regulation provides that development involving alterations or additions to development (whether existing or approved) is not designated development if, in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development (that is the development together with the additions or alterations) compared with the existing or approved development. Clause 36 sets out matters that the consent authority is to consider in forming its opinion under clause 35. See Bora/ Resources (Country) Pty Ltd v Clarence Valley Council [2009] NSWLEC 81.

[5.400]

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• Protection of the Environment Operations Act 1997 (ss 43(a), (6), (d); 47, 48, 55, 122: environment protection licence) (see [9.670]) • Roads Act 1993 (s 138) • Rural Fires Act 1997 (s lOOB) • Water Management Act 2000 (ss 89, 90, 91) (see [14.1150]). When a development application is made for integrated development and the application indicates on its face that an approval is required, the consent authority must forward a copy of the application to the authority required to give that approval under the other legislation (the approval body) within 14 days after receiving the application (Environmental Planning and Assessment Regulation 2000, cl 66(2)). The approval body may request additional information from the consent authority, which may in turn request that information from the applicant (cl 67).

Electing to have development dealt with as integrated development

State significant development and infrastructure [5.350] Legislation enacted in 2011 to repeal Part 3A of the EPA Act came into operation on

1 October 2011. New special procedures were introduced to deal with development and infrastructure classified as State significant. These are discussed in detail at [5.2690]-[5.2780] of this chapter. See also Chapter 3 ([3.460]).

[5.380] There is a question whether an applicant can elect whether or not development should

be treated as integrated development. The courts have made apparently conflicting decisions on this matter (see Maule v Liporoni [2002] NSWLEC 25; Motbey v Hollis [2003] NSWLEC 40; Azzopardi v Gosford City Council [2002] NSWCA 234; Gunning Sustainable Development Association Inc v Upper Lachlan Council [2005] NSWLEC 23 ).

Decision-making by the approval body

Advertised development [5.360] Advertised development is discussed at [5.1040]. It is development requmng development consent that is specified in the regulations, an EPI or a development control plan. It

also includes any development for the purposes of a scheduled activity under the Protection of the Environment Operations Act 1997 (see [9.670]) that is not designated development or State significant development. Particular public notification requirements apply to development applications for advertised development.

Integrated development [5.370] Provisions relating to integrated development were introduced by the EPA Act with the intention of streamlining the development assessment process. Integrated development is development that requires development consent, other than State significant development, and also requires at least one approval, permit, licence, authority or consent under any of the following legislation (EPA Act, s 91):

• Fisheries Management Act 1994 (ss 144,201,205,219) (see [19.20]) • Heritage Act 1977 (s 58) (see [17.310]) • Mine Subsidence Compensation Act 1961 (s 15) (see [18.710]) • Mining Act 1992 (ss 63, 64: mining lease) (see [18.180]) • National Parks and Wildlife Act 1974 (s 90: Aboriginal impact permit) (see [20. 730]) • Petroleum (Onshore) Act 1991 (s 9: production lease) (see [18.1090])

[5.390] If an approval body proposes to grant any approval, it must inform the consent

authority of the general terms of that approval within 40 days of receiving the application. If the development application requires public notification (see [5.1100]), that period is extended to 21 days after the approval body receives copies of any submissions made to the consent authority or is told that there are no submissions (ss 91A(2), 92(2); cl 70(1)).

If information has been requested from the applicant, the time limit can be extended (see cl 109). Furthermore, a consent authority can have regard to an approval body's general terms of approval even if they are provided after the expiry of the relevant period (cl 70(3)). If the approval body informs the consent authority that it will not grant approval, development consent must be refused (s 91A(4)). If the approval body fails to inform the consent authority or Minister whether or not it will grant approval, or what the general terms of the approval are, the consent authority or Minister may determine the development application. In this situation, the approval body must give its approval to the proposal in terms consistent with the development consent (s 91A(5)). The applicant has three years from the date of the granting of the development consent to seek approval from the approval body (s 93).

Appeals [5.400] On appeal, the Land and Environment Court is not bound to refuse an application for development consent because an approval body has decided not to gra:-it its approval or has failed to inform the consent authority whether or not it will grant its approval. The court may also grant a development consent that is inconsistent with the general terms of approval of an approval body (Land and Environment Court Act 1979, s 39(6A)).

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Nonconforming uses [5.410] Nonconforming use provisions, protecting previous uses of land against new regulatory initiatives, are discussed in general terms in Chapter 1. Part 4, Division 10 of the EPA Act contains detailed provisions in relation to existing and continuing uses; these place significant qualifications on the system of environmental planning control. They not only protect lawful uses current at the time a new EPI is made but allow for modifications to be carried out, provided that development consent is first obtained. The rationale for existing use rights and the provisions giving effect to them is that it is unjust to deprive an owner of the right to use land for an existing purpose (Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305; see [5.420] below).

In interpreting these provisions, the courts have to balance demands for the protection of private property against the public interest in a well-planned environment. The general approach has been to favour private property interests (North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 67 LGRA 344; RCM Constructions Pty Ltd & Maycot Pty Ltd v Ryde City Council [2004] NSWLEC 266). This is despite the fact that the version of nonconforming use protection introduced by the EPA Act in 1979, and in subsequent amendments, suggests that the underlying objective of the legislature has been to "squeeze out" nonconforming uses in the public interest (Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 73 LGRA 366). The Court of Appeal has commented that existing use rights are more a privilege than a right (Vanmeld Pty Ltd v Fairfield City Council (1992) 75 LGRA 374). One significant difficulty for those who want to rely on existing use rights is that the burden of proof lies on them (Fatsel Pty Ltd v ACR Trading Pty Ltd (No 3) (1987) 64 LGRA 177; Warringah Shire Council v Sedevic (1987) 63 LGRA 361; Penrith Waste Services Pty Ltd v Penrith City Council (1998) 101 LGERA 98; Auburn Council v Nehme (1999) 106 LGERA 19).

Existing uses [5.420] What happens when a new EPI completely prohibits certain development, but land is currently being used for those purposes? The Act attempts to compromise between the legitimate expectations of the occupants and the public interest in implementing the objectives of the new EPI. If the new EPI allows the site to be used for purposes that increase its market value, there is an incentive for the occupant to give up the current use. But where the site is zoned for purposes that reduce the market value of the land, the current use is more likely to continue. The question is, how far should the law go in bringing pressure on the current use in order to ultimately achieve the objectives of the EPI?

Section 106 of the EPA Act defines an existing use as: (a)

a use of a building, work or land for a lawful purpose immediately before the EPI that prohibits that use came into force, or

(b)

use of a building, work or land: (a)

for which development consent was granted before the commencement of the provision of the EPI that prohibits the use, or

(b)

that has been carried out, within one year after the date on which the provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse (see [5.2440]) .

[5.420)

chapter 5 Development

Section 107(1) provides that nothing in the Act or an EPI prevents the continuance of an existing use, but section 107(2) provides that this does not authorise:

•

any alteration or rebuilding to or rebuilding of a building or work, or

• any increase in the area of the use made of a building, work or land from the area actually • • •

physically and lawfully used immediately before the coming into operation of the EPI, or any enlargement or expansion or intensification of the use, or the continuance of the use in breach of any consent in force under the Act, or the continuance of the use therein mentioned where that use is abandoned.

Intensification of use may include such changes as an increase in production, or the rate of extraction of materials in an extractive industry (see Shoalhaven City Council v South Coast Concrete Crushing & Recycling Pty Ltd [2009] NSWLEC 197), or an increase in the hours of operation of a business (South Sydney City Council v Houlakis (1996) 92 LGERA 401) . It is well-established that section 106 is not concerned with the identity of the user but rather with the nature of the use of land: Greengate Consulting (NSW) Pty Ltd t/as Greengate Property Group v Ashfield Municipal Council [2008] NSWLEC 253; see also House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; Moslem Alawy Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79; Daniel v Manly Municipal Council (1975) 34 LGRA 14; PD Mayoh Pty Ltd v Burwood Municipal Council (unreported, Land and Environment Court, NSW, Bignold J, No 40275 of 1989, 11 February 1991); Dosan Pty Ltd v Rockdale City Council [2001] NSWLEC 252; Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59. In Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23, Biscoe J in the Land and Environment Court re-affirmed that the existing use provisions in the Act are designed to permit continuation of a use of land for the purpose for which it was used immediately before a later regulation that prohibited it wholly or partly or upon conditions. His Honour noted that the rationale is that it is unjust to deprive an owner of the right to use land for an existing purpose and, therefore, the existing use provisions should be as liberally construed as the language in its context allows. See also Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305; Grace v Thomas Street Cafe Pty Ltd (2007) 159 LGERA 57; [2007] NSWCA 359; Shire of Perth v O'Keefe (1964) 110 CLR 529; [1964] HCA 37; Dorrestijn v SA Planning Commission (1984) 59 ALJR 105; 54 LGRA 99. The definition in section 106(a) needs to be carefully applied to the facts of each case. In Keay v Wollongong City Council [2008] NSWLEC 243, Jagot J in the Land and Environment Court held that section 106 did not apply where a special provision in the applicable EPI prohibited the erection of a replacement dwelling-house on the relevant land but did not in terms prohibit the continuance of the use of the existing dwelling-house on the land. It has been held that an existing use only exists during the period when an EPI has the effect of prohibiting the use. If a use was prohibited under an EPI which is now no longer in force, and the current EPI makes it permissible with consent, then it is no longer an existing use (See BYT Nominees Pty Ltd v North Sydney Council [2008] NSWLEC 164; Dosan Pty Ltd v Rockdale City Council [2001] NSWLEC 252).

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[5.430)

Description of the existing use [5.430] The courts are concerned not to describe an existing use so broadly that the land or premises can be used for a purpose that was not part of its use when the prohibition commenced. The purpose of an existing use is therefore usually described broadly enough to cover the activities that were lawfully carried on at the relevant date, but not so broadly as to permit other activities: Grace v Thomas Street Cafe Pty Ltd (2007) 159 LGERA 57; [2007] NSWCA 359. In some cases it has been held that the use is construed broadly, at a general level rather than a specific one (eg, a community facility rather than a childcare centre) (Ashfield Municipal Council v Armstrong [2002] NSWCA 269; Shire of Perth v O'Keefe (1964) 110 CLR 529; [1964] HCA 37; Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305; House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 67 LGRA 344). It follows that where material is being extracted or mined as an existing use, the ultimate purpose to which the material won through extraction or mining is put is irrelevant (Shoalhaven City Council v South Coast Concrete Crushing & Recycling Pty Ltd [2009] NSWLEC 197 per Lloyd J). Where the lawful use is described by a development consent, the existing use is described by the terms and conditions of the development consent (House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; Meriton Apartments Pty Ltd v Fairfield Council [2004] NSWLEC 423; Brinara Pty Ltd v Gosford City Council [2010] NSWLEC 25). In Botany Bay City Council v Parangool Pty Ltd [2009] NSWLEC 198, this led Lloyd J to find that a development consent for development described as "use of existing warehouse building for the warehousing/storage and distribution of alcoholic goods" could only give rise to existing use rights limited to warehousing/storage and distribution of alcoholic goods and not the broader genus of warehousing and distribution of goods generally.

Use for o lawful purpose

[5.470]

chapter 5 Development

"abandoned" (s 107(2)(e)). The onus of proof lies with those alleging abandonment (King v Lewis (1995) 88 LGERA 183; Meriton Apartments Pty Ltd v Fairfield Council [2004] NSWLEC 423). The existing use is presumed to be abandoned if it ceases for a continuous period of 12 months (s 107(3 ). However the statutory presumption is rebuttable by proof to the contrary. In this regard, continuation of the existing use, even in a minor way, may be sufficient. For example, in MeritonApartments Pty Ltd v Fairfield Council [2004] NSWLEC 423, the predominant use of a caravan park for long-term residents when the lawful existing use was for short-term visitors did not mean abandonment of the existing use.

If the physical use of the land for the purposes of the existing use is interrupted, it does not necessarily mean that there has been abandonment. Where physical use has ceased, the courts will examine the actual intentions of the occupant. However, while a subjective intention to continue an existing use is a relevant factor, it is not by itself sufficient to rebut the presumption of abandonment. In Hudak v Waverley Municipal Council (1990) 70 LGRA 130, for example, premises had lawfully been used as a residential flat building after which time the premises were left unoccupied and allowed to deteriorate for a number of years. The owner of the premises claimed that it was his intention to restore the premises to a habitable state and have them occupied again after certain other problems, including personal problems, were resolved. The Court of Appeal held (at 137-138) that " ... [if] years go by without actual use and particularly where the factor said to be delaying a resumption of the existing use is something of an indefinite character ... there would be little difficulty in concluding that the cessation of use for a similar period of time involved an abandonment". In Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138; [1973] HCA 65, the High Court held that the making of a development application to change an existing use does not indicate an intention to abandon the existing use if the evidence shows that the intention of the applicant was to continue the existing use should the development application be refused. See also Woollahra Municipal Council v TAJ] Investments Pty Ltd (1982) 49 LGRA 123; Dosan Pty Ltd v Rockdale City Council [2001] NSWLEC 252.

[5.440] Section 106(a) of the EPA Act defines an existing use to be "the use of a building, work or land for a lawful purpose". For a use to be for a lawful purpose, the use need not have been lawful under the general law as long as it was not prohibited by planning law (Sydney City Council v Ke-Su Investments Pty Ltd (No 2) (1983) 51 LGRA 186; Durable Building Products Pty Ltd v Sutherland Shire Council [2000] NSWLEC 233; Steedman v Baulkham Hills Shire Council (No 2) (1993) 80 LGERA 323; Meriton Apartments Pty Ltd v Fairfield Council [2004] NSWLEC 423).

In Caltex Australia Petroleum Pty Ltd v Manly Council (No 2) [2007] NSWLEC 350, Pain J held that abandonment had been established in circumstances where the applicant had taken action which prevented the resumption by it or anyone else of the existing use without a further development consent being obtained and it had sought to sell the subject property for a use other than the existing use.

A use would be unlawful if, at the time it commenced, the use was permissible with consent but consent was not obtained (Hastings Municipal Council v Mineral Deposits Ltd (1981) 43 LGRA 198; Steedman v Baulkham Hills Shire Council (No 2) (1993) 80 LGERA 323).

Changing on existing use

Some uses will be lawful because they commenced before there was any relevant planning regime in place.

[5.460] The EPA Act allows that regulations may make provisions for existing use, including the carrying out of alterations and extensions; change from an existing use to another use; and enlargement, expansion or intensification (s 108).

Modifying the existing use

Abandonment [5.450] The Act provides that an existing use can be continued in spite of the fact that it is prohibited by an EPI (s 107(1)). However, the existing use right is lost forever if it is

[5.470] Provided that development consent is first obtained, an existing use may be modified on the existing site (Regulation, cll 41- 44). It can be:

• enlarged, expanded or intensified, or

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•

[5.480]

altered or extended, or

• rebuilt.

There is no limitation on the size, extent, scale or degree of the change for which consent may be granted (Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council [2000] NSWLEC 243; Mona Vale Pty Ltd v Pittwater Council [2003] NSWLEC 74 ). For example, in Mona Vale Pty Ltd v Pittwater Council [2003] NSWLEC 74, the Land and Environment Court held that rebuilding allowed the replacement of an existing structure with a new structure not limited by considerations of degree, size, character or design. The Land and Environment Court has published a planning principle setting out considerations that may be relevant to the assessment of development applications involving changes to an existing use (see Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71; Stromness Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 587).

Changing an existing use to another use [5.480] The Regulation provides that an existing use may be changed to another use, provided that the other use is not prohibited and consent is obtained (cll 41(l)(d), 45).

In two situations, development consent can even be sought to change the use to one that is prohibited (cll 41(1)(e), 41(1)(f)):

[5.510]

chapter 5 Development

because neither demolition nor subdivision involve the use of land for the purposes of EPA Act section 106. See also Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350; [1974] HCA 34; Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246. In considering whether development consent is required for a change of use, the impact of the proposed new use may be relevant: North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 67 LGRA 344. In Grace v Thomas Street Cafe Pty Ltd (2007) 159 LGERA 57; [2007] NSWCA 359, the Court of Appeal held that use of a premises for a milk bar could not be changed to a use for a cafe. In coming to this conclusion, the Court considered that the cafe had a much greater impact on the neighbourhood with respect to noise, traffic and parking.

Seeking consent [5.490] There are no specific limits placed on the discretion to be exercised in determining whether consent should be given, other than those that apply to all Part 4 consents (see [5.1180)-(5.1230)) (Ashfield Municipal Council v Armstrong [2002] NSWCA 269; Mona Vale Pty Ltd v Pittwater Council [2003] NSWLEC 74).

It is possible to apply for development consent and still intend to continue the existing use of the premises if the application is refused (see [5.1500)).

• changing one commercial use (office, business or retail) to another • changing one light industrial use to another, or to a commercial use.

If consent is granted, the surrender of an existing use can be made a condition of development consent (s 80A(l)(b)).

However, these exceptions to the general position that consent cannot be sought for a prohibited use are very restricted. For example, any alterations must be minor and there must not be an increase of more than 10% in the floor space of the premises associated with the existing use (cl 41(2)). A change in use must also comply with any development standards in applicable EPis (Iris Diversified Property Pty Ltd v Randwick City Council [2010] NSWLEC 58).

Area of on existing use

What constitutes a change to the existing use for these purposes? For example, can an existing use change through an evolution of the use over time, avoiding any need to obtain development consent? In Shire of Perth v O'Keefe (1964) 110 CLR 529; [1964] HCA 37, the High Court indicated that where the proper characterisation of an existing use is, for example, "professional offices", a change in the profession practised by the person occupying them would not amount to a change of use, but the situation would be different in the case of a shop: that is, a proposal to turn a greengrocers into a butcher's shop would probably amount to a change of use. In Brinara Pty Ltd v Gosford City Council [2010] NSWLEC 25, Pain Jin the Land and Environment Court dealt with a development described in the development consent as commercial premises involving several different specific uses identified in the approved plans. Her Honour held that the proper characterisation of the existing use was commercial premises and a development consent authorising the change of a specific use covered by the approved plans did not amount to a change from one commercial use to another commercial use. As a result, the restrictions on changing one commercial use to another prohibited commercial use (cl 41(l)(e): see above) did not apply. In Wehbe v Pittwater Council [2007] NSWLEC 827, Preston J held that a development application for demolition of buildings or works and subdivision of land could not be characterised as seeking consent to change an existing use of the land to another use of the land

[5.500] The existing use provisions of the Act apply only to that area "actual~y phy~ically a~d lawfully used" immediately before the new plan was made. They do not authorise an mcrease m the area of the use made of a building, work or land (s 107(2)(6)).

Similarly, the provisions discussed above, which allow changes to existing uses with development consent, are limited to changes carried out on the land on which the existing use was carried out or the building or work erected (cll 42(2)(6), 43(2)(6), 44(2)(6)). Before these provisions were inserted into the EPA Act, two cases were authority for the position that, in certain circumstances, an existing use could extend to parts of the land not physically being used for that purpose. See Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1; [1972] HCA 21 and Eaton and Sons Pty Ltd v Warringah Shire Council (1972) 1_29 CLR 270; [1972) HCA 33. If, for example, land had been acquired with a view to gradually usmg it for a particular purpose, such as mining, the whole area could be held to have been used for that purpose, even though the physical use only extended to part of it. Everything depended on the facts of the particular case. However, the Court of Appeal, in Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 73 LGRA 366, held that those cases no longer represent the law under the EPA Act and that land held in reserve for some future activity cannot be said to be actually physically used within the wording of the legislation.

Amendments after the Vaughan-Taylor case [5.51 OJ The impact of Vaughan-Taylor has been qualified by amendments made to the EPA Act

in 1992. These provide that if a nonconforming use is lawful because of a development consent, development carried out in accordance with the terms of that consent is not affected by any

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subsequent EPI (s 109B). So, for example, if the development consent permits mining or quarrying over a wider area than that currently developed, the developer is entitled to develop that wider area in spite of any subsequent prohibition. The precise terms of the consent, therefore, are crucial. The 1992 amendments did not modify the impact of Vaughan-Taylor where the nonconforming use is lawful because the use has been continuously carried out before any planning controls covered the area (ie, not because of an existing development consent). The NSW government also responded to the decision in Vaughan-Taylor by introducing SEPP 37, which permitted mines and extractive industries to continue during a moratorium period while development consent was obtained. The moratorium has since expired and SEPP 37 has been repealed. (See also Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17.)

How much of a building or land is used? [5.520] How much of a building, work or land is physically and lawfully used? An existing use of land refers to the "land which from a practical point of view should be regarded as one piece of land or a unit" (Lemworth Pty Ltd v Liverpool City Council [2001] NSWCA 389). In Starray Pty Ltd v Sydney City Council [2002] NSWLEC 48, the land concerned was being used as a car park and was held to be confined to the ground level. It did not extend underground. In Lemworth Pty Ltd v Liverpool City Council [2001] NSWCA 389, the unit of land on which a brothel was carried out was limited to the first floor of the building. However in Mona Vale Pty Ltd v Pittwater Council [2003] NSWLEC 74, the existing use rights for a retail shopping complex included the stratum below the surface of the land, and in Moore Development Group Pty Ltd v Pittwater Council [2003] NSWLEC 130, the use of a three-storey building for a motel was held to be carried out on each level of the building and to include a restaurant on the ground floor, because the motel and restaurant were physically interconnected and operated as one entity.

Existing use rights and development consent [5.530] As discussed above, nothing in an EPI prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force (s 109B; Mcllveen v Baiada Pty Ltd [2003] NSWLEC 174; Botany Bay City Council v Workmate Abrasives Pty Ltd (No 2) [2003] NSWLEC 166). In Caltex Australia Petroleum Pty Ltd v Manly Council [2007] NSWLEC 105, Pain J held that a use carried out under a development consent granted prior to the coming into force of an EPI that prohibits the use operates separately from the existing use rights regime so that the development consent holder does not have existing use rights in addition to the rights conferred by the development consent. But compare Currency Corporation Pty Ltd v Wyong Shire Council [2006] NSWLEC 692 where Biscoe J held that pevelopment that is carried out under a development consent that is in force is also an existing use if the applicable EPI prohibits the use authorised by the consent. This conflict in the case law has been recently resolved by the NSW Court of Appeal in Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147. The Court preferred the approach taken by Biscoe Jin Currency Corporation, making it clear thats 109B (which permits a person to continue to carry out development pursuant to a development consent even if a subsequent planning instrument prohibits the use of the land to which the consent related for that

[5.560]

chapter 5 Development

purpose) is subordinate to s 106 (which defines existing uses). It has held that a use pursuant to a development consent protected bys 109B may also be an existing use within the meaning of s 106 and afforded the existing use right protections under the EPA Act. Effectively, s 109B provides an additional protection for an existing use which is a use authorised by a development consent.

Existing consents [5.540] Suppose that a new EPI does not prohibit the purpose for which a building, work or land is currently being used, but imposes a new requirement for development consent. The law is that the requirement for development consent does not operate retrospectively. Nothing in an EPI operates so as to require consent to be obtained under the Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the EPI (s 109(1)). Accordingly, if the building, work or land was lawfully being used for the purpose immediately before the new EPI came into force (Steedman v Baulkham Hills Shire Council (No 2) (1993) 80 LGERA 323), there is no need for development consent for the continuing use (s 109(1)). The protected use has been misleadingly referred to as an "existing consent" to distinguish it from an existing use.

Where new development consent is needed [5.550] Section 109(1) does not allow (s 109(2)):

• any alteration or rebuilding to or rebuilding of a building or work, or • any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or

• any enlargement or expansion or intensification of the use, or • the continuance of the use mentioned in breach of any consent in force under the Act, or • the continuance of the use where it is abandoned.

Section 109(3) provides that a continuing use is presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months. For decided cases applicable to uses covered by section 109, see existing uses at [5.420]-[5.530].

Determining the area of continuing use [5.560] The protected shape and size of the continuing use is determined as at 5 February 1986, the date when the amendments came into operation (Lane Cove Municipal Council v Lujeta Pty Ltd (1986) 58 LGRA 157; King v Lewis (1995) 88 LGERA 183). In addition, the protected continuing use right is lost if it is abandoned (EPA Act, ss 109(2)(e), 109(3)). Many of the classification difficulties raised in the context of existing uses by the case of Shire of Perth v O'Keefe (1964) 110 CLR 529; [1964] HCA 37 (see [5.480]) have been avoided by specific provisions in EPis. These make it absolutely clear that certain modifications to some uses do not

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need consent. For example, under clause 7 of State Environmental Planning Policy No 4 Development Without Consent and Miscellaneous Exempt and Complying Development (now repealed), in certain local government areas there was no need for consent for changes in the kind of shop being run or a particular type of commercial activity, regardless of the provisions of other EPis. The 1997 amendments to the Act which introduced the category of exempt development (see [5.320)) has resulted in an increase in the number of such provisions. Specific £Pis provisions removing the need for consent has subsequently grown extensively with the introduction of State Environment Planning Policy (Exempt and Complying Development Codes) 2008.

Development applications [5.570] The appropriate procedure for development applications depends on whether or not an application is for integrated development. Additional procedures also apply to:

• advertised development (see [5.1040]) • designated development (see [5.970]) • State significant development (see [5.2700]) • development requiring concurrence (see [5.850]).

Complying development is certified under a separate process (see [5.590]) and a development application is not needed for it. Development that is declared to be State significant infrastructure is dealt with under Part 5.1 and Part 4 of the Act does not apply (see [5.2750]).

Applications for more than one type of development

[5.610]

chapter 5 Development

Complying development may be carried out if (s 84A(l)):

• a complying development certificate has been issued, and • the development is carried out in accordance with the certificate and any provisions of an EPI, development control plan or the regulations. It is possible for building work that is complying development to proceed without any consideration by the local council and entirely through a series of certificates issued by a private accredited certifier (see [5.600]). In such circumstances, the only public access to information will be in the form of the register of complying development certificates kept by the council (cl 267).

Accredited certifiers [5.600] An accredited certifier is a person who is the holder of a certificate of accreditation as an accredited certifier under the Building Professionals Act 2005 (s 4(1)). Section 4 of this Act establishes an accreditation scheme which provides for corporate accreditation and individual accreditation in different accreditation categories.

Applications for complying development [5.610] An application for a complying development certificate may be made by the owner of the land or any other person with the consent of the owner (s 84A(2)). The information and materials the application must contain are listed in Part 2 of Schedule 1 of the Regulation (cl 126(1)(a)). The application may be made either to the council or to an accredited certifier. A decision must be made within the period prescribed by the Regulation, unless the applicant agrees to an extension (s 85A(8)). The time limit prescribed for determination is 10 days, or 20 days if it is a type of development that requires a notice to be given under clause 130AB (cl 130AA) .. The council or accredited certifier must consider and determine (s 85A(3)):

[5.580] A development application may be made in respect of one or more types of development as defined in the EPA Act (see [5.80]). For example, only one development application is needed for subdivision, the erection of buildings, and the use of those buildings for a particular purpose once they are constructed (s 78A(2)). In addition, if the consent authority is a council, the proponent may apply in the same application for development consent and some approvals required under the Local Government Act 1993 (s 78A(3)).

• whether the proposed development is complying development • whether the development complies with the relevant development standards • whether the development complies with any applicable standards and conditions for

In some instances, the developer may not wish to prepare detailed plans and specifications for building work until it is clear that the development as a whole will be permitted under the applicable zoning. In these circumstances, a developer can simply lodge a series of development applications for different aspects of a proposal.

•

complying development imposed by an LEP or development control plan. The council or accredited certifier cannot refuse to issue a certificate: on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations (s 85A(4)), or

• if the development complies with the applicable development standards and with other requirements prescribed by the regulations (s 85A(7)).

Complying development [5.590] The concept of complying development was introduced into the Act in 1997. Until then, all applications that required development consent were determined by councils, the Minister or another public authority (depending on the relevant EPI), and assessed on their merits. Complying development may now be approved, without any merit assessment, by a council or by an private sector accredited certifier (s 85A(6)) provided that it complies with specified predetermined development standards (see [5.630])

There is no right of appeal against a failure or refusal to determine an application for a complying development certificate (s 85A(10)).

If a complying development certificate is issued by an accredited certifier rather than the council, the certifier must forward to the council copies of the determination, any endorsed plans, specifications, any complying development certificate issued as a result of the determination, the record of inspection of the site of the development, and any other documents, within two days of the determination (cl 130(4)).

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Standards and requirements [5.620] The Regulation sets out development standards relating to fire safety and structural capacity for building work associated with a change of use of an existing building, or building work that involves alteration, enlargement or extension of an existing building (ell 131, 132).

• • •

Additional requirements ensure that: the work must be carried out in accordance with the Building Code of Australia and residential building work complies with the insurance requirements of the Home Building Act 1989 (see cl 98) the council is notified of the principal contractor or owner-builder (cl 98B) commitments listed in a relevant BASIX certificate (see [10.420]) for the development are fulfilled (cl 97A(2)).

Complying development certificates [5.630] A complying development certificate certifies that particular proposed complying development will comply with all applicable development standards and other requirements prescribed by the regulations if carried out as specified in the certificate (s 85(1)).

Imposing conditions on certificates [5.640] The council or accredited certifier may only impose conditions required by the regulations, EPI or development control plan and conditions requiring a monetary contribution for public amenities and services (s 85A(6), 85A(9); see [5.1890]-[5.2100]). The Regulation specifies a small number of conditions that must be imposed when a complying development certificate is issued (Part 7, Division 2A, ell 136A - 136N). Those conditions include requirements relating to: compliance with the Building Code of Australia and insurance requirements under the Home Building Act 1989

• • fulfillment of BASIX commitments • the removal of asbestos materials • any requirement for payment of security prior to commencement of work.

[5.660)

chapter 5 Development

application. Accordingly, a development application does not relate to adjoining land simply because it is expected that access over the adjoining land will be intensified as a result of the development (see also Hillpalm Pty Ltd v Tweed Shire Council [2002] NSWLEC 17; Motbey v Hollis [2003] NSWLEC 40) or because work may be required to be carried out on other land under the conditions of consent to address the impacts of the development: see Farah v Warringah Council [2006] NSWLEC 191. Where a consent authority must give owner's consent to the making of a development application (where, eg, the council owns an adjoining road), and an appeal is lodged against the determination of the application, the Land and Environment Court has the power to grant owner's consent to the development application in place of the consent authority (Land and Environment Court Act 1979, s 39(2); Kogarah Municipal Council v Kent (1981) 46 LGRA 334; McDougall v Warringah Shire Council (1993) 80 LGERA 151; Sydney City Council v Claude Neon Ltd (1989) 67 LGERA 181; Shel/harbour Municipal Council v Rovili Pty Ltd (1989) 68 LGRA 231; Pimas Group Pty Ltd v Maritime Services Board of NSW (1994) 82 LGERA 205; Paino v Woollahra Municipal Council (1990) 71 LGRA 62; Gibson v Mosman Municipal Council [2001] NSWLEC 134; Becton Corporation Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2005] NSWLEC 197). The case law on this point is thoroughly examined in Goldberg v Waverley Council [2007] NSWLEC 259. A development application made by a lessee of Crown land requires written consent granted by or on behalf of the Crown (cl 49(3)). A development application made in respect of land owned by a Local Aboriginal Land Council may be made by a person only with the consent of the New South Wales Aboriginal Land Council (cl 49(3A)). Public authority developers need only serve a copy of an application on the owner of land and do not require written consent (cl 49(2)). The predecessor of this provision was introduced in 1985 in order to deal with the position of public authorities seeking advance approval for large-scale developments, such as dams and transmission lines, which affect areas of land currently owned by a large number of private individuals.

Incomplete development applications

another person with the owner's written consent (s 78A(1), cl 49(1); King v Great Lakes Shire Council (1986) 58 LGRA 366; Sydney City Council v Claude Neon Ltd (1989) 67 LGRA 181; Shel/harbour Municipal Council v Rovili Pty Ltd (1989) 68 LGRA 231); Cobden-Jones v Woollahra Municipal Council [2002] NSWLEC 2.

[5.660] If a development application does not substantially comply with the statutory requirements (such as the requirement for owner consent), it is incomplete and ineffective. However, the owner's consent can be supplied at any time before the determination of the application. If the defect in the application is remedied, it is regarded as having the same legal force and effect as if it had been validly made on the date of lodgement (Currey v Sutherland Shire Council [2003] NSWCA 300; Botany Bay City Council v Remath Investments No 6 Pty Ltd [2000] NSWCA 364; Rose Bay Marina v Minister for Urban Affairs and Planning [2002] NSWLEC 223; Hemmes Hermitage Pty Ltd v City of Sydney Council [2004] NSWLEC 539; Becton Corporation Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2005] NSWLEC 197).

In North Sydney Council v Ligon 302 Pty Ltd (1996) 91 LGERA 352, the High Court adopted a restricted interpretation of the land to which a development relates. The consent of the owner of adjoining land is not required unless the adjoining land is the subject of the development

The Regulation stipulates that a development application may be rejected by a consent authority within 14 days of lodgement, and lists the grounds of rejection (cll 51(1), 51(2)). Where a consent authority decides that a development application is to be rejected and not determined,

Making a development application [5.650] A development application may be made by:

• •

the owner of the land to which the development relates, or

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the applicant may request a review of this decision (s 82B). An application for review by a council must be made within 14 days of the applicant given written notice of the decision to reject and not determine the development application (cl 123H(l)). A council is deemed to have refused an application for review if it fails to determine the application within 14 days of lodgement (cl 123H(3)). A development application is taken never to have been made if it is rejected and the determination to reject it is not changed following any review (cl 51(3)).

Amendments to development applications [5.670] A development application may be amended by the applicant, but only with the agreement of the consent authority, at any time before the application is determined (cl 55). If a development application is amended, a fresh owner's consent is not required. The landowner is taken to have consented to the full development assessment process, including the provisions that authorise the amendment or variation of a development application by the applicant (Rose Bay Afloat Pty Ltd v Woollahra Municipal Council [2002] NSWLEC 208).

Information required [5.680] Part 1 of Schedule 1 of the Regulation specifies that a development application must contain certain information and be accompanied by certain documents. A statement of environmental effects is required for all development (s 78A(9); cl 50(1)(a)) except designated development and State significant development, which require submission of an environmental impact statement (ss 78A(8)(a), 78A(8A); Regulation, Sch 1, Part 1). Development relating to critical habitat or likely to significantly affect threatened species, populations or ecological communities, or their habitats, must also be accompanied by a species impact statement, unless the development application is for State significant development (s 78A(8)(b); Regulation, Sch 1 Part 1; see Chapter 12).

The development application must be accompanied by a fee as determined by the consent authority (cl 50(1)).

Environmental impact [5.690] Of particular importance is the information that must be provided to enable the environmental impact of a development to be assessed.

Statement of environmental effects [5.700] Even where a statement of environmental effects is required, it has been held that the failure by the applicant to include one in the development application will not invalidate a development consent: see Cranky Rock Road Action Group Inc v Cowra Shire Council [2006] NSWCA 339; McGovern v Ku-Ring-Cai Council (2008) 72 NSWLR 504; [2008] NSWCA 209.

Designated development (5.710] In the absence of an environmental impact statement, an application in respect of designated development is ineffective and incomplete and not properly made (Botany Bay City Council v Remath Investments No 6 Pty Ltd [2000] NSWCA 364; Helman v Byron Shire

[5.760]

chapter 5 Development

Council (1995) 87 LGERA 349; Builders Recyclers Investments Pty Ltd v Marrickville Council [2003] NSWLEC 331) and the failure to comply with the requirement will result in the ultimate invalidity of any determination (McGovern v Ku-Ring-Cai Council (2008) 72 NSWLR 504; [2008] NSWCA 209).

Critical habitat or threatened species [5.720] Failure to comply with a requirement for a development application to be accompanied by a species impact statement will result in the ultimate invalidity of any determination (McGovern v Ku-Ring-Cai Council (2008) 72 NSWLR 504; [2008] NSWCA 209).

Reductions in water use and greenhouse gas emission [5.730] The Act and Regulation implement the NSW Government's scheme for new residential dwelling development to meet targets of a 40% reduction in water consumption and a 25% reduction in greenhouse gas emissions, compared with the previous average for a home. A development application for any BASIX affected development or the alteration, enlargement or extension of a BASIX affected building that contains more than one dwelling, must be accompanied by a BASIX certificate that has been issued no earlier than three months before the date on which the application is made (cl 164A; Sch 1, cl 2A).

The BASIX scheme is discussed in [10.420].

Residential apartments [5.740] A development application that relates to a residential apartment development must be accompanied by a design verification from the qualified designer of the development verifying that it conforms to design quality principles set out in Part 2 of SEPP 65 (Regulation cl 50(1A), l(AB), (lB); see [3.430]).

Staged development applications and consents [5.750] A developer undertaking a major long-term project may be unable to provide more than a general picture of the total development, and councils and the courts have often been reluctant to bind themselves to such proposals. This is because there is often insufficient information available to assess such things as environmental impact and other planning implications.

Case study: A resort built over 15 years [5.760] In Civil and Real Estate v Great Lakes Shire Council (1981) 46 LGRA 283, a development application was made for an extensive resort-type development combining vacation and residential facilities. It was estimated to cost between $100 million and $150 million, to be completed over a period of 15 to 25 years, proceeding gradually in accordance with market demand. The applicant conceded the lack of precision of the proposal, but argued that this was inevitable if it was to retain the necessary flexibility to meet changing market conditions. The Council rejected the application, and the Land and Environment Court upheld the decision. As far as the court was concerned, the proposal should have been divided into a number of stages, with a fresh development application being

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made for each. Although this procedure could create financing problems for the developer, these had to be set against the planning disadvantages of a blanket approval. The Council could not cope adequately with the situation by attaching conditions to a development consent.

Approving concept proposals and staged development [5.770] To deal with the problems created by large developments to be completed over many years, the ability to grant staged development consents was introduced in 1993 amendments to the EPA Act, consequent to the enactment of the Local Government Act 1993. This type of consent was continued in the 1997 amendments to the EPA Act (ss 80(4), 80(5)). Special provisions further facilitating the staging of development applications were introduced in 2005 (EPA Act Part 4, Division 2A, plus amendments toss 80(4) and 80(5)).

[5.830)

chapter 5 Development

Any subsequent development consent for a site cannot be inconsistent with a staged development consent already granted for that site (s 83D(2)) .

Modifying a staged development consent [5.800] Section 83D(3) provides that a staged development consent can be modified in accordance with the Act (see (5.2320)). Accordingly, it may be possible to modify the concept consent to accommodate changes to the development even after one or more stages have been completed. Such modifications would be subject to the usual requirements for modification of a consent.

Alternative to preparation of a development control plan [5.810] A staged development application can be made in circumstances where an EPI requires

the preparation of a development control plan (DCP; see (3.670]) before particular development is carried out on land. The staged development application satisfies the obligation for the preparation of the DCP if it contains the information which has to be included in the DCP (s 83C).

Staged development applications [5.780] An applicant can request that the application should be treated as a staged development application, which sets out concept proposals for the development of a site. Detailed proposals for separate parts of the site are to be the subject of subsequent development applications (s 83B). The application may set out detailed proposals for the first stage of development. Section 83B(2) provides that a development application cannot be treated as a staged development application under Division 2A unless the applicant requests that it be so treated.

The information that should be provided in relation to a concept proposal application will depend on the circumstances. It seems that the application must respond to all "relevant" matters critical to the site and the ultimate proposed use. For example:

• where traffic generation is important, the application must include information on the precise number of cars that will be accommodated on a site • where floor space is critical, the application should include the precise details of the proposal • where the major issue is the protection of vegetation, the footprints of the proposed buildings may be sufficient.

''Total" or "partial" development consents (5.820] A consent authority has the power to, in effect, grant development consents in stages even if the applicant has not requested it to do so (s 80(4)) . For under the legislation, the consent authority can grant consent for:

• the development for which the consent is sought, or • that development, except for a specified part or aspect, or • a specified part or aspect of that development.

The consent authority is not required to refuse consent to any specified part or aspect of development for which development consent is not initially granted, and development consent may subsequently be granted for that part or aspect of the development (s 80(5)) . See also Patrick Autocare Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWLEC 687; CEAL Limited v Minister for Planning [2007] NSWLEC 302. Of course, if the applicant is dissatisfied with a decision by a consent authority not to grant consent to the entire development for which consent is sought, the applicant can appeal to the Land and Environment Court (see [5.2230]).

Effect of a consent to a staged development application [5.790] If consent is granted to a staged development application, the consent does not authorise the carrying out of development on any part of the site concerned unless (s 83B(3)}:

• consent is subsequently granted to carry out development on that part of the site following a further development application, or • the staged development application also provided the requisite details of the development on that part of the site and consent is granted without the need for further consent.

Who makes the decision? [5.830] In most cases of development that requires development consent under Part 4 of the EPA Act, the body responsible for making the initial decision (the consent authority} is the local council. However, there is nothing to stop an EPI from naming another consent authority, such as the Planning Minister or any other Minister, the Planning Assessment Commission, the Greater Sydney Commission, a joint regional planning panel or a public authority (s 4(1)).

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A joint regional planning panel may exercise the consent authority functions for councils in relation to development where this is specified in an EPI (s 23G(2); see State Environmental Planning Policy (State and Regional Development) 2011, Part 4 - Regional Development)). A list of the specific types of development for which regional panels may be authorised to exercise consent authority functions of councils is contained in Schedule 4A of the EPA Act, including: development that has a capital investment value of more than $20 million (EPA Act, Schedule 4A, cl 3)

• • specified types of private infrastructure and community facilities that have a capital investment value of more than $5 million (EPA Act, Schedule 4A, cl 6) • certain types of designated development, including extractive industries, marinas and waste management facilities (EPA Act, Schedule 4A, cl 8) • certain subdivision development in the coastal zone (EPA Act, Schedule 4A, cl 9).

The Minister is the consent authority for development classified as State significant (s 89D(l); see [5.2720)).

Major development in the City of Sydney (5.840] A slightly unusual position applies under the City of Sydney Act 1988. The Central Sydney Planning Committee may exercise the functions of the Sydney City Council under Part 4 of the Act in relation to major development (City of Sydney Act 1988, s 40). This includes (s 31):

• • •

development worth more than $50 million development that would not comply with an EPI if an unconditional consent were given development the committee has been requested to deal with by the Minister.

The committee has seven members, including two elected councillors and the Lord Mayor (s 34). It has the power to fast-track projects that need other authorisations in addition to development consent by setting time limits within which these decisions must be made. The committee can even give the authorisations itself if other bodies do not co-operate (ss 46 - 51).

Concurrence [5.850] Even where the local council is the consent authority, an EPI may provide that consent cannot be given unless the Minister or a public authority agrees to it - that is, unless concurrence is given (ss 30(2), 79B(l)). In other words, the council can reject the application purely on its own initiative, but if it wants to give consent, it must obtain co-operation from the Minister or public authority. If, however, an EPI makes the Minister the consent authority, and states that the Minister is required to obtain the concurrence of a person, the Minister is required only to consult with that person (s 79B(2)) and does not have to follow their advice. Consultation and concurrence requirements do not apply to State significant development unless specified in an EPI (s 79B(2A)).

If a consent authority (other than the Minister) grants a consent without obtaining concurrence, or the consent is not made subject to the conditions that the concurring body imposed, the development consent is voidable and may be set aside by the Court (s 79B(l0); see [5.2620)).

[5.880)

chapte r 5 Development

Concurrence requirements, including whether concurrence is required, who is responsible for giving concurrence and what they must consider, are usually imposed by an EPI. In the case of development on land that is critical habitat, or that is likely to significantly affect a threatened species, population or ecological community or its habitat, the legislation itself requires the concurrence of the Chief Executive of the Office of Environment and Heritage except where a Minister is the consent authority. In that case, only consultation between that Minister and the Minister administering the Threatened Species Conservation Act 1995 is required (s 79B(3); see [12.1130)). When deciding whether or not to grant concurrence, the concurrence body may consider only those matters listed in the relevant EPI and may grant concurrence (with or without conditions) or refuse it (s 79B(8)). Conditions attached to the concurrence must be reflected in the consent where the consent authority decides to grant consent (s 79B(9)). Recent amendments to the EPA Act in relation to threatened species requirements permit the Chief Executive of the Office of Environment and Heritage to grant concurrence conditional on the taking of specific action ("voluntary action") that is considered will significantly benefit threatened species conservation (s 79B(8A)). Voluntary action that can be required by a condition imposed under this provision consists of (s 79B(8B)):

• reservation of land under the National Parks and Wildlife Act 1974 or entering into a conservation agreement relating to the land • action to secure the protection of land for conservation purposes by a method that the Chief Executive considers satisfactory • action to restore threatened species on land • a monetary contribution to achieve any of the above purposes.

The concurrence body must give its reasons for imposing conditions or refusing concurrence (cl 63). It may also notify the consent authority in advance that its concurrence may be assumed in certain circumstances (cl 64).

Time limits [5.860] Where concurrence cannot be assumed, the decision must be made within 40 days, or, if the application has been publicly notified, 21 days after receiving copies of written submissions or notice that none were made (cl 62(1)). After that time, the consent authority can go ahead and give consent without bothering about concurrence (s 79B(ll)).

Appeals [5.870] On appeal, the Land and Environment Court may determine the appeal whether or not any relevant consultation has taken place or concurrence or approval granted. The Court may also vary or revoke any conditions imposed or that could have been imposed (Land and Environment Court Act 1979, s 39(6)).

Development by the Crow n [5.880] Special provisions for development undertaken by or on behalf of the Crown, and limiting the powers of local councils to refuse such development, were formerly contained in

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[5.890]

individual EPis. Amendments to the legislation in 1985 imposed uniform provisions in the EPA Act itself. Division 4 of Part 4 now applies to development by or on behalf of the Crown. The Crown includes (EPA Act, s 88(2)(a); cl 226):

• • • •

a public authority (other than a council) a public utility an Australian university

Delays and disputes [5.890] If the consent authority fails to determine a Crown development application within 70 days after a development application is lodged with the consent authority, the applicant or the consent authority may refer the application (EPA Act, s 89(2); cl 113B(l}}:

to the Minister, if the consent authority is not a council, or to the applicable regional panel, if the consent authority is a council.

The regional panel acts as a consent authority with respect to any application referred to it (ss 89(3), (4)) . Only if it fails to determine the application within 50 days can the applicant or the panel refer the application to the Minister (EPA Act, ss 89(2A), 89(5); cl 113(B)(2)). When an application is referred to a regional panel or the Minister, the consent authority must, as soon as practicable, submit (s 89(7)):

• • • •

a copy of the development application, and details of its proposed determination of the development application, and the reasons for the proposed determination, and any relevant reports of another public authority.

Where the application is referred to the Minister, he or she may direct the consent authority to approve the application, with or without specified conditions or to refuse it (s 89A(l)). If the consent authority fails to comply with the direction, it is taken, on the last date for compliance specified in the direction, to have determined the application in accordance with the direction (s 89A(3)). These provisions impose considerable restrictions on the powers of councils in relation to certain kinds of development. In practice, it is extremely difficult for a council to persuade the Minister to support it in refusing a development consent, although attempts are occasionally made. In most cases, the issue is about the conditions to be attached to the consent. Councils have some bargaining power, and many cases do not go to the Minister because developers are prepared to negotiate with councils about conditions. One important factor in this regard is the time it takes for any dispute to be resolved by the Minister.

Standards applying to building work by the Crown? [5.900] Crown building work is (s 109R(l}}:

•

chapter 5 Development

•

an activity under Part 5 of the EPA Act, by the Crown that comprises the erection or demolition of a building or work or incidental work.

Crown building work cannot be commenced unless it is certified by or on behalf of the Crown to comply with the technical provisions of the Building Code of Australia (s 109R(2}; cl 227). However, Ministers may, under section 109R(3), exempt buildings or classes of buildings for which they are responsible from a particular provision of the Code (ss 109R(3), 109R(4)).

a TAFE establishment.

Section 89(1) provides that councils must not refuse consent to such applications except with the written approval of the Minister, and must not impose a condition of consent except with the written approval of the Minister or the applicant.

• •

[5.930]

development (other than exempt development), or

Public participation [5.91 OJ Provisions for public participation depend on the type of development involved, the terms of applicable EPis and development control plans and the practice of the consent authority. There are specific provisions for public participation in relation to specific types of development applications, in particular:

• designated development (see [5 .970]) • State significant development (see [5.2700]) • advertised development (see [5.1040]) • other development (see [5.930]; [5.1120]). • development covered by section 342ZA of the Local Government Act 1919 (see [5.1130])

The requirements to give notice for each type of development are discussed in detail below.

Public hearings requested by the Minister [5.920] One of the functions of the Planning Assessment Commission is to review any development, activity, infrastructure or project (s 23D(l)(b)(ii)). It must conduct a public hearing (cl 268R):

• if requested to do so by the Minister or the Secretary, • if the review concerns a development under Part 4 that, in the Commission's opinion, may involve the need for an approval under the Water Management Act 2000 (see Chapter 14 ).

Public participation where there is no statutory requirement Council practice [5.930] If there is no specific requirement under the legislation for a council or other consent authority to give notice of a development application, an individual does not have a right to have their views considered unless the council or other planning authority has a practice of giving notice and considering submissions. Such a practice has been held to give rise to an obligation under the common law that notice will be given in the future (Hornsby Shire Council v Porter (1990) 20 LGRA 175; Hooper v Lucas (1990) 71 LGRA27; Somerville v Dalby (1990) 69 LGRA 422; Nelson v Burwood Municipal Council (1991) 75 LGRA 39; Lesnewski v Mosman

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Municipal Council [2005] NSWCA 99; compare Cooper and Wilton v Maitland City Council, unreported, Land and Environment Court, 19 May 1992).

Case study: J oinder [5.960] In Meriton Apartments Pty Ltd v Fairfield City Council (No 2) [2005] NSWLEC 121, the Residents Against Lansdowne Eviction Incorporated were given leave to be joined as a party to bring evidence of the social impact of the proposed closure of a caravan park. In Grosvenor Australia Properties Pty Ltd v The Council of the City of Sydney (2006) 147 LGERA 25; [2006] NSWLEC 270, Railcorp was joined as a party to proceedings where it had a particular knowledge of and concern about a major public infrastructure proposal potentially impacted by the erection of two residential tower blocks above a multi-level car-park. In Mirvac Projects Pty Ltd v Ku-ring-gai Council (2007) NSWLEC 113, an adjacent landowner was joined to the proceedings to raise an issue going towards the power of the Court to grant the application in question.

Case study: Procedural fairness [5.940] In Barton Securities Ltd v Warringah Council (2009) 170 LGERA 223; [2009] NSWLEC 179, the Council elected to go beyond its own notification policy and placed material on its website regarding the processing of the relevant development application. The applicant became aware from the website that owner's consent to the development application had not been properly given and requested the council to reject the development application, but made no submission objecting to the proposed development. The Council subsequently received information that satisfied its concerns regarding owner's consent but placed no further information about this on the website, nor any information to the effect that it had decided to process the development application further. It proceeded to grant consent. It was held that once the Council put information on its website, it created a legitimate expectation on the part of the applicant that further relevant information would become available to it, and the applicant was denied procedural fairness (see [2.380]) in that it was denied the opportunity to lodge an objection.

Participation in the Land and Environment Court [5.950] If a council rejects an application and the developer appeals to the Land and Environment Court, a neighbour may be invited to the court by the council as a witness to give evidence on such matters as the impact of the development on the amenity of the neighbourhood (see [2.350] ).

Designated development [5.970] If a proposed development falls into the very restricted category of designated development, anybody can make written submissions to the consent authority (s 79(5)). Anybody who makes an objection in such a submission can appeal on the merits (see [2.350]) to the court (s 98).

The consent authority must advertise proposed designated development. This must be done in each of three different ways. 1.

•

a person is able to raise an issue that should be considered in appeal proceedings, and can show that the issue would be unlikely to be sufficiently addressed if they were not joined as a party, or

2.

Someone joined as a party in this way has the right (subject to case management by the Court) to bring evidence and make submissions in the proceedings. They also have a right to appeal on a question of law arising out of the determination of the proceedings (Lowy v Land and Environment Court [2002] NSWCA 353).

3.

to those who appear to be owners or occupiers of adjoining land, if practicable, to other owners and occupiers of land that may, in the consent authority's opinion, be detrimentally affected if the designated development is carried out.

A notice must be placed on the land where -development is proposed (s 79(1)(c)). The notice must (cl 79):

• • • • •

it is in the interests of justice or the public interest that the person be joined as a party to the appeal.

In deciding whether to exercise its discretion to join the party, the Court will take into account matters such as the delay in the application, the likely strength of the issues sought to be raised and the undesirability of having a multiplicity of parties to proceedings (Pro-vision Developments Pty Ltd v Ku-ring-gai Municipal Council [2003] NSWLEC 226; Bongiorno Hawkins Frasetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205).

If the use or enjoyment of land may, in the council's opinion, be detrimentally affected by the proposed development, written notice must be given in accordance with the Regulation (s 79(1)(6); cl 78):

• •

Section 39A of the Land and Environment Court Act 1979 allows people to be joined as parties to an appeal if the Court is of the opinion that:

•

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be displayed on a signpost or board be clear and legible be headed DEVELOPMENT PROPOSAL in capital letters and bold type contain details required by the Regulation (cl 79(1)(e)) be capable, if practicable, of being read from a public place.

A notice must be published on at least two separate occasions in a newspaper (s 79(1)(d); cl 80). It must:

• • •

be large enough to appear across two or three columns in the newspaper' s display be headed DEVELOPMENT PROPOSAL in capital letters and bold type contain details required by the Regulation (cl 80).

The information that must be set out in the notices includes (cl 78):

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the name of the applicant a brief description of the application a notice saying where and when the application and the environmental impact statement required to accompany applications for designated development (see [5.680]) may be inspected.

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[5.1020)

written submissions, either for or against a proposal, during the exhibition period. If they object to the proposal, they must set out the reasons for their objection (s 79(5)).

Case studies: Public exhibition Failure to comply with requirements for public exhibition

Amending the application [5.980] It can happen that the designated development application is altered before the consent authority makes its decision, or is withdrawn and replaced by a new application that is substantially the same. In such a case the council does not have to go through the notice procedures again if, in its opinion, the applications differ in only "minor respects" (s 79(6)). This does not specifically deal with the slightly different situation where a council consents to a development application subject to a number of conditions that require alterations to the plans or further vetting by the council (see [5.1560]).

Case studies: Amendment of a development application [5.990] In Woodhouse v Wyong Shire Council (No 2) [2006] NSWLEC 83, Cowdroy J in the Land and Environment Court concluded that there did not need to be any further notification following the amendment of a development application for a poultry farm because there was no change to the nature of the proposed activity, the proposed physical structure was largely consistent with the original proposal and the detrimental effects were substantially reduced. In Barca v Wollondilly Shire Council (2014) 205 LGERA 454, an environmental impact statement was subsequently amended after the making of a development application, but was not exhibited in accordance with s 79(1). Pepper J noted (at [49]): It was uncontentious that the effect of s 79(1) and (6) of the EPAAis that if an original development application (which includes the material accompanying that application) has been exhibited in conformity with s 79(1) and is later amended, the consent authority may dispense with the further exhibition of the amended application if the consent authority is of the opinion that the amended application differs "only in minor respects from the original application" (s 79(6)). Otherwise, the amended development application must be re-exhibited in accordance withs 79(1).

See also [5.1010] below.

Public exhibition [5.1000] The development application and any accompanying information must be exhibited for at least 30 days following the first newspaper notice. Exhibition may be at public libraries as well as council offices. Anybody, whether or not they live in the area, can come to the exhibition and make extracts and copies of documents (ss 79(1), 79(4)). Members of the public can make

[5.1010] In Barca v Wollondilly Shire Council (2014) 205 LGERA 454, Pepper J referred to s 80(9) of the EPA Act, which relevantly provides that a consent authority must not determine a development application for designated development until after the submission period in s 79(1)(a) has expired. Her Honour found that the failure to comply with the exhibition requirements in s 79(1) - insofar as an amended environmental impact statement was not exhibited for the required public notification period - prohibited the council from determining the development application. Public notification, in accordance with the EPA Act, is a condition precedent to the valid exercise of the council's power to determine the development application. As it had not been satisfied, the determination of the development application by the council was invalid. Extension of submission period In Woolcott Group Pty Ltd v Rostry Pty Ltd [2015] NSWLEC 46, Preston CJ accepted at [59] that a consent authority has the power to extend the submission period for the purposes of s 79(1)(a) of the EPA Act. However, this power can only be exercised so as to extend the submission period universally for all persons and not differently for one or some persons. His Honour also noted at [59] that there is:

only one submission period for the purposes of s 79 of the EPA Act, although this one submission period is used under s 79 for two purposes: firstly, to fix the period during which the development application and accompanying information must be placed on public exhibition and be available for inspection by the public (ss 79(l)(a) and 79(4)) and, secondly, to fix the period during which the public may make written submissions to the consent authority with respect to the development application (s 79(5)). There cannot be one submission period for public exhibition and a different submission period for making public submissions.

Appeal and review [5.1020] Those who have submitted an objection to the proposal have a right of appeal to the Land and Environment Court, which makes a decision on the merits of the application. They must do so within 28 days after being informed of the council's decision (s 98(1)). The applicant has six months to decide whether or not to appeal (ss 97(1), 97(2), 97(3)). Amendments to the EPA Act in 1997 conferred on an objector to designated development a right to be heard at an applicant's appeal as if that person was a party to it (s 97(4)); however this right was removed in 2010 amendments to appeals under the EPA Act.

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Review by the Planning Assessment Commission [5.1030] Where the Planning Assessment Commission, carries out a review of a designated

development application directed by the Minister or the Secretary requiring a public hearing (s 23D(l)(b)), the applicant and any objectors are deprived of their appeal rights and the consent authority makes the decision (ss 97(7), 98(5), 80(6) - (7)). Copies of submissions made by objectors must be sent to the Director-General of the Planning Department, unless the Secretary has waived the requirement (s 80(9), 80(10)).

Advertised development [5.1040] The next special category of development that allows for some limited public

participation is advertised development. This is defined as development (other than designated development or State significant development) that is identified as advertised development by an EPI, regulations, or a development control plan. Advertised development also includes any non-designated development for the purposes of a scheduled activity at any premises under the Protection of the Environment Operations Act 1997 (EPA Act, s 4(1)). Since the introduction of the EPA Act, EPis have often contained provisions stating that some, but not all, provisions in the Act relating to designated development apply to specified development. These provisions were those relating to the giving of public notice, public exhibition of the development application, and the making of written submissions.

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or reduce, the prov1s10ns of the Regulation relating to advertised development (s 29A). Development control plans (DCPs; see [3.670]) can also identify development as advertised development provided that they make additional but not inconsistent requirements to those imposed by the Regulation (s 74C(l)(b)).

Notification [5.1100] Only adjoining owners and occupiers need be notified in wntmg of advertised development (cl 88(1)(a)), and there are no requirements as to where in the newspaper the published notice is to appear (cl 87(6)).

Submissions may be made for at least 30 days from the date the notice is first published in the newspaper (EPA Act, s 79A(l); cll 89(1)(d), 89(1)(e), 89(l)(f), 89(3)(a)) in respect of:

• nominated integrated development • threatened species development.

For other categories, the submission period is at least 14 days (cl 89(3)(6)).

Appeals [5.111 0] There are no third-party appeal rights in respect of advertised development.

Notification requirements in DCPs

Types of advertised development

[5.1120] The EPA Act envisages not only that DCPs can identify advertised development

[5.1050] The Regulation identifies a number of different types of advertised development

(s 74C(l)(b); see above), but also "provide for (or exclude) public or particular advertising or notification of . . . a development application for specified development" other than State significant, designated or advertised development (s 74C(l)(c)(i)). These provisions are binding on councils (s 79A(2)).

(cl 5(1)), and these are discussed below.

Nominated integrated development [5.1060] Nominated integrated development covers only selected classes of integrated development listed in [5.370] above, specifically development requiring a specified approval under (cl 5(1)(6)):

• the Heritage Act 1977 • the Water Management Act 2000 • the Protection of the Environment Operations Act 1997. Threatened species development

[5.1070] Threatened species development 1s development that reqmres preparation and consideration of a species impact statement.

Class 1 aquaculture development [5.1080] Class 1 aquaculture development 1s development under SEPP 62 - Sustainable Aquaculture (see [19.790]).

Compliance with the advertising and notification requirements of a DCP is sufficient to discharge the consent authority's obligation to afford procedural fairness (see [2.380]) in relation to notification of a development application (Sisic v Rockdale City Council [2007] NSWLEC 687; Hillpalm Pty Ltd v Tweed Shire Council [2002] NSWLEC 17; see also Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6). In Sisic, the Council was held to have afforded procedural fairness to an objector where letters notifying the objector of the relevant development application were shown to have been correctly delivered to the objector's postal address notwithstanding that the letters subsequently went missing without explanation and were not received by the objector. However, there will be a denial of procedural fairness if the notification provided by the Council or other planning authority does not provide adequate information regarding the development application (see Doueihi v Canterbury City Council [2003] NSWLEC 267; Trenwith v Sutherland Shire Council [2005] NSWLEC 143).

Development identified by an EPI or a development control plan

Local Government Act, section 342ZA

[5.1090] An EPI can contain provisions that identify development, other than designated

[5.1130] Section 342ZA of the Local Government Act 1919 was found in Local Government Act 1919 Part XIIA of that Act, which was repealed when the Environmental Planning and

development, as advertised development being provisions that add to or extend, but not replace

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Assessment Act 1979 came into force. Under clause 14(1) of the Miscellaneous Acts (Planning) Savings and Transitional Provisions Regulation 1980, section 342ZA continues in force, but only where a development application involves the provisions of "a former planning instrument" that is, a planning scheme ordinance or an interim development order made before the EPA Act was introduced. Where an LEP made under the EPA Act is involved, section 342ZA is replaced by the categories of advertised and designated development. Only a handful of former planning instruments remain in force in NSW, so few development applications are now affected by their provisions. In practice, section 342ZA only applies to the erection of residential flat buildings. These must be advertised in a similar way to designated and advertised development, but there are important differences (s 342ZA(l}).

Notification (5.1140] The first difference is that personal notification need only be given to:

• adjoining owners (not occupiers), and • owners whose enjoyment of their land may, in the council's opinion, be detrimentally affected. Councils have substantial discretion in identifying exactly who these people are. However, a greater onus is placed on councils here than in the case of designated or advertised development, because their obligation to inform owners who may be detrimentally affected is not qualified by the words "where practicable". Second, as with designated development, notice must be placed on the land concerned - not, for example, on telegraph poles close by (Donnelly v Marrickville Municipal Council (1973) 28 LGRA276). Finally, after these two kinds of notice have been given, notice must be published in a local newspaper. The notice must indicate that the development application is on exhibition for a period of 21 days (the period for designated development is 30 days). During this time, anybody can inspect the application at council offices during office hours (ss 342ZA(3), 342ZA(4)).

Objections (5.1150] Anybody can object to designated or advertised development, but considerable restrictions are placed on who can make written objections to development covered by section 342ZA. Only landowners, not occupiers, can object, and then only if a personal notice has been served on them or if they contend that their enjoyment of their land will be detrimentally

affected (s 342ZA(5}). Landowners who come within these provisions do not have the third-party appeal rights of objectors to designated development. They do, however, have greater rights than objectors to advertised development. If a council decides to reject a development application, and the developer appeals, objectors to development covered by section 342ZA have a right to be heard at the appeal as if they were parties to the proceedings (s 342ZA(7)). In other words, they do not have to rely on the council calling them as witnesses. Normally their only role in these

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proceedings is establishing the detrimental effect of the development on their enjoyment of their land. Yet it seems that where the council plays only a passive role in the proceedings (eg, where it has delayed making a decision and, as a result, is deemed to have refused the application), the court may allow the objector to launch a general attack on the proposed development on the broadest principles of town planning and urban design (Parangool v North Sydney Municipal Council, unreported, Land and Environment Court, 4 May 1982).

Reodvertising (5.1160] Where the development proposed is changed because the council has attached conditions to the development approval the courts have required readvertisement under section 342ZA only "when revised plans are not being dealt with pursuant to the original application, but pursuant to a new application" (Cambridge Credit Corporation Ltd v Parkes Developments Pty Ltd (1974] 2 NSWLR 590). In a later case (IDA Safe Constructions Pty Ltd v Woollahra Municipal Council (1981) 48 LGRA 62), this was interpreted as meaning that readvertisement is needed only when the "reasonably minded potential objector" would object to the development as amended by the conditions attached to the development consent.

Errors in advertising (5.1170] The Land and Environment Court has held that the notification requirements of the Environmental Planning and Assessment Regulation 2000 are mandatory. In Johnson v Lake Macquarie City Council (1996) 91 LGERA 331, the notice of a development application for designated development stated that the period for public exhibition and submissions was 14 days, instead of the 28 days required by the Regulation. Justice Stein had regard to section 5(c) of the EPA Act, concerning the Act's object of the promotion of public involvement and participation in environmental planning and assessment, and held that strict or substantial compliance with the Regulation was required. Substantial compliance might have been achieved if the notice had specified one or two days short of the required period, but on these facts the statutory purpose was unfulfilled. The consent granted by the council was held to be invalid.

A failure to comply with notification requirements led to similar results in Levenstrath Community Association Inc v Tomies Timber [2000] NSWLEC 95, Curac v Shoalhaven City Council (1993) 81 LGERA 124 and De Haas v Williams [2004] NSWLEC 15. This approach is consistent with the courts' usual insistence on strict compliance with procedural requirements for the making of EPis (Leichhardt Municipal Council v Minister for Planning (1992) 78 LGERA 306; Smith v Wyong Shire Council (2003] NSWCA 322), and draws support from the statement of objectives in the Act. In a leading case on breach of notification requirements (Lesnewski v Mosman Municipal Council [2005] NSWCA 99) the Court of Appeal was unwilling (but did not need) to decide whether a consent is invalid because notification requirements have not been strictly complied with. However, the court held that if a failure to comply amounts to a breach of the rules of procedural fairness (see [2.380]), such a consent could be invalid. Where the Minister is the consent authority, consents are given additional protection (s 102). The only requirements of the legislation that are mandatory are those relating to the minimum period for public exhibition (s 102(c)).

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Making the decision What must be considered? [5.1180] Section 79C of the EPA Act sets out the factors consent authorities must take into account when making decisions under the Act. This includes:

• local councils • joint regional planning panels (s 23G(2)(a)) • the Planning Minister (or the Planning Assessment Commission under delegation from the Minister (s 23D(l)(a)) • the Land and Environment Court (Land and Environment Court Act 1979, ss 39(2), 39(4)). It has been held that section 79C does not exclude consideration of other relevant matters, including any matter that, in the public interest, relates to the objects of the Act as set out in section 5 (Carstens v Pittwater Council (1999) 111 LGERA 1).

•

Section 79C(l) now lists five broad matters for consideration: the provisions of any of the following that apply to the land to which the development application relates:

• any EPI (see [5.1270]) • any proposed EPI that is or has been the subject of public consultation and that has been notified to the consent authority (see [5.1300]) • any development control plan (see [5.1310]) • any planning agreement or draft planning agreement that the developer has offered to enter into (see [5 .2110]) • any matter prescribed by regulations (see [5.1330]) • any coastal zone management plan within the meaning of the Coastal Protection Act

• • • •

1979 (see [14.810]) the likely impacts of the development, including environmental impacts on both the natural and built environments and social and economic impacts in the locality (see [5.1340]-[5.1430]) the suitability of the site for the development (see [5.1440]) any submissions made in accordance with the Act or the Regulation (see [5.1460)) the public interest (see [5.1480]). These factors are considered in detail below.

Section 79C obliges consent authorities to take into consideration those matters specified in that section that are relevant to the subject of the application (Parramatta City Council v Hale (1982) 47 LGRA 319), otherwise there will be grounds for judicial review (see [2.360]-[2.540]), and the development consent could be declared invalid. The terms of s 79C(1) are mandatory (Weal v Bathurst City Council (2000) 111 LGERA). A failure to take into account a matter under section 79C can only vitiate a decision if the consent authority was bound to take it into account when determining the application (Noble v Cowra Shire Council [2001] NSWLEC 149; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40). Elaborating this point, in Teys

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Australia Southern Pty Ltd v Burns (2015) 206 LGERA 186, a case, involving the interpretation of a "proposed instrument" ins 79C(l)(a)(ii), Pain] held that "a decision to give no weight to an issue is a legally different concept to a failure to take a mandatory matter into account. A matter can be taken into account, even though it is afforded no weight" (at [62]). The matters listed in s 79C(1) are not exhaustive. It sets out the matters that a consent authority must take into consideration, but does not exclude from consideration other matters which may be relevant to the particular application that furthers the objects of the EPA Act (Carstens v Pittwater Council (1999) 111 LGERA 1). While s 79C(1) is silent on what other matters a consent authority may take into account, it does not mean that if a consent authority takes into account matters outside those prescribed in s 79C, that an error of law will have automatically occurred (SDHA Pty Ltd v Waverley Council [2015] NSWLEC 65). Materially misleading statements that are considered by the consent authority in the assessment of a development application have the capacity to vitiate its decision (see, for example, the comments of Biscoe J in Sharples v Minister for Local Government [2008] NSWLEC 328). However, such statements will not vitiate a consent authority's decision if the evidence shows that it nevertheless properly discharged its duty under section 79C (Moorebank Recyclers Pty Ltd v Liverpool City Council [2009] NSWLEC 100).

What weight is given to each factor? [5.1190] The legislation does not indicate what weight must be given to each factor, so long as they are all considered, when relevant. There is also no rule that says that if the development proposal fails on any particular factor, consent must be denied (Bauer Holdings Pty Ltd v Sydney City Council (1981) 48 LGRA 356). There is nothing to say that factors should be given equal (or any) weight when it comes to making the final decision. They simply have to be duly considered where they are relevant. To determine a development application without proper consideration of those matters is an error of law that would vitiate the decision. Some cases have applied a test of "proper, genuine and realistic" consideration (see, for example Weal v Bathurst City Council (2000) 111 LGERA 181; Ai v Newcastle City Council [2003] NSWLEC 123; Anderson v Minister for Infrastructure Planning and Natural Resources [2006] NSWLEC 725; see also Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472). Recently, however, the NSW Court of Appeal has expressed its reservations regarding the use of that test (Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23; Belmorgan Property Development Pty Ltd v GPT Real Estate Ltd [2000] NSWCA 171 ), and has said that the requirement is that the relevant matter under section 79C must be more than merely adverted to or given mere lip service: Anderson v Director-General, Department of Environment and Climate Change [2008] NSWCA 337. See generally, [2.360]-[2.540].

Duty to consider imposition of conditions [5.1200] The duty to consider relevant matters under section 79C(l)(b) involves the duty to consider not only the likely impacts on the natural and built environments and social and economic impacts in the locality, but available protective or mitigating measures. In this regard, the conditions to be included in the consent are an integral part of the consideration (Weal v

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Bathurst City Council [2000] NSWCA 88; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23). In Weal, the court said that the relevant duty is to balance possibly competing interests, including the public and private interests in preventing harm to the environment and the public and private interests in permitting gainful use of the land. In Kindimindi, the council had issued a development consent for a shopping centre near a school containing numerous conditions but not a requirement that a new drop-off facility be constructed to promote pedestrian safety in relation to the school. The requirement for the drop-off facility was included in a deed between the council and the developer. The Court of Appeal held that the consent should have contained a requirement for the construction of the drop-off facility. It was not properly contained in a private deed alone.

Power of decision-makers [5.1210] Ultimately, the decision-maker can, on the merits of a particular application, legally make what is generally recognised as being a bad decision. The law will not intervene on these grounds and the decision will stand, except where a right of appeal on the merits is provided by legislation and the decision is reversed on appeal.

Limits on discretion Is the development permissible with consent [5.1220] The threshold question for a consent authority is whether a proposed development is permissible with consent under the relevant EPI, and not prohibited. This question is determined by properly characterising (that is, classifying) the proposed development under the EPI (see [2.300]). In Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, the Court of Appeal held that such characterisation was a jurisdictional fact, which, on appeal, the Land and Environment Court must determine for itself. The court said that the issue was one of statutory construction, not opinion.

Development standards [5.1230] A council or accredited certifier cannot exercise discretion to refuse an application for a complying development certificate if the development complies with the applicable development standards and regulations (s 85A(7); see [5.590]). Even where development is not within the category of complying development, there may be non-discretionary development standards in relation to which the discretion of the decision-maker is restricted (s 79C(2); see [5.1280]).

Accreditation is another limitation. A consent authority must not refuse to grant consent to development on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in accordance with the regulations (s 79C(4)).

Giv ing consideration t o a development application [5.1240] Many cases deal with the question of whether a consent authority has given proper consideration to the matters in section 79C (and the former s 90). A wrong assessment of the

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relevant section 79C considerations in planning terms does not mean that there has been a failure by the consent authority to take relevant considerations into account (see Brunetto v Collector of Customs (1984) 4 FCR 92). Furthermore, the correctness or incorrectness of a conclusion reached by the consent authority is irrelevant if the decision it reached based on the section 79C considerations is reasonably open to it (Broad Henry v Director-General of the Department of Environment and Conservation [2007] NSWLEC 722). In King v Bathurst Regional Council [2006] NSWLEC 505 (at [63]) Jagot J said that there was a "world of difference between justifiable opinion and sound opinion". Whether an opinion is sound or not "is not a question for decision by a Court". A distinction has been drawn between the way in which matters are taken to be considered by Ministers and councils. If a ministerial or departmental official has knowledge of a matter, the Minister is taken to know it (see Carltona Ltd v Commissioners of Works [1943] 2 All ER 560), but if only one council officer knows something, it is not taken to be known by the elected councillors who must determine an application as a collegiate body (Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401). However, it has been held that, in the absence of evidence to the contrary, documents contained on a council's files are presumed to be documents in the possession of the councillors (Parramatta City Council v Hale (1982) 47 LGRA 319; Somerville v Dalby (1990) 69 LGRA 422; Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74; Gee v Council of The City Of Sydney [2004] NSWLEC 581; Notaras v Waverley Council [2007] NSWCA 333). Of course, when matters are directly before the council at the time it grants consent, it can be inferred that the council knew of them (Houlton v Woollahra Municipal Council [1998] NSWLEC 188). Section 79C does not require the councillors to individually pursue every element of a development application; they are entitled to rely on conclusions drawn by qualified officers such as engineers and town planners, and it is open to the councillors to accept or reject such conclusions (Hill v Woollahra Municipal Council [2003] NSWCA 106; Friends of Malua Bay Inc v Perkins (2014) 203 LGERA 14). The benchmark set by the Court of Appeal for councillors dealing with development applications is that "the fair-minded observer will expect little more than an absence of personal interest in the decision and a willingness to give genuine and appropriate consideration to the application, the matters required by law to be taken into account and any recommendation of council officers" (McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; 161 LGERA 170 at [80]).In Zhang v Canterbury City Council [2001] NSWCA 167, a commissioner in the Land and Environment Court failed to specifically consider a requirement of a development control plan that a brothel should not be located within 200 metres of a church or school. The Court of Appeal held that this was a breach of the Act. The commissioner had substituted a different approach, namely that the adverse impact on the affected land arising from the presence of a brothel had to be demonstrated in the proceedings before him. See also Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA226. In Hill v Woollahra Municipal Council [2003] NSWCA 106, the court said that explicit reference to the instrument would help confirm that the body did address the right question, but the absence of such reference did not of itself indicate that it had not. The court said that when a court came to consider whether or not such a breach had occurred, the court would have regard

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to the presumption of regularity. See also Minister for Natural Resources v NSW Aboriginal Land Council (1987) 62 LGRA 409; Morris v Kanssen [1946] AC 459; Western Stores Ltd v Orange City Council (1971) 23 LGRA 191. The courts take a different approach where the question is whether the consent authority has the legal power to grant development consent. That question will arise, for example, if an EPI prohibits consent being granted unless the consent authority is satisfied as to one or more specified matters. In Manly Council v Hortis [2001] NSWCA 81, the NSW Court of Appeal held that the court will not presume that a consent authority has fulfilled a requirement that is an essential prerequisite to its power to grant development consent. The court must determine this for itself. In that case, a clause in an LEP provided that the council could not grant consent to development unless it was satisfied that the development would not have a detrimental effect on the amenity of a foreshore scenic protection area. The court held that it could be inferred that council did not consider the clause because there was no reference to it in the minutes and no evidence was called at the trial that the clause had been considered. See also Frank/ins Ltd v Penrith City Council [1999] NSWCA 134; Skouteris v Auburn City Council [2005] NSWLEC 207; Clifford v Wyong Shire Council (1996) 89 LGERA 240; Currey v Sutherland Shire Council (1998) 100 LGERA 365; Hastings Point Progress Association Inc v Tweed Shire Council [2008] NSWLEC 180; Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69.

Planning principles [5.1250] Since 2003 the Land and Environment Court has developed its own planning principles. A planning principle comes about when a decision explicitly sets out particular criteria that should be applied when making a future decision about a situation that occurs frequently. Usually the planning principle outlines a series of steps that should be applied in assessing the situation and making the decision. The aim is to enable councils and developers to understand the approach which will ordinarily be applied by the Court, and to enhance the capacity of those advising councils and developers to predict the approach likely to be taken.

Currently there are around 40 published planning principles, including, for example, those dealing with:

• what regard should a consent authority give to the principles of ecologically sustainable development (BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399) • the adequacy, and location, of allotted communal open space in a development (Seaside Property v Wyong Shire Council [2004] NSWLEC 600) • the compatibility of a proposal with the surrounding development (Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWCA 108) • the extension of trading hours and the increase in the number of patrons allowed on licensed premises (Vinson v Randwick Council [2005] NSWLEC 142) • existing use rights and assessment of merits in a redevelopment proposal (Fodor Investments •

v Hornsby Shire Council [2005] NSWLEC 71; Stromness Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 587 application of the precautionary principle (Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133; see pp 10-12)

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• access to sunlight (The Benevolent Society v Waverley Council [2010] NSWLEC 1082) • assessment of height, bulk and scale (Veloshin v Randwick City Council [2007] NSWLEC 428) • solar access for allotments in residential subdivisions (Wallis & Moore Pty Ltd v Sutherland Shire Council [2006] NSWLEC 713) • views - general principles (Tenacity Consulting v Warringah Council [2004] NSWLEC 140).

Case study: Consistency of decision-making? [5.1260] Planning principles are not legally binding (Segal v Waverley Council

(2005) 64 NSWLR 177; Stromness Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 587). Tellingly, in Segal v Waverley Council, Tobias JA in the Court of Appeal stated that (at [95]-[96]}: I am in no way convinced that in the context of adversarial proceedings in the Land and Environment Court, there is any place for the so-called principle of consistency in administrative decision-making. As I have observed . . . above, that concept is more appropriately applied to true administrative decision-making at the level of executive or local government. It has no application to adversarial proceedings where the merits of any particular application depend upon the facts and circumstances of the case and the substantive issues joined between the parties. My only qualification to the foregoing, at least in the context of environmental planning, is that consistency in the application of planning principles is, clearly, a desirable objective.

Environmental planning instruments [5.1270] The provisions of relevant EPis must be looked at when assessing development applications (s 79C(l)(a)(i)). The consent authority is bound to consider which provisions in an EPI are relevant (Noble v Cowra Shire Council [2001] NSWLEC 149; Parramatta City Council v Hale (1982) 47 LGRA 319).

The Land and Environment Court has held that a provision of any relevant EPI must be given determining weight (Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472). In many cases, an EPI requires the consent authority not to grant consent unless it is of the opinion that the development is generally consistent with one or more of the objectives of the plan and one or more of the objectives of the zone within which the development is proposed to be carried out. In Hunt v Blacktown City Council [2001] NSWCA 216, the NSW Court of Appeal held that such a requirement does not prohibit development, but places a limit on the power of the consent authority to grant consent. A development is regarded for legal purposes as consistent with the objectives of a zone if it does not conflict with them. It is not necessary to demonstrate that a development promotes or is ancillary to the objectives, nor even that it is compatible with them (New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154; see also Coffs Harbour Environmental Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185).

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Development standards [5.1280] Decision makers should consider any development standards in the EPI. Nondiscretionary development standards are those identified as such in an EPI or the Regulation (s 79C(6)). If a development complies with such a standard, the decision-maker must not (s 79C(2)):

• take the standard into further consideration in determining the application • refuse the application on the ground that the development does not comply • impose a condition that has the same effect as the standard but is more onerous.

If a proposed development does not comply with development standards, the decision-maker has more discretion. Clause 4.6 - Exceptions to development standards - of Standard Instrument LEPs, or SEPP 1 in the case of other EPis, may permit flexibility in the application of those development standards (see [3.180]; [3.400]).

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Appeal considered a draft LEP containing a transitional provision that said that the plan did not apply to a development application made but not finally determined when the plan came into force. The court held that such a provision did not force the consent authority to ignore otherwise relevant provisions of the draft instrument. The court commented that, if an application was brought under a pre-existing instrument and would substantially undermine the draft instrument's purpose, the draft instrument should be given significant weight in deciding whether to reject the application. See also Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC279. The language used in a particular savings clause is important (see: Alamdo Holdings Pty Ltd v Hills Shire Council [2012] NSWLEC 1302; Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 1127). However, the adoption of a standard savings provision under the Standard LEP (cl 1.8A- Savings provision relating to development applications) should result in greater uniformity of interpretation of the effect of these provisions.

[5.1290] EPis may require consideration of other special matters relating to the development. For example, there may be special matters to be considered where access to a site is through a junction or intersection with a main road (Environmental Planning and Assessment Model Provisions 1980, cl 10(2)).

Even if particular EPis have not reached this stage, the courts held that they could still be taken into account as one of the "circumstances of the case" under the former section 90(1)(q), and may also be taken into account as an element of the public interest under section 79C(l)(e). The importance attached to them depended on the court's estimate of how likely they were to be eventually placed on public exhibition (Silverton v North Sydney Municipal Council, unreported, Land and Environment Court, 23 July 1982; Fridrich Constructions Pty Ltd v Leichhardt Municipal Council, unreported, Land and Environment Court, 23 December 1982).

Draft EP/s

Development control plans

Consideration of other matters

[5.1300] In addition to considering EPis that have been finalised, the consent authority must also take into consideration any proposed EPI of which it has notice has been subject to public consultation, unless the Director-General of the Planning Department has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved (s 79C(l)(a)(ii)). In this context, proper consideration of the proposed instrument means that the consent authority may give weight to the fact that provisions in the instrument will come into force (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA289).

A failure by the consent authority to take into consideration the prov1s10ns of a draft instrument is a failure to discharge the obligation imposed by section 79C(l)(a)(ii) and any decision on the development application will be invalid (Centro Properties Pty Ltd v Albury City Council [2005] NSWLEC 721; Centro Properties Ltd v Hurstville City Council [2006] NSWLEC 78; Belmore Residents Action Group Inc v Canterbury City Council [2006] NSWLEC 530). The Land and Environment Court has held that, under section 79C, a consent authority must take into consideration an exhibited draft LEP that would prohibit development that was the subject of a development application. However, while the draft LEP was significant to the decision, it was not necessarily determinative of it (Novara Crescent Pty Ltd v Sutherland Shire Council [2004] NSWLEC 403). In many cases, draft instruments contain savings and transitional provisions - that is, provisions governing the changeover period between outgoing and incoming EPls. In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289, the NSW Court of

[5.1310] Development control plans (see [3.670]) must also be considered (s 79C(l)(a)(iii)). Unlike EPis, DCPs are not legally binding, even though they might spell out planning policy and development standards in quite specific terms.

The statutory obligation is to have regard to an applicable development control plan, not to apply it correctly in a planning sense (McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209). This obligation precludes the consent authority from substituting a different planning approach or policy to that contained in the plan. In Zhang v Canterbury City Council [2001] NSWCA 167, the NSW Court of Appeal found that a Commissioner in the Land and Environment Court did not take into consideration provisions of a DCP as to where a brothel should not be located because he substituted for the statutory requirement a different policy approach. See also Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226. A failure to apply the correct provisions of a DCP constitutes a failure to properly consider the plan and is an error of law (Wiggins v Pittwater Council [2006] NSWLEC 543). In Zhang v Canterbury City Council [2001] NSWCA 167, the Court held that a DCP had to be treated as a fundamental element in, or a focal point of, the decision-making process. In Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, McClelland J, Chief Judge of the Land and Environment Court, set out the approach to be taken to consideration of DCPs under section 79C. A DCP adopted after consultation with interested persons, including the affected community, would be given significantly more weight than one adopted with little or no community consultation. Further, a DCP that had been consistently applied by a council would

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be given significantly greater weight than one that had only been selectively applied. Finally, if it could be demonstrated that a DCP brought about an inappropriate planning solution, especially an outcome which conflicted with other policy outcomes adopted at a State, regional or local level, it would be given less weight than a DCP that provided a sensible planning outcome consistent with other policies. See also Andrews v Botany Bay City Council [2008] NSWLEC 96. Following 2012 amendments to the EPA Act which commenced in March 2013, the Department of Planning and Environment has sought to redefine the purpose, status and content of DCPs including to change the way a consent authority is to consider a DCP when assessing a development application. The amendments were made in response to developer and Departmental concern that "following a number of recent court cases, councils have felt obliged to treat DCPs as inflexible and rigid rule-books which must be consistently applied when considering development applications" (see Planning Circular PS 13-003 - Proclamation of certain provisions of EP&A Amendment Act 2012, p 1). Particular concern was directed to the courts' interpretation of the role of DCPs in Zang v Canterbury City Council and Stockland Development Pty Ltd v Manly Council. The objectives of the changes are to:

• reinforce the purpose and status of DCPs as guidance documents used in local planning decision-making, and • introduce flexibility in the way in which provisions in DCPs are applied by consent

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In Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 4 72, McClelland J said that when there is a relevant policy that is not a DCP, the weight to be given to it will depend upon a number of matters. If the policy has been generated with little public consultation and was designed to defeat a project that was known to be under consideration by a developer for a particular site, it may be given little weight. However, where controls have been carefully thought out after detailed consultation, but have not been included in a DCP, the council should make decisions that give them practical application. Unless there were good reasons, the council was also entitled to expect the court to require development to conform to the adopted policy. A council is entitled to be concerned about the risk of creating a precedent when it is being asked to depart from its consistently applied policy, and to refuse consent when it considers that the departure is unjustified (BP Australia Ltd v Campbel/town City Council (1994) 83 LGERA 274).

Matters prescribed by regulation [5.1330) Under the Regulation, certain councils are required to take the Government Coastal Policy into consideration in their decision-making, and all councils must take into consideration the provisions of Australian Standard 2601 when considering a development application for the demolition of a building (EPA Act, s 79C(l)(a)(iv); cl 92).

authorities when assessing development applications Amendments were made to DCP provisions in Part 3 of the EPA Act, as well as insertion of a news 79C matter for consideration (s 79C(3A) - Development control plans), to make clear the role of DCP provisions in development assessment. Under the changes:

• if a development application complies with the provisions of a DCP, a consent authority is not able to apply more onerous standards (s 79C(3A)(a)) • if a development application does not comply with provisions in a DCP, a consent authority

•

must be flexible in the way it applies the controls and also allow for reasonable alternative solutions to achieve the objectives of those standards (s 79C(3A)(b)) a consent authority may consider only the DCP's development standards in connection with the assessment of the particular development application before it (s 79C(3A)(c)). See also Chapter 3, [3.670].

Environmental impact [5.1340] Section 79C( 1 )(b) of the EPA Act requires the consent authority to have regard to: the likely impact of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality. Consideration must also be given as to whether there is likely to be a significant effect on critical habitat, or threatened species, populations or ecological communities, or their habitats, because a species impact statement must be prepared and considered if there is (ss SA, 78A(8)(b); see [12.1090]). Beyond these general obligations, there is a specific obligation to have regard to the register of critical habitat kept by the Chief Executive of the Ofice of Environment and Heritage (ss 5B(l), 5B(2)(a)). EPis may also impose requirements to consider particular impacts on the natural environment (eg, SEPP 44 - Koala Habitat Protection; see [12.900]).

Council codes and policies [5. 1320) Even if a council policy or code has not been made into a DCP (see [3. 700]), if it is a well-founded, detailed planning policy it can still be taken into consideration under section 79C(l)(e) (see [5.1480]) as an aspect of the public interest (Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; Maxnox Pty Ltd v Hurstville City Council [2006] NSWLEC 146; F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537). In Bonaccorso, Biscoe J decided that the council's heritage policy was not written in terms which made it readily applicable to particular cases. It was simply "a general statement of council's desire to preserve items which are thought to have some heritage significance of varying degrees", and was not a document that the council was obliged to consider.

Ecologically sustainable development [5.1350) The meaning of ESD and the relevance of the precautionary principle is dealt with at length in Chapter 1 ([1.220]). As discussed there, it has been held by the Land and Environment Court that ESD principles must be considered as an aspect of the "public interest" (s 79C(l)(e)) in cases where issues relevant to those principles arise (Carstens v Pittwater Council [1999] NSWLEC 249 at [74]; BGP Properties Ltd v Lake Macquarie City Council [2004] NSWLEC 399 at [113]; Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 at [123]-[124]; Minister for Planning v Walker [2008] NSWCA 224 at [43], Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426; Gales Holdings Pty Ltd v Tweed Shire Council [2006] NSWLEC 85).

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Inter-generational equity

Measures to mitigate harm

[5.1360] One of the key ESD principles which has to be taken into account in development consent decisions is inter-generational equity. An important factor in this context is the assessment of the cumulative impacts of proposed activities on the environment. In Gray v Minister for Planning [2006] NSWLEC 720, Pain Jin the Land and Environment Court held that a failure to consider cumulative impacts would not adequately address the environmental impact of a particular development where often no single event could be said to have such a significant impact that it would irretrievably harm a particular environment, but cumulatively activities would harm the environment (see also Anderson v Director-General, Department of Environment and Conservation [2006] NSWLEC 12).

[5.1390] An earlier version of section 79C required the consent authority to consider not just the

The principles of ESD are interrelated in the environmental assessment of development. In Gray, for example, Pain J held that the approach to environmental assessment required by the application of the precautionary principle and inter-generational equity required the decisionmaker to have knowledge of impacts which were cumulative, ongoing and long term and recognised that in the context of climate change there was considerable overlap between the environmental assessment requirements to enable these two principles of ESD to be adequately dealt with.

Climate change

likely impact on the environment, but any means to protect the environment or mitigate the harm. In Parramatta City Council v Hale (1982) 47 LGRA 319, Justice Moffitt discussed the interpretation of this provision (although his views do not necessarily represent those of the Court of Appeal). He suggested that councils should find out about means to protect the environment, and would be wise to consider submissions on relevant environmental matters "particularly from experts" - even though there was a legal obligation to do this only in a limited number of situations (see [2.430]). Otherwise they risked a challenge based on the argument that due consideration had not been given to environmental protection. (See also King v Great Lakes Shire Council (1986) 58 LGRA 366.) This opened up back-door opportunities for public participation. But Justice Moffitt went even further. He suggested that councils would be well advised to gather information themselves, at least through their officers. In the reformulation of the factors to be considered in section 79C there is no requirement to consider ways to protect the environment or to mitigate environmental harm. This suggests that a consent authority may now be able to rely on information provided by the applicant or readily available to it. Assessment of the likely effects of development could be unnecessarily constrained unless such a requirement could be incorporated into a general consideration of "the public interest" under section 79C(l)(e).

[5.1370] Some important recent ESD cases have dealt with the consideration of the likely effects

of climate change on development (see, eg, Gray v Minister for Planning [2006] NSWLEC 720 (greenhouse gas emissions); Minister for Planning v Walker [2008] NSWCA 224 (increased risk of flooding), Aldous v Greater Taree City Council (2009) 167 LGERA 13; [2009] NSWLEC 17 (increased risk of coastal erosion), Newton and anor v Great Lakes Council[2013] NSWLEC 1248 (reasonableness of climate change-related conditions of consent)). The Australian and international case law concerning the consideration of ESD and climate change particularly in a planning context, was comprehensively reviewed by Biscoe Jin Walker v Minister for Planning [2007] NSWLEC 741.

Brood scope of environmental impact [5.1380] The definition of environment (s 4(1)) includes not only the natural environment but also "all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings". In addition, section 79C(l)(b) refers to impacts on both the natural and built environment. This includes impacts such as the implications of a development for traffic movement - for example, whether the road system in the area can cope with the traffic likely to be generated by it, and whether the means of access to it are adequate. They may also include the aesthetic impact on the landscape and scenery, and the relationship with other development on adjoining land or in the locality. This would involve considering the effects on views enjoyed by neighbours, their privacy, and their access to sunlight and ventilation. Size, bulk, the appearance and design of buildings, and effects on the health and safety of occupants may also be taken into consideration. The visual qualities of a neighbourhood can be damaged by buildings that are ugly or out of harmony with the surroundings.

Social and economic impacts [5.1400] The consent authority must take into consideration in so far as is relevant to the proposed development (s 79C(l)(b)):

the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality. What a consent authority may lawfully consider when considering the economic impact of development has been dealt with in a number of cases. The cases establish a general principle that the consent authority may not have regard to issues of commercial competition between a proposed development and businesses in a locality unless the effects of such competition are likely to produce an overall community detriment by adversely affecting the availability or adequacy of services or facilities: Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373; AMP Investments Ltd v Newcastle City Council [1999] NSWLEC 164; Cartier Holdings Pty Ltd v Newcastle City Council (2001) NSWLEC 170. The classic formulation of the principle is that of Stephen J in the High Court decision in Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 in the following terms (at 681):

If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development. However, the mere threat of competition to existing businesses, if not accompanied by a prospect by a

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resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration. In Randall v Willoughby City Council [2005] NSWCA 205, Basten JA said (at [45)) that it is at least arguable that a broader construction of section 79C(1)(b) can be adopted than Fabcot and Cartier indicate.

Case study: Economic impacts [5.1410] The Court of Appeal's decision in Randall v Willoughby City Council

(2005) NSWCA 205 shows how in appropriate cases the direct and indirect economic impacts of the proposed development on the users of a facility and the developer can be considered. In that case, the appellant owned a lot and carpark within a building in Chatswood. The development consent for the lot required that free parking be provided to the public for the first two hours. The appellant applied to the council to modify the development consent to enable a charge to be imposed for the first two hours of parking. The application was refused by the Council and a Commissioner of the Land and Environment Court on appeal. The Commissioner held that the imposition of a fee would induce persons to park elsewhere, and maybe take their business elsewhere in the locality. The Court of Appeal upheld the condition. Basten JA said (at (38)-(39]): This was not a case in which either the purpose or the effect of the decision was or would be to interfere with market forces. No question arose as to the establishment of a new business which might compete with existing businesses. Rather, the question was whether the claimant should be entitled to charge for an aspect of its services for which it cannot now charge, because of the existence of a condition which the claimant assumed to have been validly imposed. In this situation it would not have been surprising if the claimant had sought to call evidence of the economic impact of the condition on its operations. But its present argument would appear to entail the conclusion that such evidence should not be considered. If a planning authority can impose a condition regulating the circumstances in which charges can be levied, it would be absurd to suggest it cannot consider the economic impact of imposing or varying such a condition. ... The imposition of a parking fee must have a direct economic impact on each person who thereafter uses the parking lot for a period of less than two hours, that being the period of free parking under the existing consent conditions. No doubt the impact on one individual would be dismissed as insignificant. However, the direct impact must properly be understood as applying to many individuals over an extended period of time. It has been held that whilst the economic viability of a proposed development might be relevant in a broad sense, it is not relevant in the sense of the profitability of the applicant's personal business (see Patra Holdings Pty Ltd v Minister for Land and Water Conservation (2001) 119 LGERA 231; (2001) NSWLEC 265).

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Socially incompatible uses [5.1420] Some uses may be socially incompatible with existing uses. A sex shop may offend a

large part of the community, and therefore not be permitted on planning grounds (Venus Enterprises v Parramatta City Council (1981) 43 LGRA 67), but there is a need for concrete evidence that people would be affronted. As Justice McClelland stated in Dennis v Parramatta City Council (1981) 43 LGRA 71: This Court is not a court of morals and its decision in a matter such as this must be based solely on planning and environmental considerations. There clearly are limits, therefore, as to how far the court will go. It is obviously not concerned with preserving the moral fabric of society, though it is concerned about the social impact of development. One area where this has been apparent is in respect of the social impact 1 locational compatibility and spatial concentration of licenced premises, hotels and liquor stores (see Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402; Waugh Hotel Management Pty Ltd v Marrickville Council [2009] NSWCA 390; ]PR Legal Pty Ltd v Marrickville Council (2009] NSWLEC 1216; Martin Morris & Jones Pty Ltd v Shoalhaven City Council [2012] NSWLEC 1280).

Case studies: Interests of property owners [5.1430] The Land and Environment Court considered the meaning of "social and economic effect ... in the locality" in what was then section 90(1)(d) of the EPA Act on a number of occasions. The wording of that provision was almost identical to the current provision.

In IDA Safe Constructions Pty Ltd v Woollahra Municipal Council (1981) 48 LGRA 62, Justice McClelland said that a relevant factor was the likelihood that the proposed development would reduce the value of neighbouring units by interfering with views. In Bauer Holdings Pty Ltd v Sydney City Council (1981) 48 LGRA 356, Justice McClelland was faced with a motel development that would have resulted in the loss of an existing boarding house. He held that the decision-maker had to take into consideration that the development would result in a reduction of available housing stock for permanent residents, that there would be less accommodation in the locality for people on low incomes, that the existing use of the site as a boarding house was not economically viable and that, because of the age of the buildings, continuing expenditure would be required if they were to remain habitable. The interests of property owners were to be taken into account as well as those of low-income tenants. In the end, having regard to all of these matters, along with all the other relevant considerations spelt out in former section 90(1), the decision was reached that development consent should be granted.

In contrast, the court refused consent in Fridrich Constructions Pty Ltd v Leichhardt Municipal Council (unreported, Land and Environment Court, 23 December 1982). This involved a development application to carry out a strata subdivision of a residential flat building currently providing private rental accommodation to tenants in the low to moderate income group Although Senior Assessor Bignold, as he then was, followed the law laid down in Bauer's case

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(above), he did not find that the existing use was economically unviable. Considering also the increased demand for residential accommodation in the locality, causing upward pressure on rents and the removal from the area of long-term residents, he decided that the proposal was likely to have an adverse social effect in the locality. Taking this into account along with other relevant considerations under former section 90(1), the court rejected the application.

Is the site suitable for the development? [5.1440] The consent authority must consider in so far as is relevant "the suitability of the site for the development" (s 79C(l)(c)). In MCC Energy Pty Ltd v Wyong Shire Council [2006] NSWLEC 581, Jagot Jin the Land and Environment Court said (at [86]):

The phrase "suitability of the site for the development" operates at a high level of generality. Many facts may be relevant to questions of a site's suitability for various developments. Identifying those facts is a matter for the consent authority ... There may, for example, be safety factors associated with the land or it may be susceptible to flooding, subsidence, slip, contamination or bushfire. This may make development inappropriate or, at least, require that suitable precautions be taken. In Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121, Jagot Jin the Land and Environment Court held that the council had to consider the presence of an endangered ecological community on the site in determining its suitability for the proposed development. In MCC Energy, the Court considered a consultant's report on the suitability of the relevant site and said (at [87]): The report described the site and its surrounds and the development in the introduction. The report considered the topography of the site and concluded that the proposed development represented an appropriate response to the constraints imposed by the slope of the land and the existing dwelling erected upon the land. The report considered the coastal nature of the development and the importance of maintaining visual amenity of the coastline. It analysed the neighbourhood character. It addressed the context and setting of the development in detail. The report concluded that the additions were consistent with the theme, scale and height of many other developments in the surrounding area and allowed the appearance and quality of the dwelling to be considerably improved along with the Elizabeth Drive streetscape in general. All of these matters constituted a consideration of the suitability of the site for the development. The impact of the development must be looked at: for example, would the development prejudice future agricultural production on prime agricultural land, or future use for mineral and extractive resources? Constraints imposed by adjacent development should also be considered.

Case studies: Conflict between existing and proposed development [5.1450] In Concrite Pty Ltd v South Sydney City Council [2001] NSWLEC 22 7, Justice Talbot in the Land and Environment Court held that new development should be expected to accommodate the impact of existing lawful development on

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adjoining or nearby land. In that case, the court held that future residential development would need to take account of and accommodate the impact of a batching plant. In Inghams Enterprises Pty Ltd v Kira Holdings Pty Ltd (1996) 90 LGERA 68, the council was dealing with an application for a residential subdivision adjacent to a large-scale poultry processing plant. The Court of Appeal held that where there is a fundamental incompatibility between a proposed development and that on an existing adjacent property, and it cannot be resolved by appropriate conditions, the development should be refused. In McIntyre v Pittwater Council [2000] NSWLEC 160, Justice Talbot considered a proposed development, part for industrial purposes and part for medium density residential purposes, located within a 400 metre buffer zone for the Warriewood Sewage Treatment Plant. This existing facility had significant odour impacts on the surrounding area. The court found that the land was not suitable for medium density housing development while the potential for odour impact from such a proximate location existed. Accordingly, his Honour held that the part of the site identified for residential development was not suitable for the intensity of residential development proposed by the applicant, whereas the part proposed for industrial purposes could be approved subject to finalisation of appropriate conditions of consent. In reaching this conclusion, Talbot J emphasised (at [54]) that the Court was: mindful of its responsibility to ensure that development unsuited to a particular location is prevented wherever that is preferable. This is such a case. In principle the court should not be a party to the creation of a situation in which basically incompatible land uses are juxtaposed, thereby avoiding the prospect of future conflict.

Submissions [5.1460] The consent authority must take into consideration in so far as is relevant "any submissions made in accordance with this Act or the regulations" (s 79C(l)(d)) . The occasions when public submissions must be invited, including designated and advertised development and State significant development, are discussed at [5.970]-[5.1110]; [5.2700]. It goes without saying that a failure by the consent authority to take a submission into consideration will render the consent authority's decision void (Nambucca Valley Conservation Inc v Nambucca Shire Council [2010] NSWLEC 38).

Case studies: Objections Opposition to a mosque [5.1470] In New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154, the Land and Environment Court considered a development application to build a mosque that was the subject of many objections from local

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residents. The court held that when analysing public submissions, issues of taste and morality were not necessarily to be set aside when determining whether or not a development was appropriate (see Fairfield City Council v Liu Lonza & Beauty Holdings (unreported, NSW Court of Appeal, February 1997). Furthermore, the Court said that where a proposed development caused great offence to a large portion of the community, it could be legitimately refused on town planning grounds (see Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345; [2000] NSWLEC 188). Nevertheless, the Court held that while the views of those who made submissions must be taken into consideration, there must be evidence that could be objectively assessed before a finding could be made of an adverse effect on the amenity of an area. A fear or concern without rational foundation was not a matter that, by itself, could be considered as an amenity or social impact under section 79C(l) of the Act (see Newton v Wyong Shire Council (unreported, Land and Environment Court, NSW, McClelland J, 6 September 1983); Jarasius v Forestry Commission of NSW (1988) 71 LGRA 79; Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345; [2000] NSWLEC 188). The cCurt, on the facts before it, held that as there was no evidence to support a rational fear, it was irrelevant for the purposes of section 79C that members of the community might have modified their behaviour because of such an unjustified fear. Mobile telephone base station

In Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 Preston J considered a development application for the installation of telecommunications equipment and a base station on the roof of a local recreational club. The application was the subject of significant community objection. His Honour found that the objections had no rational basis in science and held that they should be given little, if any, weight under section 79C(l)(d). His Honour said (at [192] et seq): In determining the nature and scope of amenity and the impact of a proposed development on it, the consent authority may consider the community responses to the proposed development as set out in the submissions made to the consent authority: s 79C(l)(d) and (e) of the [Act]

However, in considering the community responses, an evaluation must be made of the reasonableness of the claimed perceptions of adverse effect on the amenity of the locality. An evaluation of reasonableness involves the identification of evidence that can be objectively assessed to ascertain whether it supports a factual finding of an adverse effect on the amenity of the locality ... A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(l) of the [Act] .. . "Mere local prejudice" or "the resistance of uninformed opinion to innovation" is not a basis for rejecting a proposal ... In this case, the residents' perceptions of an adverse effect on the health and safety of residents and on the environment by exposure to RF EME emitted from the proposed base station are without justification in

chapter 5 Development

[5.1490)

objective, observable, likely consequences. The claimed effects are unsubstantiated and without reasonable evidentiary foundation ... In these circumstances, little, if any, weight can be given to the residents' perceptions.

The public interest [5.1480) The consent authority must take into consideration in so far as is relevant "the public interest" (s 79C(l)(e)). The concept of public interest is wide, and, when considering it, it is legitimate to consider the ultimate use to which a site is to be put (Patra Holdings Pty Ltd v Minister For Land And Water Conservation (2001) 119 LGERA 231; [2001] NSWLEC 265; see also Shoalhaven City Council v Lovell (1996) 136 FLR 58). When determining planning policies, or the public interest, a consent authority is not confined to statutory planning instruments (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289).

Community response to a proposed development, for example, can be regarded as an aspect of public interest. One of the express objects of the EPA Act is to provide increased opportunity for public involvement and participation in environmental planning and assessment (Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402; New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 126 LGERA 303; Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10; Martin Morris & Jones Pty Ltd v Shoalhaven City Council [2012] NSWLEC 1280). As previously discussed, the court has held that the application of ecologically sustainable development principles is a relevant consideration as an aspect of the public interest (see [5.1350]). It has been held that the precedent effect of a proposed development is a valid planning consideration (Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75). Nevertheless, the court has been cautious in applying the principle of planning precedent because the Act requires that each development be assessed on its particular planning merits (s 79C(l)) .

Case study: Considering the public interest [5.1490] In Patra Holdings Pty Ltd v Minister for Land and Water Conservation

(2001) 119 LGERA 231; [2001] NSWLEC 265, Justice Pearlman held that in determining a development application for the clearing of native vegetation, the public interest was a crucial factor to take into account. That was because clearing resulted in the permanent loss of native vegetation. Whether or not that was a desirable consequence from an environmental and planning point of view depended on many factors, and the public interest was a significant one. Accordingly, when the consent authority (or the Court on appeal) decides whether to grant or refuse consent to the clearing of native vegetation, it must balance the public detriment (the permanent loss of native vegetation) against the public interest (the objects of the

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EPA Act and other relevant legislation). The public detriment resulting from the permanent loss of native vegetation had to be balanced against the public interest in promoting native vegetation management in the economic interests of the State and the orderly and economic use and development of land. Justice Pearlman held that the economic viability of the proposed use of the cleared land could only be considered as an element of the public interest in this sense. The profitability to the applicant of the proposed land use, on the other hand, was not a relevant consideration.

Development consents

(5.1530]

chapter 5 Development

King v Minister for Planning [2010] NSWLEC 1102; House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404; Auburn Council v Nehme [1999] NSWCA 383).

Reference to other documents to interpret o development consent [5.1520] Extraneous documents, such as the contents of the relevant development application, can only be relied upon to interpret a development consent where, and to the extent to which, they have been incorporated into the consent, either expressly or by necessary implication (Council of the City of Sydney v Pink Star Entertainment Pty Ltd [2008] NSWLEC 176; Owners Of SP 39204 v Sutherland Shire Council [2003] NSWLEC 255; Loreto NormanhurstAssociation Inc v Hornsby Shire Council [2002] NSWLEC 45; Woolworths Ltd v Campbells Cash & Carry Pty Ltd (1996) 92 LGERA 244; Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404; Auburn Municipal Council v Szabo (1971) 67 LGRA 427).

Determination of a development application [5.1500] Section 80(1) of the EPAAct authorises a consent authority to determine a development

application by:

• • •

granting consent unconditionally granting consent subject to conditions refusing consent. In practice, development consent is nearly always granted subject to conditions.

Section 81 of the EPA Act requires a consent authority, in accordance with the Regulation, to notify its determination to the applicant and those who made submissions if the subject development is designated development or State significant development. It has been held that it is the decision of the consent authority made under section 80(1) and not the notice of determination that constitutes the consent authority's determination of a development application: Kindimindi Investments Pty Ltd v Lane Cove Council (2007) 150 LGERA 333; [2007] NSWCA 38; Aldous v Greater Taree City Council (2009) 167 LGERA 13; [2009] NSWLEC 17. Development applications are frequently determined under delegation from the consent authority, particularly in the case of councils. In GPT Re Ltd v Wollongong City Council [2006] NSWLEC 303, the NSW Court of Appeal considered a development consent granted by the general manager of the Council under a delegation that authorised the general manager to approve the application but did not authorise him to refuse development consent. The Court held that the function of determining a development application required either an unconditional or conditional consent or a refusal of consent and that to delegate to the general manager a power to approve only was a limitation on the nature of the opinion that could be formed and inconsistent with the statutory scheme.

The nature of o development consent [5.151 0] A development consent creates a right that attaches to and runs with the land to which it relates (Wingecarribee Shire Council v Concrite Quarries Pty Ltd [2001] NSWLEC 97. See also

Deferred commencement consents [5.1530] Until amendments to the Act in 1993, the courts applied the general principle that all aspects of a development consent had to be final at the date the consent was granted. In some situations, where councils set conditions that, in essence, postponed consideration of substantial matters, the courts held that the decision did not amount to a consent because of lack of finality (Mison v Randwick Municipal Council (1991) 73 LGRA 349; Jungar Holdings v Eurobodalla Shire Council (1989) 70 LGRA 79; King v Great Lakes Shire Council (1986) 58 LGRA 366 at 384-385; Malcolm v Newcastle City Council (1991) 73 LGRA 356; Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61 at 84-55; Leichhardt Municipal Council v Minister for Planning (1992) 77 LGRA 64). Alternatively, the courts declared a particular condition to be void for lack of finality (Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13).

The Act now provides that a development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority as to any matter specified in the consent (s 80(3)). The Regulation requires such a consent to be clearly identified as a "deferred commencement" consent and to distinguish the conditions that must be satisfied from other conditions (cll 95(1), 95(2)) . The consent authority may specify a period in which the applicant must produce evidence sufficient to satisfy the consent authority about the deferred matters (cl 95(3)). The imposition of deferred commencement conditions does not free a consent authority from its obligation to consider all relevant matters required by section 79C (G PT Re Ltd v Wollongong City Council [2006] NSWLEC 303; Weal v Bathurst City Council [2000] NSWCA 88; Cameron v Nambucca Shire Council (1997) 95 LGERA 268). The legal effect of a deferred commencement condition is to suspend the operation of the development consent, not to make the grant itself conditional (CSR Ltd v Fairfield City Council [2001] NSWLEC 221. See also Bezzina Developers Pty Ltd v Leichhardt Municipal Council [2006] NSWLEC 175). In Captain Cook Cruises Pty Ltd v North Sydney Council [2002] NSWLEC 243, the court held that, under section 80(3 ), a consent authority can express a

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conditional or qualified satisfaction in respect of the deferred commencement condition. It also held that in such circumstances, the applicant can treat that decision as expressing dissatisfaction, and then has a right of appeal (see [5.2230]).

Case studies: Deferred commencement consent [5.1540] In Weal v Bathurst City Council [2000] NSWCA 8 8, the NSW Court of Appeal held that, where there is a deferred commencement consent, a consent authority must still consider all relevant matters as required by section 79C (see [5 .1240]). Earlier, in Design/ink International v Baulk ham Hills Shire Council [1999] NSWLEC 218, Talbot J explained that the mechanism provided by section 80(3) is that although the consent authority may be satisfied that an applicant for development consent is entitled to a consent, that consent is not to operate until some matter external to the subject matter of the consent is satisfied. It does not allow a deferral of the decision to grant consent. See also Remath Investments No 6 Pty Ltd v Botany Bay Council (No 2) (unreported, Land and Environment Court, 11 December 1996). Nevertheless, the range of matters that may be specified in a deferred commencement condition is potentially wide.

WRF Property Pty Ltd v Armidale Dumaresq Council [2003] NSWLEC 223 involved judicial review proceedings against the grant of deferred commencement consent for a proposed shopping centre. The site was located in the Dumaresq Creek floodplain. The applicant successfully challenged one of the conditions in the consent which required that prior to the commencement of construction the ' applicant undertake a flood analysis of the site. The analysis had to demonstrate how floodway capacity would be retained within the site such that the Dumaresq Creek flood level upstream and downstream were not affected by changes to site levels. Talbot J held that the issue was not just that the Council had failed to finally resolve the form of the development. More importantly, and indeed critically, the condition disclosed that the Council neglected to inform itself specifically about the effect on flooding capacity. The Court was satisfied that the challenged condition left a material matter for future determination without any process in place that will ensure the achievement of the underlying purpose of the condition. If additional flooding capacity was required then provision for that capacity needed to be identified, designed and specified as a condition of consent. Until that point was reached and the council was satisfied with the result, the operation of the consent was suspended pursuant to s 25B of the Land and Environment Court Act 1979.

Partial consents [5.1550] Development consent can be granted for the development for which the consent is sought or a specified part or aspect of the development (s 80(4) - Total or partial consent), and consent may subsequently be granted for the remainder (s 80(5)). Referred to as "staged development consent" prior to the 2005 amendments to the EPA Act, the procedures for staged development applications may also apply (EPA Act, ss 83A- 83D); see [5.780]).

[5.1570]

chapter 5 Development

Imposition of conditions (5.1560] As previously discussed (see [5.1200]), the consent authority's duty to consider relevant matters relating to a development application under section 79C of the EPA Act involves the duty to consider not only the impact and likely harm to the environment but available protective or mitigating measures through conditions attached to the consent (Weal v Bathurst City Council [2000] NSWCA 88; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23; Taralga Landscape Guardians Inc v Minister for Planning [2007] NSWLEC 59). In appropriate cases, for example, conditions should address the precautionary principle (see [1.220]). For example, in Taralga Landscape Guardians Inc v Minister for Planning [2007] NSWLEC 59, Preston CJ in the Land and Environment Court held that conditions based on the precautionary principle should be imposed on a wind farm development to ensure the taking of measures to deal with any occurrences of threatened flora or native grasslands if they were discovered subsequent to or during construction of the development.

Section BOA of the Act sets out the types of conditions that can be imposed upon the grant of a development consent. In Hilltop Planners Pty Ltd v Great Lakes Council (2003) 127 LGERA 333; [2003] NSWLEC 214 it was held that the grant of a development consent is the exercise of a statutory power and not a power at large (see Zhang v Canterbury City Council [2001] NSWCA 167) and the EPA Act limits the conditions that can be imposed (see also Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 85). In Hilltop, the Court held that a consent authority had no power to impose a condition under which a consent lapses because of failure to comply with the condition. The Regulation may set out conditions that must be imposed for particular developments (see [5.1620]). Conditions requiring contribution towards public amenities and services can only imposed under sections 94 and 94A (see [5.1890]).

Types of conditions [5.1570] The conditions which the consent authority can impose include (s BOA( 1) ):

• conditions relating to any matter referred to in section 79C(l) relevant to the development • conditions requiring the modification or surrender of a consent or an existing or "continuing use" right (see (5.420]-[5.560]) • conditions requiring the modification or cessation of development (including the removal of buildings and works) carried out on land (whether or not land to which the development application relates)

• conditions limiting the period during which development may be carried out • conditions requiring the removal of buildings and works at the end of the period during which development may be carried out • conditions requiring the carrying out of works (whether or not on land to which the application relates) relating to any relevant matter referred to in section 79C(l) • conditions requiring development contributions (see [5.1880]).

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A ncillary matters

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• shoring and adequacy of adjoining property.

!!~:~:OJ

A ~onsent can be granted subject to a condition that a specified aspect of the pmenr is to be earned out to the satisfaction of the consent authority or as ·f· d (s 80A(2)) Th' ll ·1 . pec1 1e person . is a ows counc1 s to determine the issues of substance in th d l matt f d ·1 l d . e consent an eave ers o eta1 (eg, an scapmg plans) to council officers. The conse t h · . · d · h. h' h 11 n aut onty can specify a P eno w1t m w IC an anci ary aspect must be carried out (cl 96).

Conditions requiring other means of enforcement [5.1630] Consent authorities sometimes attempt to reinforce development consents by imposing conditions that require other means of enforcement, such as deeds, agreements and covenants.

Standards or outcomes

Common law deeds and agreements

[5.1590) Conditions may specify (s 80A(4)):

[5.1640] In Kindimindi Investments Pty Ltd v Lane Cove Council (2007) 150 LGERA 333;

• outcomes or objectives that the development must achieve, and • clear criteria against which the achievement of utcomes must be assessed.

[2007] NSWCA 38, the Council had issued a development consent for a shopping centre near a school containing numerous conditions but not a requirement that a new drop-off facility be constructed to promote pedestrian safety in relation to the school. The requirement for the drop-off facility was included in a deed between the council and the developer. The Court of Appeal held that the consent should have contained a requirement for the construction of the drop-off facility. It was not properly contained in a private deed alone.

O

Provision of security [5.1600) A development consent may be granted b' .. may enter into an agreement with an I' hsu hJect to a cond1t10n, or a consent authority app icant, t at t e applicant must ·d · payment of the cost of (ss 80A(6) _ BOA(lO)): prov1 e security for the

• making ~ood any damage caused to any property of the consent authority • construction, completmg any public work (such as road work . . stormwater drainage d . ' kerbmg and guttermg, the consent

footway an environmental controls) required in connection with

• completed. remedying any defects in any such bl' pu

JC

k h . wor t at anse within six months after the work is

The security is to be for a reasonable amount as determined by th

h . e consent aut onty.

Reviewable conditions [5.1 610) Subections 80A(10B) _ (l0E) 11 " . consents. These are conditions that: a ows rev1ewable conditions" to be attached to

hours of operation (in add't' h .. •• mcrease .permit extended h . wn to ot er specified hours of operation) or t e maximum number of . . '

Covenants and easements [5.1650] Conditions requiring covenants are not uncommon. For example, a condition might require the registration of a covenant on title restricting a future change of use of a building or land (see [2.20]-[2.150]). The Land and Environment Court will generally not support the imposition of such conditions. It has expressed the view that the law already adequately provides for the enforcement of the provisions of development consents and therefore there is no need or justification for the imposition of a restrictive covenant (see Squadron Pty Ltd AFT Garrison Unity Trust v Wyong Shire Council [2007] NSWLEC 336; PDP (Darlinghurst Apartments) Pty Limited v City of Sydney Council [2005] NSWLEC 41; Macdonald v Mosman Municipal Council (1999) NSWLEC 215; S Y Holdings Pty Ltd v Warringah Shire Council (unreported, 15 April 1981); Carr v Gou/burn City Council (unreported, 21 June 1983); Lean Lackenby & Hayward Pty Ltd v Wollondilly Shire Council (unreported, 20 July 1994); Willoughby Municipal Council v Huxley Homes Pty Ltd [1989] NSWLEC 135).

J

· persons permitted m a building (' dd' · maximum number otherwise permitted) . m a 1t10n to the

They can be attached to uses of a building as . · d cu l b or restaurant (cl 124B(l)). an entertamment venue ' fu nc t'!On centre, pub, reg1stere A development consent that is granted sub·ect to . .. subject to a further condition that the conse t J h . a rev1e~able cond1t10n may be granted at intervals specified by the consent d thn ahut on~ may review that condition at any time or an at t e rev1ewabl econ d'itwn · may be changed on any such review (s 80A(10B)).

Prescribed conditions [5.1 620) Section BOA( 11) provides that a develo . . may be prescribed by the Regulation The . l dpm(enllt consent rs subiect to such conditions as . . · se me u e c 98 _ 98E): compliance with the Building Code of Au . . Home Building Act 1989 stra1Ia and msurance requirements under the

• • erection of signs

Case study: Time limited consent [5.1660] In Newton v Great Lakes Council [2013] NSWLEC 1248 the Land and

Environment Court considered the reasonableness of climate change related conditions of consent on land susceptible to coastal erosion. The first challenged condition limited development consent to a period of 20 years. It required that 60 days prior to consent expiry the owner's consultant undertake a review of applicable coastal controls and hazard predictions, including long-term recession and storm erosion data and projections. The review report and its recommendations were to be submitted for Council's consideration (for further consent) no later than 30 days prior to expiry. The reason cited by the Council for the imposition of this condition was "to allow reasonable expectation of development under current uncertainties in relation to beach renourishment and the resulting effective hazard lines." The second contested condition required the dwelling's footings and foundations to be designed and constructed to ensure continued support of the building structure consistent with the 2033 sea level rise conditions. This condition

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sought to ensure structural stability and safety and to avoid increased erosion of adjacent properties during a severe storm event. In relation to the first condition, the Court noted it effectively imposed two obligations on whosoever was the owner of the property in 2033. The first obligation, subject to reprieve by the second, was the obligation to cease using the dwelling at the time of expiry of the consent. The hope of reprieve lay in the second half of the condition whereby the Council held out the potential - subject to the then owners undertaking a coastal hazard study - of approval for some further occupation of the dwelling either on an indefinite basis or on some further time restriction. The Court therefore held that it was inappropriate to impose the first contested condition placing a time limit on the consent, primarily because it was so out of context with that imposed on the surrounding existing development. It emphasised however, that the removal of that condition made it essential that the second contested condition requiring appropriate precautionary standards to be applied in the construction of the footings for the dwelling be retained as a condition of consent.

Validity of conditions [5.1670] In order to be valid, a condition must:

• •

be authorised by the Act (and in particulars 80A(l)(a)), and satisfy the common law test of validity (ie the "Newbury test", discussed below).

See Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65; Community Association DP 270253 v Woollahra Municipal Council [2013] NSWLEC 184; Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313 The leading authority for the common law test of validity is the House of Lords decision in Newbury District Council v Secretary for the Environment [1981] AC 578; [1980] 1 All ER 731. It is the accepted test for determining the validity of consent conditions in NSW (see, for example, Building Owners and Managers Association of Australia Ltd v Sydney City Council (1984) 53 LGRA 54 at 68; Waverley Municipal Council v PE Bakers Pty Ltd (1985) 54 LGRA 309; Parramatta City Council v Peterson (1987) 61 LGRA 286; Richmond River Shire Council v Ramsey (1988) 66 LGRA 210 at 213; King v Bathurst Regional Council [2006] NSWLEC 505; Hill v Blacktown City Council [2007] NSWLEC 401; Dogild Pty Ltd v Warringah Council (2008) 158 LGERA 429; [2008] NSWLEC 53; Andrews v Botany Bay City Council [2008] NSWLEC 96; Botany Bay City Council v Ralansaab Pty Ltd [2010] NSWLEC 225).

• • •

In order to be valid under the Newbury test, a condition must:

be imposed for a planning purpose fairly and reasonably relate to the development for which permission is given not be so unreasonable that no reasonable planning authority would have imposed it.

It is important to remember that even if a condition is found to be legally valid- that is, within a council' s powers - the court may still, as a matter of discretion on a merit appeal, decide that it

[5.1690]

chapter 5 Development

should not be imposed. Apart from deciding questions of validity, the court can also hear appeals on the merits from developers who are not happy with council decisions (see [2.350]).

When is a condition for a planning purpose? [5.1680] In order to be for a planning purpose, a condition must be derived from the EPA Act and not preconceived general notions of what constitutes a planning purpose: Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245; Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63.

Several cases have dealt with the question of whether conditions are for a planning purpose. In Hill v Blacktown City Council [2008] NSWLEC 203, the Court considered a condition requiring the applicant to enter into a deed of release with the Planning Department preventing the applicant from seeking compensation for the acquisition of land. The condition was held to be for a planning purpose. Pain J considered, amongst other things, that the Growth Centres SEPP required the Department to consider the cost to the Department of acquiring the development site prior to granting its concurrence (see also Hill v Blacktown City Council [2007] NSWLEC 401). In Lean Lackenby & Haywood Liverpool Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 406, Pain J in the Land and Environment Court held that because there is no power in the EPA Act authorising the acquisition of land except by way of dedication under section 94 (see [5.1890]), there could be no basis for a condition requiring the applicant to dedicate land comprising a detention basin to the Council at no cost. The condition was held not to be for a planning purpose and therefore could not satisfy the first part of the Newbury test. However, in Valiant Timber & Hardware Co Pty Ltd v Blacktown City Council [2005] NSWLEC 747, Bignold J disagreed with Pain J (at [32]) on the basis that her Honour did not address the true question of power raised in that case, which was whether Council had power to grant approval to a section 96 modification application (see [5.2320]-[5.2420]). Bignold J held that pursuant to such an application, the Council did have power to impose such a condition of consent under section 96 of the Act.

The Court has also held that conditions are void if they require an indemnity to be given to the consent authority in consideration of the grant of development consent. Such conditions could not be classified as being made in the public interest as referred to in section 79C(l)(e) of the EPA Act, since no protection whatsoever is afforded to the public. In addition, they do not satisfy the requirement that they be imposed for a planning purpose (Hutchison 3G Australia Pty Ltd v Waverley Council [2002] NSWLEC 151 applying Galandon Pty Ltd v Narrabri Shire Council (1983) 51 LGRA 5).

When does a condition fairly and reasonably relate to the development? [5.1690] In order to satisfy the second test, a condition must not simply be justifiable as one which a reasonable planning authority could impose, but one which is fair and reasonable in the circumstances of the particular case (Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; Dogild Pty Ltd v Warringah Council (2008) 158 LGERA 429; [2008] NSWLEC 53). The fundamental consideration is whether there is a nexus between the condition proposed and the development for which consent is granted (Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65).

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In Parramatta City Council v Peterson (1987) 61 LGRA 286, Stein J held that this test is not answered simply by geographical proximity but rather by whether the development is benefited (see also McGregor v Bathurst City Council [1995] NSWLEC 71; Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313).

However, in Dogild Pty Ltd v Warringah Council (2008) 158 LGERA 429; [2008) NSWLEC 53, Biscoe J said that "it may not be inconsistent to envisage cases where a condition is fair and reasonable in the circumstances of a particular case ... even if it does not benefit the permitted development". In Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65, Craig J interpreted this statement to mean that there may be some circumstances in which the nexus between a condition and a development can be demonstrated by some means other than a benefit.

[5.1720]

chapter 5 Development

to the development. In the circumstances, the effect of the condition was that it amounted to either a refusal of the application or a failure to determine the application, and it was held that there had been no consent to the application. On the other hand, in Bullock, Walters and Assoc Pty Ltd v Eurobodalla Shire Council (unreported, Land and Environment Court, 26 March 1984), Cripps J upheld the validity of a condition that there should be a monetary contribution for the future construction of an arterial road for a proposed residential subdivision. The development would generate additional traffic in the area, even though many of the residents would not use the road on a regular basis and most of the anticipated traffic would have no connection with the subdivision.

Case studies: Imposing conditions

When is a condition unreasonable?

[5.1700] In St George Building Society v Manly Municipal Council (1982) 3 APA 370, the Council imposed a condition that required the developer to provide a pedestrian walkway across his land at all times. The existing development incorporated an arcade that gave pedestrian access between two streets. The Council wanted the developer to continue this arrangement, or a similar one, when the site was redeveloped. However, the land comprising the arcade belonged to the developer and there was no existing legally enforceable public right of way over it. The court decided on the merits that the condition was not one that should be imposed, and took the further step of holding that the condition was invalid. Although the condition was concerned with the existing and likely future amenity of the neighbourhood, and thus satisfied the first requirement of the test, it did not satisfy the second or the third. The development itself did not create any need for an arcade access. Indeed, the question of access was "wholly extraneous" to the proposed development. The condition, therefore, did not fairly and reasonably relate to the development. It was irrelevant that an arcade was presently provided because the public had no legal rights to use this arcade for access purposes. Apart from this, the court decided that the condition was so unreasonable that no reasonable council, properly advised, would impose it.

[5.1710] A condition must not be so unreasonable that no reasonable authority could have imposed it. This test is concerned with the test for unreasonableness ("manifest unreasonableness") expressed in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (see [2.450)).

In Dogild Pty Ltd v Warringah Council (2008) 158 LGERA 429; [2008) NSWLEC 53, the court considered a condition on an approval for a four storey residential and commercial development requiring the creation of a right of carriageway to the rear of the development site. Biscoe J held that the condition did not fairly and reasonably relate to the development. His Honour found that the development did not generate the need for the right of carriageway and public access and would not benefit from it. His Honour also considered that the condition caused significant private detriment due to the new and potentially heavy vehicular traffic and pedestrian flows. See also Pickwell v Ku-ring-gai Council [2005) NSWLEC 59 and Andrews v Botany Bay City Council [2008) NSWLEC 96. In Ben-Menashe v Ku-ring-gai Municipal Council [2001) NSWLEC 168, the court considered a condition of development consent for a Torrens title subdivision requiring strata subdivision. It was held that the condition could not be of relevance

In Pickwell v Ku-ring-gai Council [2005] NSWLEC 59, the court considered a condition on an approval for subdivision. The condition required the applicant to alter the terms of a drainage easement and to pay the Council's legal costs and disbursements for the checking of the documentation associated with the alteration of the easement. Lloyd J held that the condition was unreasonable because it required the applicant to accept an open-ended obligation to pay the Council' s legal costs. For recent cases in which the court declined to make a finding that a condition was unreasonable, see Westfield Management Limited v Perpetual Trustee Company Ltd [2006] NSWCA 245; Andrews v Botany Bay City Council [2008) NSWLEC 96 and Botany Bay City Council v Ralansaab Pty Ltd [2010) NSWLEC 225.

Uncertain or unenforceable conditions [5.1720] Conditions that are open-ended, uncertain or incapable of enforcement may be declared to be invalid. This was the case in Fairfield City Council v Holroyd City Council [1999] NSWLEC 122, where a development consent for a doctor's surgery to deal with emergencies was subject to a condition requiring the applicant to request authorities to improve facilities. The Land and Environment Court noted that the condition was expressed in the broadest terms and its fulfilment was dependent upon the cooperation of third parties. The court said that, treating it literally, the condition would be satisfied once the requests were made even though they might be refused or never fulfilled.

In Botany Bay City Council v Ralansaab Pty Ltd [2010) NSWLEC 225; Sheahan J considered a condition requiring the replacement of cables "within the road reserves and within the site". He held that the condition was uncertain because the "road reserves" were not identified in the consent.

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Status of invalid conditions [5.1730] A condition of development consent is valid and must be complied with until it is declared to be void by a court (Swadling v Sutherland Shire Council (1994) 82 LGERA 431; Hilltop Planners Pty Ltd v Great Lakes Council [2003] NSWLEC 214; Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 85). If a condition is imposed that is beyond the consent authority's powers, the authority may modify the consent under section 96 of the Act by amending or deleting the condition (see [2.2320)-(2.2420)), unless the consent, or a condition of the consent, is declared to be void. If the effect of the modification is to remove the cause of the suggested invalidity, there is no longer any basis for saying that the consent is void (Swadling v Sutherland Shire Council (1994) 82 LGERA 431. See also Smith v East Elloe Rural District Council [1956] AC 736 at 769-70; Calvin v Carr [1979] 1 NSWLR 1; [1980) AC 574; F Hannan Pty Ltd v Electricity Commission (NSW) (No 3) (1985) 66 LGRA 306; Ba/main Association Inc v Planning Administrator for Leichhardt Council (1991) 25 NSWLR 615). However, the qualification on this rule is that section 96 cannot be used where a consent is invalid because:

• of jurisdictional error • it lacks finality • it contains a condition that is not severable from the remainder of the consent.

See Association for Berowra Creek Inc v Minister for Planning [2003] NSWLEC 38. Invalidation of a condition of consent may also mean that there is no lawful consent to a development application if it falls under one of two overlapping circumstances:

• where a condition has the effect of "significantly altering the development in respect of which the application is made" • where a Council has purportedly granted consent, but in terms which lack either finality or certainty, so that there is, in substance, no effective consent to the application.

See Mison v Randwick Municipal Council (1991) 23 NSWLR 734; 73 LGRA 349; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277.

Severance of invalid conditions [5.1750] A court declaration that a condition is invalid does not mean that the developer can proceed and ignore the offending condition. The court may also find that the condition and the consent are so intertwined that if the condition is invalid, the consent should not stand and the whole question should be reopened. The developer, having reapplied for consent, then faces the risk that the council (and/or the court, on appeal) may decide that development consent should not be granted at all if the condition is absent.

This approach means that developers will be reluctant to challenge the validity of conditions, even when they appear to have a good argument. If they do make a challenge, they risk losing development consent altogether.

Case study: Condition not severable [5.1760] The case of Greek Australian Finance Corp v Sydney City Council (1974) 29 LGRA 130 was decided under the previous planning legislation. A condition requiring the developer to contribute to a fund established to provide for off-street parking was held to be invalid. In his development application, the developer had actually offered to contribute to the fund, but was clearly taken aback by the amount actually required and challenged the validity of the condition. The court then went on to hold that the condition could not be severed from the consent and, therefore, that the consent had no effect. The condition was "a fundamental element of the approval". The Council had never considered the possibility of no parking places and no contribution, and in these circumstances may well have wanted to reject the application outright.

Case study: Condition severable Case study: Significant alteration and lack of finality or certainty [5.1740] Two circumstances where invalidity of a condition may result in the voiding of a development consent are where the condition is held to permit significant alteration to the consent or lacks finality or certainty. In Mison v Randwick Municipal Council (1991) 23 NSWLR 734; 73 LGRA349, the contentious condition provided for the overall height of the subject dwelling house to be "reduced to the satisfaction of Council's chief town planner". On the facts, the height of the house was of critical importance yet the condition left the height for later determination without stating any criterion for its determination. In Levenstrath Community Association Inc v Tomies Timber (2000) 108 LGERA 176, a consent was declared void because of the absence of a condition limiting the production capacity of a sawmill which left uncertainty that operations might be altered in a way that changed the nature of the sawmill from development per se to designated development.

[5.1770] In Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455, the Court of Appeal considered a condition of consent requiring the dedication of an area of land to the Council free of cost. The condition was found to be invalid on the basis that it was not imposed in accordance with a contributions plan approved under section 94B of the Act (see [5.1990)). The Court held that the condition was severable from the consent in question because its deletion would not result in the balance of the consent operating in a manner different to that in which the whole would have operated and it was not fundamental to the proposed development. The Court relied on evidence that it was not the Council's intention to require the land to be dedicated to Council free of cost as the Council intended to use monetary development contributions required by conditions attached to related development consents to purchase the land.

Delay may also influence a developer's decision not to challenge the validity of a condition. In the Queensland case of Bayview Gardens Pty Ltd v Mu/grave Shire Council (1987) 65 LGRA 122, the developer had paid money voluntarily even

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though a condition requiring it to do so was invalid. The developer tactically chose not to challenge this condition directly, but failed in its attempt to obtain an order requiring the Council to repay the money (see also M J Davis Industrial Pty Ltd v Fairfield City Council [1999) NSWSC 829).

Certification of development [5.1780] The certification of complying development under the EPA Act has been discussed

([5.610)). The Act also provides for certification of some of the stages in development control. Under Part 4A- Certification of development - of the Act, the following certificates can be issued (ss 85A, 109C(1)):

• construction certificates • occupation certificates • subdivision certificates • compliance certificates.

These certificates - "Part 4A certificates" and complying development certificates under Part 4 of the Act - are generally issued by either private accredited certifiers or councils (ss 85A(1), 109D(l)). Private certifiers and council officers are accredited for this purpose by the NSW Building Professionals Board under the provisions of the Building Professionals Act 2005.

Construction certificates [5.1790] The erection of a building or subdivision work must not be commenced without a construction certificate (ss 81A(2)(a), 81A(4)(a)). If a construction certificate is not obtained, any work carried out is unlawful (Detala Pty Ltd v Byron Shire Council [2002) NSWCA 404 ).

A construction certificate certifies that work completed in accordance with the plans and specifications complies with requirements of the Regulation (ss 81A(5), 109C(l)(b)). These requirements include: compliance with any relevant BASIX certificate (cl 145(1)(a1)) (see [10.420))

• • • •

compliance with the relevant requirements of the Building Code of Australia (cl 145(1)(6)) compliance with conditions of development consent, including conditions requiring the payment of development contributions or the provision of security (cl 146), and ensuring that the design and construction of the building are "not inconsistent with" the development consent (cll 145(1)(a), 145(2)).

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When issuing construction certificates, certifiers are held to a position of public trust requiring the exercise of their professional judgment (Building Professionals Board v Cogo [2008) NSWADT 119; Barakat v Building Professionals Board [2009) NSWADT 5).

Consistency between construction certificates and development consent [5.1800] A certifying authority must not issue a construction certificate for building work unless

the design and construction of the building are "not inconsistent with" the development consent (cl 145(1)(a)). This contemplates some variation. The question of the consistency of the variation with the development consent is determined having regard to the individual circumstances (Lesnewski v Mosman Municipal Council [2004) NSWLEC 99). In Moy v Warringah Council [2004) NSWCCA 77, the Court of Criminal Appeal said that it should not be determined by reference to the "substantially the same" requirement in section 96 of the EPA Act as that test serves a different statutory function. Sperling J said (at [79)) that the function of the "not inconsistent" requirement is to ensure that the development as built will be in accordance with the development consent and that variations which infringe the limitations on development expressly or impliedly imposed by the development consent may be seen as "inconsistent with" the development consent. The development consent must be construed having regard to the objectives of the consent and its conditions. The overall construction of the consent should be rationalised in a practical and effective way where there are conflicting provisions (Baulkham Hills Shire Council v Dix [2004] NSWLEC 404). Recent case law in Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014) NSWCA 404 has shed further light on the issue of consistency between construction certificates and development consent. The development in question involved a major residential and commercial development project for which six construction certificates had been issued by a private accredited certifier which differed from the development consent, resulting in a building that was markedly different from that shown in the consent. The Court of Appeal held that the Land and Environment Court' s decision could not stand in relation to the finding that the construction certificates were not inconsistent with the development consent and not issued in breach of the EPA Regulation (cl 14 5 (1)) or the restrictions on the issue of construction certificates in the Act (s 109F(l)(a)). However, ultimately the Court declined to make ruling on whether the construction certificates were inconsistent with the development consent. What the Court did rule was that, even if it was established that the construction certificates were inconsistent with the development consent and issued in breach of s 109F(l)(a), this would not have invalidated the construction certificates. Instead, the breach should be dealt with as a disciplinary matter relating to the accredited certifier under the Building Professionals Act 2005. Leave to appeal this decision was refused by the High Court in June 2015.

Is a construction certificate part of development consent?

Construction certificates may be issued during progressive stages of development. The Act was amended in 2006 (s 109F(1A) inserted) to provide that a construction certificate has no effect if it is issued for building or subdivision work physically commenced on the land to which the relevant development consent applies. This modified the position adopted by the Court in Marvan Properties Pty Ltd v Randwick City Council [2005) NSWLEC 9, where Talbot J held that a construction certificate could be validly issued for work that had commenced (ie the construction certificate operated retrospectively).

[5.181 0] A construction certificate, once issued, together with any plans and specifications

accompanying it, is taken to form part of the relevant development consent (s 80(12)). Accordingly, compliance with the details certified by a construction certificate can be enforced because the development must be carried out in accordance with the development consent (s 76A(1)).

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Occupation certificates [5.1820] A development consent or complying development certificate that enables the erection of a building is sufficient to authorise the use of the building, when erected, for the purpose for which it was erected (s 81A(l)). However, subject to certain exceptions, it is an offence for a person to commence occupation or use of the whole or any part of a new building or a building subject to a change of use unless an occupation certificate has been issued (ss 109M, 109N).

An occupation certificate authorises the occupation and use of a new building, or a change of use for an existing building (s 109C(l)(c)). New building is defined to include an altered portion of, or an extension to, an existing building (s 109C(4)).

[5.1860)

A subdivision certificate must not be issued unless the certifying authority is satisfied of various matters (s 109](1)), including that a development consent or complying development certificate is in force and that the applicant has complied with all pre-conditions to the issue of the certificate. Where a subdivision involves subdivision work (see [5.140]), a subdivision certificate cannot be issued unless the certifying authority is satisfied that (s 109](2)):

• •

Preconditions for occupation certificates [5.1830] Certain preconditions must be satisfied before interim and final occupation certificates can be issued (ss 109H(3), 109H(5)). These are:

• that the certifying authority must be satisfied that a development consent or complying development certificate is in force in relation to the building • in cases other than where a complying development certificate is issued, that a construction certificate has been issued • that the partially completed building is suitable for occupation or use in accordance with its classification under the Building Code of Australia • that any requirements of the Regulation are first complied with.

Similar requirements apply in relation to the change of use of an existing building (s 109H(4), 109H(6)).

Exemptions [5.1840] It is not necessary to obtain an occupation certificate for occupation or use of a new building if (s 109M(2); cl 156):

• the erection of the building does not require development consent • more than twelve months have expired from the date on which the building was first occupied or used • the building is erected by or on behalf of the Crown • it is a temporary structure other than an entertainment venue. Subdivision certificates

[5.1850] A subdivision certificate authorises the registration of a plan of subdivision under the

Conveyancing Act 1919 (s 109C(l)(d)).

the work has been completed, or that agreement has been reached between the applicant for the certificate and the consent authority in relation to: - the payment or provision of security by the applicant to the consent authority for the cost of carrying out the work, and - when the work will be completed by the consent authority or the applicant.

An occupation certificate can be issued on an interim or final basis. An interim certificate relates to the occupation or use of a partially completed new building or a new use of part of an existing building. All preconditions to the issue of an occupation certificate that are specified in a development consent or complying development certificate must have been met (s 109H(1B)).

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Principal certifying authority [5.1860] Section 109£(1) provides that the person having the benefit of a development consent or complying development certificate for development involving building work or subdivision work must appoint a principal certifying authority for development. The erection of a building in accordance with a development consent must not be commenced until the principal certifying authority has been appointed (s 81A(2)(b)(i)). The principal certifying authority must notify the consent authority and council (if the council is not the consent authority) of his or her appointment two days before any building work commences (s 81A(2)(bl).

A principal certifying authority for building work or subdivision work is required by section 109E( 3) to be satisfied about various matters. These include:

• that a construction certificate or complying development certificate has been issued before building work or subdivision work commences on the site • that the principal contractor has a building licence and appropriate home warranty msurance, • that owner-builders have an owner builders permit • that building work or subdivision work on the site has been properly inspected by the •

principal certifying authority or another certifying authority before the principal certifying authority issues an occupation certificate or subdivision certificate for the building or work that any preconditions have been met if they are required by a development consent or complying development certificate before an occupation certificate or subdivision certificate is issued.

The principal certifying authority must assess and determine occupation certificate applications before the a new building is occupied or used (s 109D(2)). It must also assess and determine subdivision certificate applications before subdivision work is commenced (s 109D(3)). There is no general power of delegation by a principal certifying authority under the Act (Northern Residential Pty Limited v Newcastle City Council [2009] NSWLEC 10: this finding was undisturbed on appeal in Newcastle City Council v Northern Residential Pty Ltd [2009] NSWCA 141). However, the power to carry out critical stage inspections, and other inspections required by the principal certifying authority may be delegated in limited circumstances, but only to another certifying authority (s 109E(3)(d); cl 162A).

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Section l091 ~uthorises principal certifying authorities to issue notices requiring work to be carried out in circumstances in which an order under s 121B of the Act may be_ serv~d (see ]). A notice under section 1091 brings a breach to the attention of :hose actmg with the 5 2590 le.nefit of the consent or complying development certificate (s 1091(2)), havmg the same e~fect as a notice to be given of a proposed order (s 121H), and informs the owner, consent authority and local council (s 1091(3)).

Compliance certificates (5.1870] A compliance certificate certifies that (s 109C(l)(a)):

..

• specified building work or subdivision work has _b~en. completed as specified m the certificate and complies with specified plans and specificat10ns or standards, or • a condition attached to a development consent or complying development certificate has been complied with, or • a building or proposed building is classified in accordance with the Building Code of Australia, or • an aspect of development complies with the requirements of any other provisions prescribed by the Regulation, or . • an aspect of development (including design) complies with standards or requirements specified in the certificate. A compliance certificate issued by an accredited certifier can, for example, replace inspections of various stages of building work.

Development contributions (5.1880] Divisions 6 and 6A of Part 4 of the EPA Act deal with development contributions. They

contain provisions authorising: a condition of development consent requiring the payment of a mo_netary c_ontribu~ion o~ the dedication of land free of cost or the acceptance of a material public benefit m-heu towards the provision of local public amenities and public services to meet development (s 94

•

contributions)

• a condition of development consent requiring the payment of a flat percentage levy toward_s the provision of local public amenities and public services to meet development (s 9~A levies) • a condition of development consent to be imposed by the consent autho_r~ty at t~e direct10n • •

of the Minister requiring a development contribution towards the prov1s10n of mfrastructure in relation to development (s 94EF special infrastructure contributions) a voluntary planning agreement for the provision of development contributions to be entered into with a developer who seeks a rezoning of land or makes a development application (s 93F planning agreements) . a condition of development consent requiring land or contributions for affordable housmg (s 94F affordable housing contributions). The different development contributions mechanisms contained in those sections are discussed

below.

Section 94 contributions Scope of section 94 (5.1890] Section 94(1) of the EPA Act provides that if a consent authority is satisfied that

development is likely to require the provision of or increase the demand for public amenities and public services within the area, it can grant the development consent subject to a condition requiring the dedication of land free of cost or the payment of a monetary contribution or both. Such a condition can only require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services concerned (s 94(2)). A consent authority may also accept the provision of a material public benefit by a developer, such as works in kind or the provision of certain public amenities or services that are not scheduled within a contributions plan in lieu of the part or full payment of either a monetary contribution or the dedication of land that is required as a condition of development consent (s 94(5)). Section 94 is an exclusive code in relation to the imposition of conditions of development consent requiring monetary contributions or the dedication of land free of cost towards the provision of local public amenities and public services (Fitch v Shoalhaven City Council (1987) 671GRA 165). Section 94 sets out what is necessary before the dedication of land or a monetary contribution can be required. It also sets out the procedure for doing so. In Fitch, Stein J explained that section 94 explicitly makes special requirements before such conditions can be valid; these requirements are in addition to those under section 80A. In Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council [2006] NSWLEC 733, the applicants made an offer to pay money to the council towards the purchase of environmental conservation offset land. This was to be done through a condition of consent under section 80A(l)(a) (see [5.1560]) and, in the alternative, through a planning agreement (see [5.2110]). Jagot J said that section 80A(l)(a) is not a source of residual power to impose conditions requiring payment of money outside the scheme of section 94. On the facts, a condition requiring the payment to be made was not authorised under section 94. See also MLC Properties v Camden Council (1997) 96 1GERA 52; Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning [2000] NSW1EC 20. The NSW Court of Appeal held in Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41 that it would be unwarranted to extend the exclusive scope of section 94 beyond conditions that require the payment of a monetary contribution or the dedication of land free of cost to the consent authority. The Court considered two conditions of development consent requiring roadworks to be undertaken adjacent to the land concerned. Those conditions had been imposed under what is now section 80A(l)(f), which permits a condition requiring the carrying out of on-site or off-site works relating to any matter referred to in section 79C(l) applicable to the development. The Court, in upholding the validity of the conditions, held that section 94 did not deny a council the power to impose a condition of consent requiring the developer to undertake work offsite at their own expense simply because the work might or would benefit the public. In Dogild Pty Ltd v Warringah Council (2008) 158 1GERA 429; [2008] NSWLEC 53, Biscoe J held that a condition imposed by the Council requiring the creation of a right of carriageway over a private lane at the rear of the development site was not imposed in breach of the exclusive power in section 94 as it did not require the dedication of land to the public. In its

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terms, the condition granted a right of way to other properties, not to the public even though the reason given by the council in the consent for the imposition of the condition was "to ensure public access over the laneway". In addition to the limitation imposed by Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41, in Peter Duffield and Associates Pty Ltd v Canada Bay City Council [2002] NSWLEC 168 the Land and Environment Court held that a contribution under section 94 could only be required as a condition on the grant of a development consent. It could not be required on a modification application under section 96 (see [5.2320]). This does not mean, however, that a section 94 condition cannot be modified under section 96 (Arkibuilt Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 502). In Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313, the NSW Court of Appeal held that, to be valid, a section 94 condition must satisfy the test of future need and the Newbury test (see [5.1670]).

Case study: Requirement for valid development contribution conditions [5.1900] In Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning

[2000] NSWLEC 20 the applicant challenged the validity of provisions of an LEP and DCP requiring development contributions for the provision of affordable housing in the Green Square urban renewal area. The applicant was successful on three grounds: Development contributions must have a purpose authorised by the EPA Act, and the challenged provisions did not conform to the objectives of the EPA Act (s 5). The power to impose a contribution as a condition of development consent is exclusive to s 94. In this case, a contribution towards affordable housing was held to be invalid because its purpose was to achieve a social objective (the provision of affordable housing) which was not contemplated by s 94. The EPA Act did not contain express provisions permitting the acquisition of property without compensation, as envisaged by the challenged provisions. Further, any condition imposed in reliance on those provisions would be manifestly unreasonable in the Wednesbury sense (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223) since such conditions would represent an "oppressive" or "gratuitous" interference with property rights. Prior to, and consequent to, judgment being handed down in this matter, amendments were made to the EPA Act. These added affordable housing as an object of the Act (s 5(a)(viii)), included affordable housing in the contents of an EPI (s 26(1)(d)), and enabled the imposition of conditions requiring contributions to be made for the purpose of providing affordable housing where that need has been identified by a SEPP (ss 94F and 94G). The legislation also validated existing consents and temporarily validated the affordable housing provisions of affected statutory instruments, and removed the potential for compensation to be claimed in relation to consents granted under affordable housing schemes. State Environmental

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Planning Policy No 70 - Affordable Housing (Revised Schemes) ("SEPP 70") was subsequently gazetted in 2002 to extend the validation of existing affordable housing schemes and to amend their operation to align with sections 94F and 94G of the Act.

Within the local government area [5.191 0] If there is a requirement for land to be dedicated or money contributed under a section 94 condition, it must only be for the purpose of providing or increasing public amenities and public services (s 94(2)) in the local government area concerned (Parramatta City Council v Peterson (1987) 61 LGRA 286; Russo v Burwood Municipal Council (unreported, NSW Court of Appeal, 25 November 1996); Lismore City Council v Richmond Valley Council [2003] NSWLEC 295).

Public amenities and public services [5.1920] Public amenities and public services are not defined in the Act except to exclude water

supply and sewerage services (s 93C). In Stockland (Constructors) Pty Ltd v Shel/harbour Council [1996] NSWLEC 123, Stein Jin the Land and Environment Court accepted an argument by the Council that a building or facility can provide a public amenity or public service without the public having access to the facility or building as of right. His Honour said that what is important is the public benefit provided by or from the facility, not necessarily its physical accessibility to the public: so long as a facility is operated or used for the benefit of the public, it provides a public service or public amenity (see also Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313). Public amenities and public services would typically include things such as:

• open space • a wide range of community facilities such as childcare and youth centres • landscaping • carparks • drainage works • public roads and traffic management measures • pedestrian and vehicle overbridges.

In Arkibuilt Pty Ltd v Ku-Ring-Cai Council [2006] NSWLEC 502, Jagot J held that a childcare centre to be operated for the benefit of the public (whether or not all members of the public will or may make use of the centre) fell within the scope of section 94. In Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council [2006] NSWLEC 733, Jagot J seemed prepared to accept that a monetary contribution to the Council towards the cost of purchasing environmental conservation land would also fall within the scope of section 94 (see also Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313, which concerned an environmental conservation corridor) .

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Water and sewerage [5.1930] Section 94 does not apply to water supply or sewerage services (s 93C). However,

before issuing a certificate of compliance for development, councils have the power under the Water Management Act 2000 to require the payment of a contribution towards the cost of existing or projected works (including water mains and headworks, sewer mains and sewage treatment works, drainage channels and ancillary works) or to require the developer to construct such works (Division 5 of Part 2 of Chapter 6). In calculating the amount to be contributed, the value of existing works and the estimated cost of projected works may be taken into consideration, and the amount of any Government subsidies is not to be deducted.

Need for public facilities [5.1940] The operation of section 94(1) involves a prediction about the future need for public facilities to meet development the subject of a development application (Broker Pty Ltd v Shoalhaven City Council (2008) 164 LGERA 161; [2008] NSWCA 311). Before it can impose a condition of development consent requiring a contribution or dedication, the consent authority must be satisfied that the development will or is likely to require the provision of, or increase the demand for, public amenities and public services in the area (s 94(1)). In Lake Macquarie City Council v Hammersmith Management Pty Limited [2003] NSWCA 313, Tobias JA explained the effect of the statutory test as follows (at [41]):

Both statutory phrases - "require the provision of" and "increase the demand for" require the decision-maker to focus on the particular development and to then ask what types of public amenities or public services that development will or is likely to require the provision of or increase the demand for. The Council's approach concentrates on the identification of a particular public amenity or public service and then asks whether the particular development is capable of benefiting from it. This, in my opinion, shifts the emphasis from that which was intended ... The Court accepted that the test is one of "demonstrated need" in the sense that it is necessary for the consent authority to demonstrate that the particular development would generate a need for the relevant public amenities and public services when implemented. As Tobias JA explained (at [44]), the concept of need covers both "requiring provision" and "increasing demand for". The Court held that whenever a condition is imposed under section 94(1), the consent authority must have evidence available that justifies the prediction about future need. The point in time to assess the likely demand for public amenities and public services is at the time the development consent is granted (Meriton Apartments Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 776; Toadolla Co Pty Ltd v Dumaresq Shire Council (1992) 78 LGERA 261). There must be a definite and rational basis of assessment (Quota Corporation Ltd v Leichhardt Municipal Council (1981) 45 LGRA 319; Building Owners and Managers Association of Australia Ltd v Sydney City Council (1984) 53 LGRA 54; Frevcourt v Wingecarribee Shire Council (1993) 80 LGERA 75; Toadolla Co Pty Ltd v Dumaresq Shire Council (1992) 78 LGERA261).

Where facilities hove already been provided [5.1950] The Act provides that if (s 94(3)):

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• a consent authority has already provided public amenities or public services within the area in preparation for facilitating development, and • the proposed development will benefit from the provision of those public amenities or public services, the consent authority may grant the development consent subject to a condition requiring the payment of a reasonable monetary contribution towards recoupment of the cost of providing the public amenities or public services. In Allsands Pty Ltd v Shoalhaven City Council (1993) 78 LGERA 435, the Court of Appeal held that the reference to "cost" in section 94(3) was a reference to the actual historic amount of money the Council paid out at the time for capital costs, not an amount worked out by taking present day cost and discounting it, or by applying an index to historical cost. It did not include any government subsidies, such as those provided for the construction of waterworks. However, subsequent amendments to section 94 and the Regulation permit the recovery of costs indexed in accordance with the Consumer Price Index (cl 251).

Reasonableness [5.1960] A section 94 contribution must be "reasonable" (ss 94(2), 94(4), 94B(3); Trehy v

Gosford City Council (1995) 87 LGERA 262). In Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313, the Court of Appeal said that the requirement in section 94(2) that a condition is to be imposed only for the reasonable provision, extension or augmentation of public amenities and public services is not to be confused with the third limb of the Newbury test. The concept of reasonableness is not a precise one, and it allows councils and the courts a great deal of flexibility. In the past, one issue has been whether the service or amenity must be connected to the development, not only in the sense that the development has created a need for it, but also that it is located close to the development. Demanding a connection in this second sense makes absolutely no sense in planning terms (see Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313 ).

Case studies: Conditions relating to development [5.1970] In Parramatta City Council v Peterson (1987) 61 LGRA 286, Stein J applying the test of whether a condition fairly and reasonably relates to the permitted development (see [5.1690]), made it clear that the question was whether the development benefited from the public amenity provided, not simply whether it was close by in geographical terms.

In this case, the council proposed to spend the contribution on a carpark situated about 800 metres away from the development site and on the opposite side of a railway line. The judge held that such a condition could be valid even though there was no "direct connection" geographically between the development and the carpark, provided that the facility was located in the council's local government area. The Parramatta central business district had to be looked at as an integrated

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whole. By alleviating the parking problem throughout the area, the proposed parking station would in fact benefit this particular site. In Collin C Donges and Associates Pty Ltd v Baulkham Hills Shire Council (1989) 67 LGRA 370, Stein J followed his decision in Parramatta City Council v Peterson (1987) 61 LGRA 286 in holding that extractive industry could be required to pay a monetary contribution towards the maintenance, repair and reconstruction of particular classified main roads within the council's boundaries, even where the roads provided a regional facility. However, in Richmond River Shire Council v Ramsey (1988) 66 LGRA 210, the Court of Appeal struck down a condition that required a contribution to the "upgrading of the shire road network generally", because there was no nexus with the proposed agricultural subdivision.

Capitol and recurrent costs [5.1980] The Court of Appeal has held that cost recoupment for facilities previously provided only applies to capital cost, plus interest paid, and indicated that this approach applied generally to section 94 contributions (Allsands Pty Ltd v Shoalhaven City Council (1993) 78 LGERA 435). An exception has, however, been recognised in relation to road maintenance, repair and reconstruction, where the likelihood of excessive wear and tear by heavy vehicles associated with the proposed development has been established (Collin C Donges and Associates Pty Ltd v Baulkham Hills Shire Council (1989) 67 LGRA 370; Capital Quarries Ltd v Gunning Shire Council (unreported, Land and Environment Court, 14 August 1989); EH and PH Clifford Pty Ltd v Scone Shire Council (1988) 65 LGRA 391).

Accountability: contributions plans Requirement for contributions plan [5.1990] Subject to any relevant direction by the Minister, a council may impose a condition under section 94 only if it is of a kind allowed by a contributions plan and is determined in accordance with the provisions of that plan (s 94B(l)). Contributions plans govern the levying and expenditure of section 94 contributions and are a key accountability mechanism. However, in the case of a consent authority other than a council, the consent authority may impose a condition under section 94 even though it is not authorised by a contributions plan but only if, before imposing the condition, it has regard to any applicable contributions plan (s 94B(2)).

The limitation imposed on councils by this requirement has been interpreted strictly by the courts (see Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455; Trehy v Gosford City Council (1995) 87 LGERA 262). Accredited certifiers are bound by contributions plans when determining applications for complying development certificates, notwithstanding that the wording of the Act is somewhat awkward in this regard (ss 85A(9), 94EC; Broker Pty Ltd v Shoalhaven City Council (2008) 164 LGERA 161; [2008] NSWCA 311).

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The Planning Department has produced practice notes providing advice on the preparation of contributions plans. Considerable emphasis is placed on the need to establish a connection between the proposed development and the need for increased amenities and services.

Power of the Land and Environment Court [5.2000] The Court can disallow or amend a section 94 condition on appeal because it is unreasonable, even if it was determined in accordance with the relevant contributions plan (s 94B(3)) . This power does not authorise the court to disallow or amend the contributions plan.

Section 94B(3) addresses the need to ensure that the Court is not bound in the same way as the council by the contributions plan in appeals under section 97 (see [5.2230)-(5.2280]). This is to permit disputes over the reasonableness of contributions to be properly adjudicated by the court (Arncliffe Development Pty Ltd v Rockdale City Council [2003] NSWLEC 297) . This means that if the court amends a condition on appeal, it may well produce a different outcome from the condition mandated or permitted by the plan (Rose Consulting Group v Baulkham Hills Shire Council [2003] NSWCA 266; Trehy v Gosford City Council (1995) 87 LGERA 262). In Rose Consulting, the NSW Court of Appeal held that section 94B(3) gives the Court on appeal a broader discretion than that of a council in amending an unreasonable condition so it is no longer unreasonable even if no longer permitted or mandated by the contributions plan.

Preparing a contributions plan [5.2010] A contributions plan can cover the whole or part of a council area, and can relate to one or more public amenities or services (cl 26(2)). It must include, among other things (cl 27):

• the relationship between the expected types of development in the area and the demand for additional public amenities and services • formulas to be used for determining contributions • contribution rates for different types of development • if the plan authorises the imposition of a fixed development consent levy (ie s 94A

condition), the percentage of the levy, if the percentage differs for different types of development, and indexing of the calculation of the proposed cost of carrying out development

• a works schedule of the specific public amenities and services proposed, and an estimate of their cost and staging.

Thus the proposed public amenities and services should be specified (cl 27(1)(h)). See also Easeport Pty Ltd v Leichhardt Municipal Council [2001] NSWLEC 2, where the Land and Environment Court held that this requirement would be satisfied by denoting the type, kind or category of amenities. The council must prepare a draft contributions plan and place it on public exhibition for comment (cl 28). After considering any submissions, the council may approve the plan, with or without alterations, or decide not to proceed with it. It must give public notice of its decision within 28 days (cl 31) . The validity of the procedures involved in making or approving a contributions plan cannot be questioned in any legal proceedings unless they are commenced within three months of the date

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on which the plan came into effect (s 94EB(3)). However, it has been held that this does not apply to challenges to the validity of the content of a plan (Easeport Pty Ltd v Leichhardt Municipal Council [2001] NSWLEC 2).

Accountability: holding and applying contributions [5.2020] Monetary contributions are to be held in accordance with the conditions of a

development consent or with a planning agreement for the purpose for which the payment was required, and the money is to be applied towards that purpose within a reasonable time (s 93E(l)). Money that is paid for different purposes in accordance with the conditions of development consents may be pooled and applied progressively for those purposes, subject to the requirements of any relevant contributions plan or Ministerial direction (s 93E(2)). A contributions plan must not contain a provision that authorises monetary section 94 contributions paid for different purposes to be pooled and applied progressively for those purposes unless the council is satisfied that the pooling and progressive application of the money paid will not unreasonably prejudice the carrying into effect, within a reasonable time, of the purposes for which the money was originally paid (cl 27(3)). Land dedicated in accordance with a condition of development consent or planning agreement is to be made available for the purpose for which the dedication was required and within a reasonable time (s 93E(3)). In Levadetes v Hawkesbury Shire Council (1988) 67 LGRA 190, the Land and Environment Court held that the Council had failed to expend the relevant monetary contributions within a reasonable time. Holland J said that the locality in question was very small and "particular", the nature of the task to be performed was very simple and uncomplicated and the range of possibilities to achieve the objectives were very limited. These facts led inevitably to the conclusion that a relatively short time for applying the contributions would be reasonable. His Honour acknowledged that the facts in Levadetes were different from many situations where a council has a fund for the provision of parking at strategic places in its area which is gradually accumulated by contributions received from different developers and from which those developers benefit by being relieved of the need to use part of their own sites to provide parking. Here the council may reasonably expect to be free to apply contributions from the fund over a period of time in accordance with appropriate planning. In such a case a reasonable time for applying the funds may be quite long. In Idameneo (No 9) Pty Ltd v Great Lakes Shire Council (1990) 70 LGRA 27, Cripps CJ in the Land and Environment Court considered that a reasonable time would have been a relatively short period in circumstances where a monetary contribution in lieu of carparking had been levied in connection with a development containing six retail shops that was completed within a year or so of the development consent being granted. However, compare Wallis & Moore Pty Ltd v Sutherland Shire Council [2005] NSWLEC 397, where Cowdroy J in the Land and Environment Court held that a period of more than 20 years was a reasonable time in the particular circumstances.

The Court of Appeal in Frevcourt Pty Ltd v Wingecarribee Shire Council [2005] NSWCA 107 held that the terms of the conditions of consent and the contributions plan that is in force at the time consent is granted are relevant to the council' s application of the contribution. There is nevertheless a limited discretion as to how section 94 contributions can be spent; it depends on the wording of the relevant contributions plan and the facilities or services in question. The actual

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wording of the development consent condition is also relevant in considering what the council's obligations are in each case. However, a council has a duty to apply the contributions towards the relevant public amenity only to the extent that it is consistent with the proper exercise of the council's statutory functions (Engadine Area Traffic Action Group Inc v Sutherland Shire Council [2004] NSWLEC 264; see also Denham Pty Ltd v Manly Council (1995) 89 LGERA 108). In addition, if costs have increased between the time the contributions were collected and the time they were applied, not all the public amenities and public services identified in a contributions plan must be built if it is no longer possible to build the same number or extent of facilities from the contributions collected. However, if it is proposed to reduce or substitute the works for which contributions were levied, this must be authorised by an amendment to the relevant contributions plan (Frevcourt Pty Ltd v Wingecarribee Shire Council [2005] NSWCA 107). The council is entitled to spend money obtained under section 94 before the development to which it relates has commenced (Denham Pty Ltd v Manly Council (1995) 89 LGERA 108). Where the condition is designed to recover costs incurred, it must be used to pay off any debts that remain.

If these requirements are not met, any person may bring proceedings in the Land and Environment Court under section 123 of the Act (see [2.880]), and the Court can make an appropriate order to remedy or restrain the breach. Can section 94 contributions be refunded? [5.2030] One question that frequently arises is whether a council can refund monetary contributions, or can be required to do so. The Court has held that a council could make a voluntary refund of money in accordance with its obligations under section 94 if it was satisfied that the purpose for which the contributions were collected could not, or need no longer, be fulfilled (Engadine Area Traffic Action Group Inc v Sutherland Shire Council [2004] NSWLEC 264; Frevcourt Pty Ltd v Wingecarribee Shire Council [2003] NSWLEC 206). Although Pain J held in Frevcourt v Wingecarribee Shire Council [2005] NSWCA 107 that there were very limited circumstances in which the Land and Environment Court could make an order to refund section 94 monetary contributions, on appeal, the Court of Appeal doubted whether a refund is available as a form of relief under section 124 of the Act (Frevcourt Pty Ltd v Wingecarribee Shire Council [2005] NSWCA 107).

Accountability: Record keeping [5.2040] Councils must keep accounting records that enable monetary contributions under section 94 to be distinguished from other money they hold (cl 35(1)). The accounting records must indicate: the various kinds of public amenities or services for which expenditure is authorised by the relevant section 94 contributions plan

• • the monetary section 94 contributions received under the plan by reference to the various kinds of public amenities or services for which they have been received • the pooling or progressive application of section 94 contributions for different purposes • the amounts spent in accordance with the plan, by reference to the various kinds of public amenities or services for which they have been spent.

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Details of money received and spent under contribution plans must be reported in annual financial reports (cl 35(3)) and annual statements on contribution plans (cl 36). Details of conditions imposed under section 94 are to be recorded in a public register (cl 34(1)). The register must contain:

• • • •

particulars sufficient to identify each development consent for which a condition has been imposed the nature and extent of the section 94 contribution required for each public amenity or service the contributions plan under which the condition was imposed the date on which the section 94 contribution was received.

Section 94 conditions imposed by the Minister qr Secretory [5.2050] If the Minister or Secretary is the consent authority, a section 94 condition can be

imposed (s 94D(l)) where the land in question is:

• •

within a growth centre established under the Growth Centres (Development Corporations) Act 1974, or within a single local council area.

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This power was, for a while, used to prevent section 94 contributions being levied on housing for older people and people with a disability under the former SEPP 5 (see [3.550]). In recent years, the Minister has issued directions in relation to the following:

• • •

capping the amount of section 94 contributions for residential development (4 June 2010, 16 September 2010 and 4 March 2011) social housing (14 September 2007) Building the Education Revolution Program (15 September 2009).

Section 94A levies What ore section 94A levies? [5.2070] A consent authority can grant development consent subject to a condition that the consent authority will be paid a levy, authorised by a contributions plan, on the proposed cost of carrying out the development (s 94A(l)). A contributions plan that authorises a section 94A levy must specify the type or area of development for which a section 94A levy may be imposed, and must exclude the application of section 94 in such cases (s 94EA(2)).

Restrictions similar to those that apply to councils levying and spending section 94 contributions apply, except that in this case a council's contributions plan is not binding. The Minister or Secretary must have regard to the contributions plan (s 94B(2)(b)) but may impose a condition even though it is not in accordance with the plan (s 94B(2)(a)).

A consent authority is prohibited from imposing conditions under both section 94 and section 94A on the same development consent (s 94A(2). If a condition requiring a section 94A levy is imposed in accordance with a contributions plan, section 94B(4) precludes an appeal against it to the Land and Environment Court. A condition imposed under section 94A is not invalid because there is no connection between the development and the object of the expenditure of the levy (s 94A(4)).

The Minister or Secretary are required to pay monetary section 94 contributions to the deyelopment corporation of the relevant growth centre or to the council of the area concerned (s 94D(3)).

The maximum amount

Ministerial directions [5.2060] Section 94E(l) authorises the Minister to give directions to a consent authority in relation to various section 94 matters. These include:

• • • • • •

the public amenities and public services in relation to which a condition under section 94 may be imposed the way in which monetary section 94 contributions are calculated and the maximum amount of the contribution the things that may or may not be accepted as a material public benefit the type or area of development in respect of which a condition under section 94A may be imposed the use of monetary contributions for purposes other than those for which they were paid the preparation of joint contributions plans by two or more councils.

A Ministerial direction is binding on the consent authority (s 94E(2)) and overrides other provisions of Division 6 of Part 4 of the EPA Act and the provisions of a contributions plan (s 94E(3)).

[5.2080] Clause 25K of the Regulation sets out the maximum percentages of the proposed cost of carrying out development that may be imposed by a levy under section 94A. The percentages specified in this clause are subject to any Ministerial direction issued under s 94E(l)(d) of the Act. Any such direction may indicate the maximum percentage of a levy under section 94A for different cost and type of development and development in respect of which such a levy cannot be applied.

Estimating development cost [5.2090] The Regulation provides how the estimated development cost is to be determined

(cl 25J). The costs and expenses incurred by the applicant the consent authority can take into account include those incurred in (cl 25J(l)):

• • • • •

erecting any buildings, with the associated costs of preparing the site for demolition excavation, decontamination or remediation of the site changing the use of the land if the development requires it subdividing the land and preparing, executing and registering the plan of subdivision and any covenants or easements. A consent authority cannot take into account any of the following factors (cl 25J(3 )): the price paid for the land to be developed

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the costs associated with repairing any buildings that are to be kept as part of the development the cost of marketing or financing the development

• the cost of legal work • any project management costs • the cost of building insurance • any costs of furnishings, fittings or refurbishment associated with the development • the costs of commercial stock inventory • any taxes, levies or charges paid in connection with the development • costs of enabling access to the development by disabled persons • costs of energy and water efficiency measures • cost of any development that is provided for affordable housing • cost of any development that is the adaptive reuse of a heritage item. The section 94A levy is similar to, but not the same as, the levy system authorised by section 61 of the City of Sydney Act 1988, which has operated in central Sydney for a number of years.

Accountability [5.2100) The provisions of the Act relating to holding and spending money and to the

requirements for a public register, accounting and annual statements apply to section 94A levies in essentially the same way as they do to section 94 contributions (cl 35; see [5.2040]).

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A consent authority cannot refuse to grant development consent on the ground that a planning agreement has not been entered into in relation to the development (s 931(2)). However, if a draft agreement has been prepared, it must be considered by the consent authority in determining whether to grant consent (s 79C(l)(a)(iiia)). The consent authority can even grant consent subject to a condition that a planning agreement is entered into, but only if the agreement is in the terms of the developer's offer to the consent authority (s 931(3)). This is an important requirement because it imposes the element of compulsion under the law necessary for the parties to avoid liability for GST for supplies under a planning agreement. In Progress and Securities Building Pty Ltd v Burwood Council (No 2) [2008] NSWLEC 135 Jagot Jin the Land and Environment Court held that a consent authority could impose such a condition not only when development consent is originally given but also on the approval of an application to modify a development consent under section 96 of the EPA Act (see [2.2320]-[2.2420]).

What is a public purpose? [5.2120) Public purpose is defined in section 93F(2) to include the provision of, or the recovery of the cost of:

• public amenities and public services (see [5.1920]) • affordable housing and transport or other infrastructure • the funding of recurrent expenditure relating to those things • monitoring the planning impacts of development • the conservation or enhancement of the natural environment. What must a planning agreement contain?

Planning agreements [5.2110) A planning agreement is a voluntary agreement or arrangement entered into between a

planning authority (such as a local council, the Minister or specified public authorities: s 93C) and someone who seeks a change to an EPI or proposes to make a development application (s 93F(1)). Under a planning agreement, the developer agrees to make development contributions towards a public purpose through monetary contributions, the dedication of land free of cost or the provision of material public benefits to the relevant planning authority (s 93F(1)). The nexus principle that applies to section 94 contributions does not apply to planning agreements (s 93F(4)). Planning agreements are intended to be entirely voluntary. A provision of an EPI has no effect (s 931(1)) if it:

• requires a planning agreement to be entered into before a development application is made or determined, or • prevents a development consent from being granted unless a planning agreement is entered into.

[5.2130) Section 93F(3) sets out the mandatory provisions of planning agreements. These

include:

• provisions specifying the relevant land, and the change to an EPI or development application to which the agreement relates • the nature and extent of development contributions to be made under the agreement • dispute resolution and enforcement mechanisms. The obligation to perform an agreement will ordinarily arise when the development to which it relates is commenced.

Relationship with sections 94 and 94A [5.2140) A planning agreement can exclude wholly or partly the application to development of

sections 94 or 94A of the EPA Act (s 93F(5)). If a section 94 contribution is required, any planning agreement that has also been entered into must ordinarily be taken into account in determining the contribution (s 94(6)), but the agreement can provide otherwise (s 93F(6)).

Accountability and safeguards [5.2150) There are a number of important accountability and safeguard mechanisms relating to planning agreements.

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Affordable housing contributions

[5.2160) Money paid under a planning agreement must be applied within a reasonable time for the purpose for which it was paid (s 93E(l)).

What a planning agreement cannot do [5.2170) A planning agreement cannot impose an obligation on a consent authority to grant development consent or to a change an EPI (s 93F(9) ). Nor can a planning agreement constrain a council's power to amend an LEP.

In Rozelle Village Pty Ltd v Leichhardt Municipal Council [2015] NSWLEC132 an LEP had been amended in 2008, consistent with a planning agreement, to allow a total floor space ratio of 3.9:1 on the subject site. Council now proposed to rezone the site to a floor space ratio of 1:1 for commercial development and 1.5:1 for mixed use development. Craig J noted the lack of jurisprudence directed to the inter-relationship of a planning agreement with other provisions of the EPA Act that involve the exercise of discretionary power, including the taking of steps by a council to amend a planning instrument. In an ex tempore judgment on an application for an interlocutory injunction to stop council proceeding with a planning proposal that would be in breach of the planning agreement, his Honour stated (at [25]):

it would seem to lead to a strange result if the terms of a voluntary planning agreement could forever, or at least for an extended period of time, constrain the capacity of a local authority in the performance of its quasi-legislative function to instigate the process of amendment to a local environmental plan under the provisions of Div 4 of Pt 3 of the EPA Act, assuming that for a rational planning reason it is appropriate so to do.

Public notice [5.2180) A planning agreement cannot be entered into, amended or revoked unless public notice is given and it is made available for inspection (s 93G(l)). Notice must be given contemporaneously with public notice of the rezoning or development application to which the proposed agreement relates, or as soon as possible afterwards (cl 25D).

Councils and the Secretary must make available for public inspection planning agreement registers containing short descriptions of planning agreements (ell 25F - 25G). All planning authorities must make the agreements themselves available for public inspection (cll 25F - 25H), and they must include in their annual reports particulars of the planning agreements to which they are party (s 93G(5)). Planning agreements can only be registered on the title to the land if landholders or people with an interest in the land agree (s 93H). On registration, they run with the land and are binding on future landholders.

Nature and scope of section 94F [5.2200) The provision and maintenance of affordable housing is an object of the EPA Act (s 5(a)(viii); see [5.1900]). Flowing from this, a consent authority can consent to a development application subject to a condition that requires the applicant to do one or both of the following (s 94F(2)):

• •

dedicate part of the land, or other land they own, free of cost, to be used for affordable housing pay a monetary contribution

to

be used for affordable housing.

Affordable housing is defined (s 4(1)) to mean housing for very low income households, low income households or moderate income households, as prescribed by the Regulation or provided for in an EPI.

• • • • • •

A condition can be imposed only if (s 94F(3)): it complies with all relevant requirements made by a SEPP (currently SEPP 70) a LEP authorises the imposing of the condition in accordance with a scheme for dedications or contributions set out or adopted it requires a reasonable dedication or contribution, having regard to certain factors. In addition, one of the following preconditions must apply (s 94F(l)):

the consent authority is satisfied that the proposed development will or be likely to reduce the availability of affordable housing within the area, or the consent authority is satisfied that the proposed development will create a need for affordable housing within the area, or the proposed development is allowed only because of the initial zoning of a site, or the rezoning of a site.

Other conditions can be imposed on a development consent that relate to the provision, maintenance or retention of affordable housing (s 94F(5)). Examples of such conditions are those providing for the imposition of covenants (including positive covenants) or the entering into of contractual or other arrangements.

The role of the Land and Environment Court

Accountability

[5.2190) There is no appeal against the failure of a planning authority to enter into a planning agreement or about the terms of an agreement (s 93J(l)) In Progress and Securities Building Pty Ltd v Burwood Council (No 2) [2008] NSWLEC 135, Jagot J held that the Court cannot, on appeal, require a planning authority to enter into a planning agreement.

[5.2210] Any monetary affordable housing contribution must be held for the purpose for which the payment was required and be applied for the purposes of affordable housing in the council's area or an adjoining area within a reasonable time, or be paid in accordance with any direction by the Minister under section 94G(3) (s 94G(2)).

However, anybody can apply to the Land and Environment Court under section 123 of the Act (see [2.880]) to review an agreement on the ground of illegality or to enforce it against a non-complying party (ss 93](2), 122(b)(vi)).

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Reviews and appeals Review of council decisions [5.2220] Under section 82A of the EPA Act, an applicant can ask for a review of a determination in respect of a development application unless a joint regional planning panel has exercised the council's functions as the consent authority (s 82A(12)). The review must be requested at any time before the expiry of the time available for appeal (s 82A(2A); see [5.2250]). This does not apply to complying development (see [5.590]), designated development (see [5.330]), integrated development (see [5.370]) or Crown development (see [5.890]) (s 82A(l)).

An applicant can also ask for a review of a council decision relating to a modification application (see [5.2320]) (s 96AB). The request must be made within 28 days of being notified of the Council' s decision (cl 1231). There is also a right to review a council's decision to reject and not determine a development application (s 82B). The review must be requested within 14 days of being notified of a council's decision (cl 123H).

Appeals Appeal by the applicant [5.2230] If an applicant for development consent or the modification of a consent is dissatisfied with a council decision to refuse consent or to grant consent subject to conditions that are unacceptable to the applicant, they can appeal on the merits to the Land and Environment Court (ss 97, 97AA; see [2.350]) . The exception to this right of appeal is where the development application is for designated development which has been determined by the consent authority following a public hearing held by the Planning Assessment Commission (s 97(7)).

Questions arise as to when an applicant can be said to be relevantly dissatisfied. The issue frequently arises in relation to monetary section 94 contributions, where an applicant seeks to have the court review the amount payable after payment has been made. In Arncliffe Development Pty Ltd v Rockdale City Council [2003] NSWLEC 297, Pain J commented that an applicant might choose to comply with a development consent contribution condition and then seek its modification by the Court under what is now section 97 AA, rather than pursuing a section 97 appeal, which suspends the development consent while the appeal is on foot so that it cannot be acted upon. However, she noted that such an approach might well give rise to discretionary considerations in relation to taking the benefit of the development consent while seeking to avoid the burden (see Progress & Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236; Toadolla Co Pty Ltd v Dumaresq Shire Council (1992) 78 LGERA 261; Security Storage Pty Ltd v Leichhardt Municipal Council (1997) 93 LGERA 176).

Deemed refusal [5.2240] What if a council simply stalls and does not make any decision? After a certain period of time, it is deemed to have refused consent (ss 82(1), 82C(3), 96(6), 96AA(3)) . For example, in

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relation to a council' s decision on a development application, the council will usually be deemed to have refused consent either 40 days or 60 days from the date of lodgment, depending on whether the development is designated or integrated development, whether concurrence is required and whether the council has requested further information (cl 113). This allows the applicant to appeal to the Land and Environment Court, which will then make the decision.

Time for appeal [5.2250] The applicant can lodge an appeal in respect of a decision relating to a development application or modification application within six months of:

•

receiving notice of the determination of the application or review (ss 97(l)(a), 97AA(a)), or

• the date in which the application is deemed to have been refused (ss 97(1)(6), 97AA(b)).

This time period was changed as a result of amendments to the EPA Act in February 2011. Prior to this, the time limit was 12 months for development applications and 60 days for modification applications.

The council's rights and obligations [5.2260] Councils must give reasons in writing for refusing consent or for giving it subject to conditions (s 81(1); cl l00(l)(c)), but there is nothing to stop a council arguing on different grounds when it comes to an appeal. The appeal involves a complete rehearing of the case, with the court taking the council's place and exercising its discretion (Land and Environment Court Act 1979, s 39(2), 39(3)). This has led to a considerable level of dissatisfaction among local councils, which claim that, as elected bodies, they are entitled to make the final decision on questions affecting their constituents. Conversely, it is a fundamental principle of the rule of law that there should be a right of appeal or review of an administrative decision.

Rights of other government bodies to be heard [5.2270] If the development application requires the concurrence of a Minister or public authority, or involves integrated development, the Minister or body whose concurrence or approval is required is entitled to be heard on any appeal by the developer (s 97A(l), 97A(4)). The Planning Assessment Commission and joint regional planning panels may also be heard if they have determined the development application in question or if they are able to review it (s 97A(2)- (4)).

If the development application required concurrence, the Land and Environment Court has the power to allow the appeal and grant consent, even though the body whose concurrence is required has not been consulted or has not granted its concurrence. If concurrence has been granted, the court can vary or revoke any conditions attached to the concurrence (Land and Environment Court Act 1979, s 39(6).

Appeal by objectors [5.2280] Third-party merit appeal rights (see [2.350]) are only available where the development is designated or would have been if it had not been declared State significant development (EPA Act, s 98; see [5.2750]) . Where a development application does not fall into either of these

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categories and the council grants consent, the merits of the decision cannot be challenged by an objector in the Land and Environment Court. However, judicial review of the decision can be sought under section 123 (see [2.360]-[2.540]).

Review by Planning Assessment Commission [5.2290] If the consent authority makes a decision on a development application after a review has been held by the Planning Assessment Commission at the direction of the Minister or the Secretary (see [5.920]), and the Commission has held a public hearing, there is no right of appeal by the applicant for designated development or by objectors to designated development or development that would have been designated if it had not been declared to be State significant (ss 97(7), 98(4) - (5)). In reaching a decision, the consent authority must take into account the conclusions of any review that has been held (s 80(6), 80(7)), but does not have to accept them.

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A development consent can be modified under section 96 even though the relevant planning law has been changed between the original grant of consent and the making of the modification application: see North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433. See also Consumo Pty Ltd v Fairfield CC [2003] NSWLEC 143; Houlton v Woollahra Municipal Council (1997) 95 LGERA 201; Valhalla Cinemas Pty Ltd v Leichhardt Municipal Council (1986) 60 LGRA 240). The power to amend a consent is not restricted to situations where circumstances have changed, or there is new information available since the original consent was given. However, the proposed modification must fall into one of three categories before it can be considered (ss 92(1), 92(1A), 92(2)). These are addressed below. A requirement of all three types of modification application is that the development, as modified, will remain substantially the same as the development that was originally approved (ss 96(1A)(b), 96(2)(a); cl 115(1)).

Minor errors

Construction, occupation and subdivision certificates [5.2300] There is a right of appeal to the Land and Environment Court (s 109K) against:

• the failure or refusal of a consent authority, when acting as construction, final occupation or subdivision certificate • a decision to issue a construction certificate subject to conditions.

[5.2330] A section 96 application may be made to correct a minor error, misdescription or miscalculation in or relating to a development consent (s 96(1)).

a certifier, to issue a

The appeal may be brought within 12 months after the date on which the decision was made. Deemed refusal periods apply (s 109K(3)). There are no appeal rights for refusal to issue a complying development certificate or an interim occupation certificate.

Modification, revocation and lapsing of consent [5.2310] After development consent has been given, the applicant may seek to have it amended. The consent authority, on the other hand, may wish to take steps to see that developers carry out proposed development and do not simply sit on consents indefinitely. It may even revoke or modify the consent in some circumstances, provided that it is prepared to compensate the developer.

Modification of consent [5.2320] In limited situations, on application by the developer, the consent authority can allow changes to the development, after taking into account section 79C considerations (s 96(3 ); see [5.1180]-[5.1490]). It has been held that modification applications are not the same as development applications made under section 77, and the exercise of the modification power is not the exercise of the power to determine a development application. See Makram Constructions Pty Ltd v North Sydney Council [2002] NSWLEC 4, applying North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 97 LGERA 433; Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317. Similarly, the legal effect of modifying a development consent is not to grant a new development consent (s 96(4)).

Minimal environmental impact [5.2340] On application, a consent authority can modify the consent if, amongst other things, it is satisfied that the proposed modification is of minimal environmental impact and that the development as modified is substantially the same development as the development for which the consent was originally granted (s 96(1A)). If a development control plan requires public notice of an application to be given (cl 17) then any submissions must be considered (s 96(1A)(d)).

It has been held that whether a modification has minimal environmental impact depends on the particular circumstances of the case. Even though "minimal" means "very small" or "negligible", a proposal that adds an additional level to part of an approved development, comprising additional floor space (even a material amount of additional floor space) is not necessarily incapable of falling within section 96(1A) (Bechara v Plan Urban Services Pty Ltd [2006] NSWLEC 594; King v Bathurst Regional Council [2006] NSWLEC 505).

Other modifications [5.2350] On application, a consent authority can modify a consent that does not fall into the above two categories (ie ss 96(1) or 96(1A)), if it is satisfied that the development is "substantially the same development" as the development for which consent was originally granted (s 96(2)). Before doing so, it must consult relevant government bodies regarding concurrence or integrated development approval requirements (s 96(2)(6); cl 120). The test of whether the development is substantially the same is essentially one of fact (Hope v Council of the City of Bathurst [1980] HCA 16; Fernance Family Holdings Pty Ltd v Newcastle City Council [2000] NSWLEC 190). In Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 Stein J said: In my opinion "substantially" when used in the section means essentially or materially or having the same essence. The applicant for modification bears the onus of showing that

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the modified development is substantially the same, see Seaforth Services Pty Ltd v By_ron Shire Council (No 2) (1991) 72 LGRA 44 and CSR Ltd (tlas CSR Readymix) v Wingecarribee Shire Council (unreported, Land and Environment Court, 17 December 1990). In assessing whether the consent as modified will be substantially the same development one needs to compare the before and after situations .... Stein J emphasised that the development as modified would not necessarily be substantially the same development simply because it was for precisely the same use as that for which consent was originally granted. Development, particularly the extractive industry in question in that case must be assumed to include the way in which the development is to be carried out. On the facts, it was held that the additional and distinct use of waste disposal in relation to the rehabilitation of an existing quarry, included in the proposed modification of the original consent to carry out extractive industry, meant that it was not "substantially the same development". See also North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433). In Mato Projects (No 2) Pty Limited v North Sydney Council [1999] NSWLEC 280, Bignold J said that the comparison between the original development and the development as modified "involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted)" (at [56]). It also involved comparison of the environmental impacts. It has been held that the concept of modifying development does not exclude amendment of a consent to permit the carrying out of development on land that was not the subject of the original development consent. This includes an expansion of the area on which development is carried out by adding land not the subject of the original consent: Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333.

Making the decision [5.2360] In determining an application for modification of a consent, the consent authority must take into account relevant considerations under section 79C(l) (s 96(3); see [5.1180]-[5.1490]). In exercising this discretion, the consent authority is required to consider the totality of the proposed development as modified: North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433.

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Honour stated that the power to modify a consent (s 96) is a free-standing provision which meant that the restriction under s 76A, which required that development be carried out in accordance with a consent and the LEP) did not apply. Thus a section 96 application could be approved despite the development being in breach of a development standard. A SEPP 1 objection was not needed, nor available, as it could only be used for a development application for the purpose of gaining consent, and the consequence of a s 96 application is not the granting of consent, but rather the consent as modified (North Sydney Council v Michael Standley & Associates Pty Ltd followed).

Modifying conditions [5.2380] The section 96 procedure cannot be used as an indirect means of challenging a condition imposed on the original consent (Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236). It has been held that in order to properly assess and consider an application to modify a condition of consent, it is generally important to have regard to the perceived reason why the condition was imposed in the first place (Randall Pty Ltd v Willoughby City Council (2004) 137 LGERA 25). While a contribution condition under section 94 (see [5.1890]) can be modified under section 96, it cannot be imposed for the first time (Arkibuilt Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 502; Peter Duffield and Associates Pty Ltd v Canada Bay City Council [2002] NSWLEC 168). The position with regard to conditions relating to planning agreements (see p 229) is different. In Progress & Securities Building Pty Ltd v Burwood Council (No 2) [2008] NSWLEC 135, Jagot Jin the Land and Environment Court held that a condition authorised by section 931(3) of the Act, requiring a planning agreement to be entered into in terms of an offer made by the developer, can be imposed on a modification approval. In Bena/up Holdings Pty Ltd v Lismore City Council (1993) 81 LGERA 257, Stein Jin the Land and Environment Court held that the consent authority could not approve a section 96 application by modifying conditions of the development consent other than in the terms sought in the section 96 application. However, the Court of Appeal has reserved its view on this matter and hinted that there may be a limited power to grant conditional approval to a section 96 application (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433).

Development standards

Public participation

[5.2370] In North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433, the NSW Court of Appeal held that what is now section 96 is a free-standing provision meaning that a modification application may be approved notwithstanding the development would be in breach of an applicable development standard were it the subject of an original development application. Development standards, therefore, are not binding but are rather matters for the consent authority's consideration under section 79C in the determination of a section 96 application.

[5.2390] The Regulation contains several provisions relating to the notification and advertising of different types of modification applications. In King v Bathurst Regional Council [2006] NSWLEC 505, the Land and Environment Court held that a failure to notify a modification application in accordance with the Regulation is "fatal" to the validity of any purported determination of the application.

More recently in Gann v Sutherland Shire Council [2008] NSWLEC 157 Lloyd J also held that c~nsent authority could modify a development consent which would result in non-compliance w~th development standards in an LEP, and that that this modification could be approved without the need for a SEPP 1 objection (now a cl 4.6 exception under the Standard LEP). His

Modification applications based on minimal environmental impact only need to be notified or advertised if specifically required by a development control plan (cl 117; Bechara v Plan Urban Services Pty Ltd [2006] NSWLEC 594 ). There are complex provisions dealing with notification and advertising where the modification application argues that the proposed development is "substantially the same" development. Designated development and certain types of advertised development must be advertised in a

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local newspaper and notified to each person who made a submission in relation to the original development application (cl 118). For development not falling into these categories, subject to any specific provisions in a development control plan, at a bare minimum an application must be advertised for fourteen days (cll 119(2), 119(3)). Applications for modification of development consents must be made available for public inspection by the consent authority (cl 121).

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Revocation of consent Consents that ore incompatible with o draft EPI

Alternative to o modification application

[5.2430] Consents given by a local council can be revoked or modified by the council or the Secretary of the Planning Department if they are incompatible with the provisions of a draft SEPP or LEP (EPA Act, s 96A(l). The Secretary can make the decision if the consent is incompatible with a draft SEPP, and local councils have the power in relation to draft LEPs. Councils may also use this power in respect of complying development for which a complying development certificate has been issued (see [5.630]), even where the certificate was issued by an accredited certifier rather than the council (s 96A(2)). However, the power to revoke or modify cannot be used where the consent was granted by the Land and Environment Court or the Minister (s 96A(9)).

[5.2410] Where more substantial changes to the development are proposed (eg, allowing access by members of the public to a staff and client canteen, as in Woollahra Municipal Council v D ' Albora Marinas Pty Ltd (1992) 75 LGRA 46), there is nothing to stop the developer making a completely fresh application for development consent, which might be subject to a condition requiring the surrender of the earlier consent (s 80A(l)(b)). See also Waverle)' Council v CM Hairis Architects [2002] NSWLEC 180.

A consent can be revoked or modified at any time before the development is completed. It is not restricted to those cases where the development has not yet begun (s 96A(l)). So, where the development involves use for a particular purpose, it seems that the consent to carry out the particular use can be withdrawn at any time. However, any person aggrieved by such a decision is entitled to receive compensation for money spent in the period the consent operated, where this expenditure is rendered useless by the decision to revoke or modify (s 96A(7)).

Appeals [5.2400] While the applicant can generally appeal to the Land and Environment Court against a decision not to amend a consent or failure to determine an application for amendment (s 97 AA), third-party objectors, even to designated development, have no right to appeal against the decision of a consent authority to permit modifications to be made.

Development already carried out [5.2420] The Land and Environment Court has held that if a development has already been carried out, a modification application relating to it can be still be made under section 96: ie it can be used retrospectively (Austcorp No 459 Pty Limited v Baulkham Hills Shire Council [2002] NSWLEC 90; Windy Dropdown Pty Ltd v Warringah Council (2000) NSWLEC 240; Willoughby City Council v Dasco Design and Construction Pty Ltd [2000] NSWLEC 257; Steelbond (Sydney) Pty Ltd v Marrickville Municipal Council (1994) 82 LGERA 192).

It is not relevant to the exercise of the power under section 96 that the applicant might have carried out development in breach of the conditions of the development consent sought to be modified Uonah Pty Ltd v Pittwater Council [2006] NSWLEC 99). If approved under section 96, the modification removes the unlawful nature of the development (Willoughby City Council v Dasco Design and Construction Pty Ltd [2000] NSWLEC 257). In Windy Dropdown Pty Ltd v Warringah Council (2000) NSWLEC 240, Talbot J explained that, broadly construed, section 96 enabled consent authority to deal with unexpected developments as they arose during construction or subsequently, provided the development to which the consent as modified was "substantially the same". His Honour believed that "the language of s 96 .. . itself does not mandate against retrospective development" (at [27]), and subsequently approved the s 96 modification application on its merits. A question which Talbot J did not have to consider in this case was whether a new construction certificate could be issued for the modified works (ie a retrospective construction certificate) . This his Honour decided in the affirmative on this question in Marvan Properties Pty Ltd v Randwick City Council [2005] NSWLEC 9. However, subsequent amendment to the EPA Act effectively overturned this decision, as the Planning Department was of the opinion that construction certificates should not be issued respectively (see [5.1790]).

a

Before the decision is made, all those who might be "adversely affected" by the proposed revocation or modification must be notified and allowed to appear before the Secretary or council to put their case (s 96A(3)). The person who initially applied for the consent and anybody else who is now entitled to make use of the consent can appeal (within 3 months) to the Land and Environment Court against any revocation or modification (s 96A(5)) .

Lapsing of consent [5.2440] Development consents can simply lapse in certain circumstances. The general position is that the consent lapses after five years (s 95(1)). The consent authority can reduce that time when granting the development consent, but may not impose a period of less than two years for consent to erect or demolish a building or subdivide land (ss 95(2), 95(3)). In May 2010, however, amendments were made to the Act restraining the power to reduce the five year time period. The Act was amended to provide that no reduction can be made before 1 July 2011, and during any subsequent period prescribed by regulation (s 95(3A)). Further, any reduction to a development consent that was in force as at 22 April 2010 is to be disregarded (s 95(3A)).

In Hilltop Planners Pty Ltd v Great Lakes Council [2003] NSWLEC 214, the Land and Environment Court held that as all the powers and conditions for the lapsing of consent or the completion of development are to be found in section 95, it is beyond the consent authority's powers under the Act to impose a condition of development consent providing that the consent would lapse if the condition was not complied with. Nor can an application be made under the modification procedure in section 96(1A) (see [5.2340]) to substitute a condition providing that the consent would lapse in two years with one providing it would lapse in five years (Kinder Investments Pty Limited v Sydney City Council [2005] NSWLEC 737). See also Reid's Farms Pty Ltd v Murray Shire Council [2010] NSWLEC 127.

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The lapsing period only commences to run when a consent operates. Thus, if a development consent is subject to a deferred commencement condition (see [5.1530]) it does not operate until the consent authority notifies the applicant in writing that the deferred commencement condition has been satisfied. The effect of a deferred commencement consent is to suspend the operation of a consent (CSR Ltd v Fairfield City Council [2001] NSWLEC 221).

Extension of time [5.2450] If the consent authority fixes a period of less than five years when granting consent, the applicant or any other person entitled to rely on the consent can apply, before the period expires, for an extension of one year (s 95A(l)). The extension can be granted if the consent authority is satisfied that there are good reasons for an extension (s 95A(2)). There is ordinarily a right of appeal to the court if the extension is refused (s 95A(3)) . These provisions do not apply to complying development (s 95A(5); see [5.590]). In Derodo Pty Ltd v Ku-ring-gai Municipal Council (1992) 77 LGRA 1, Bignold Jin the Land and Environment Court granted an extension at a time when development consents lapsed after two years. The validity of the initial grant of consent had been challenged by objectors and was still before the courts after the two-year commencement period. In addition, the developer was in receivership and was reluctant to spend money while the validity of the consent was in doubt. It did not matter that the developer might not commence the consent within the extended period, but instead use it in negotiations with the council for a modified development on a reduced scale. The fact that the consent should not have been given in the first place on planning grounds was not a reason for refusing an extension, but it might have been different if planning circumstances had changed since the consent was given.

Preventing consent lapsing [5.2460] Development consent for the erection of a building, the subdivision of land or the carrying out of a work does not lapse if building, engineering or construction work is "physically commenced" on the land to which the consent applies before the date on which the consent would otherwise lapse (s 95(4)). Development consent for other development does not lapse if the use of any land, building or work the subject of that consent is "actualiy commenced" (s 95(5)). A deferred commencement consent (see [5 .1530]) lapses if the applicant fails to satisfy the consent authority as to the matter specified in the condition within five years from the grant of the consent or, a shorter period that has been specified (s 95(6)). For work to constitute commencement, it must be in accordance with the terms of the consent (Smith v Wyong SC (1984) 53 LGRA 176; Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132).

Physical commencement [5.2470] The question of what is sufficient to constitute physical commencement was answered in Hunter Development Brokerage Pty Ltd v Cessnock City Council [2005] NSWCA 169, where the Court of Appeal considered a subdivision of land involving the carrying out of physical work such as the provision of roads, water, sewerage and drainage. In each case survey work had been carried out prior to the relevant lapsing date, involving some clearing of vegetation, digging of

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holes and placing of survey pegs. There had also been some geotechnical investigations. The Land and Environment Court had held that the work was not engineering work and the consent had lapsed as the work was "preparatory" to commencement and not commencement itself. The Court of Appeal held that there were three questions to be answered under section 95(4) in deciding whether the consent had lapsed:

• was the work relied on building, engineering or construction work? • if so, did it relate to the approved development? • if so, was it physically commenced on the land to which the consent applied prior to the relevant lapsing date?

The Court held that once consent was granted for a subdivision, the implementation of that consent required as a necessary first step in the engineering or construction of that subdivision, the setting out by survey upon the land of each of the component elements of the subdivision in accordance with the approved plan. The carrying out of survey work referable to the development consent to establish the correct location of these elements was capable of constituting a first step in the performance of the engineering and/or construction work involved in the creation of a subdivision. It was not merely preparatory work. The natural and ordinary meaning of the expression "engineering work" in the relevant context was capable of including physical survey work of the nature and extent in the case before the Court. The required connection or relationship was satisfied if the relevant work was a necessary step in, or part of, the process required for, or involved in, the subdivision of the land. For the work to be "physically commenced" physical activity which manifested itself on the land and which was not merely a sham was required. Material change to the physical nature of the land was not required. Clearing vegetation and hammering in survey pegs, when done in a way that related to the development consent, was sufficient for physical commencement. In Reysson Pty Ltd v Roads and Maritime Services (2012) 188 LGERA 252, Biscoe Jin the Land and Environment Court held that survey work carried out in order to produce engineering drawings were engineering works for the purposes of s 99 of the EPA Act (the predecessor to s 95). Other engineering works which fall withins 95 were considered at as well (at [35]), though it was stated that if the works were not lawfully conducted, those works will not prevent the lapsing of a consent (at [36]; see [5.2490]). See also Rowlane Investments Pty Ltd v Leichhardt Council (2013) 195 LGERA 9.

Demolition work referable to a development consent has also been held to constitute physical commencement (Smith v Wyong Shire Council [2008] NSWLEC 115), as has soil testing and remediation engineering work (Zaymill Pty Limited and Maksim Holdings Pty Limited v Ryde City Council [2009] NSWLEC 86). Digging foundations, therefore, would certainly amount to physical commencement, but not prefabrication work done off the site.

Preconditions to commencement [5.2480] In many cases, development consents are granted subject to conditions requiring things to be done before work commences. In Detala Pty Ltd v Byron Shire Council [2002] NSWCA 404, for example, the consent was subject to the specific condition that a plan be provided to and approved by the council' s planning manager before work commenced. The court found that the appellant had complied with all other requirements of the development consent in order to commence the development and did everything possible to obtain that approval. The reason why approval was not granted was that the council itself was determined to obstruct the development.

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The court held that, in that circumstance, it would be wrong to hold that the other work done by the appellant was not sufficient to commence the development and prevent the consent lapsing.

Work commenced in breach of the consent [5.2490] It has been held that if building, engineering or constructions work is commenced in breach of the development consent, either because it does not come under the consent or because a condition of consent is not met, the development is unlawful. Such work therefore does not prevent the consent from lapsing (Green v Kogarah Municipal Council [2001] NSWCA 123; Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132; Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317; Besmaw Pty Ltd v Sutherland Shire Council 12 7 LGERA 413; Reysson Pty Ltd v Roads and Maritime Services (2012) 188 LGERA 252). The courts have taken a strict approach in this regard.

In Department of Environment and Climate Change v Olmwood Pty Ltd [2010] NSWLEC 15, the accused was charged with clearing native vegetation without consent. Development consent had been granted but the issue was whether it had lapsed because it had not been physically commenced. The consent contained a condition to the effect that no work w1ls to commence until a permit under other legislation had been issued by the Department of Land and Water Conservation. No such permit was obtained prior to survey work. The Court held that the survey work was not authorised under the terms of the development consent and could not be relied upon as constituting physical commencement.

If development requires a construction certificate (see [5.1790]) and is commenced without one, it has commenced in breach of a development consent because a construction certificate is deemed to form part of a development consent (see [5 .1810])).

Enforcement of consents

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An offence under section 125 is a strict liability offence (Power v Pentill House Pty Ltd (1993) 80 LGERA 247; see [2.620]). The offence must be proved beyond reasonable doubt, not on the balance of probabilities, which is also stipulated in s 125A of the Act. Until recently, a drawback to bringing criminal proceedings was that there was no provision allowing the court to order a convicted defendant to remedy the breach - for example, by pulling down a building that has been erected without development consent. The only exception was where the breach consists of damage to trees or vegetation, when an order can be made requiring these to be replaced and maintained (s 126(3)). However, the same set of amendments to the EPA Act that commenced on 31 July 2015 also now means that the Land and Environment Court has a range of sentencing options available to apply to guilty criminal offenders (s 126(2A)). Consistent with the Protection of the Environment Operations Act 1997, the Court can impose various orders in addition to, or as an alternative to, a monetary penalty for planning offences. These include orders:

•

to prevent, control, abate or mitigate any harm to the environment caused by the commission of the offence, including orders to reverse or rectify any unlawful development or activity related to the commission of the offence

• enabling a public authority to recover certain costs and expenses it has incurred as a result of the commission of the offence • requiring the offender to pay back any monetary benefits gained by committing the offence • requiring the offender to give public notice of the offence, for example in local or regional newspapers • requiring the offender to carry out public environmental projects or social or community activities for the benefit of affected communities • requiring the offender to attend training or other courses.

A court order to carry out an environmental restoration or enhancement work or program can also be supported by requiring financial assurances from the offender to the Environment Protection Authority for the work or program.

Offences [5.2500] It is a criminal offence if a developer does not comply with the terms of a consent or any conditions attached to it (ss 76A(l), 125) . This is also the position if the consent is no longer in force because it has lapsed or been revoked. New penalty provisions for offences against the EPA Act commenced on 31 July 2015. This introduced a new three tier system of penalties for offences brought in the Land and Environment Court, classified according to the severity of the offence (ss 125A, 125B, 125C). Maximum penalties for each tier of offence are:

• Tier 1: corporations - $5 million; individuals - $1 million • Tier 2: corporations - $2 million; individuals - $500,000 • Tier 3: corporations - $1 million; individuals - $250,000.

Daily penalties for each day that an offence continues also apply. The maximum for an offence against the Regulation (s 125(2)) remains $110,000, subject to any provision in the Regulation that prescribes a different maximum penalty for a particular offence (s 125D). If the prosecution is brought in the Local Court, the maximum penalty is 1,000 penalty units (s 127(3)), which is currently $110,000.

Civil enforcement [5.2510] An alternative to criminal prosecution is civil proceedings in the Land and Environment Court (s 123; see [2.690]) . These may be brought if a remedial order rather than criminal punishment is sought, or if an order is needed to restrain a threatened breach. Although these proceedings will often be undertaken by council officers, ordinary members of the public and conservation groups can bring them.

• • •

The Court can make any order suitable to remedy or restrain the breach (s 124(1)), including: an order requiring the demolition of buildings an order requiring the reinstatement of buildings to their former condition an order restraining land, work or buildings from being used for purposes that are not permitted (s 124(2)).

In Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59, the High Court of Australia held that the Act allows the Land and Environment Court to make orders against anyone who

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uses land in a manner not permitted by a development consent. However, the High Court also held that sections 123 - 124 are not to be read as conferring power on the Court to make orders to remedy or restrain breaches of the Act against those who were not themselves in breach of the Act or who, unless restrained, would be in breach of the Act. An order directed to a person who was not actually in breach of the Act, and not threatening to act in breach, would neither remedy nor restrain any breach. See also Wilkie v Blacktown City Council (2002) NSWCA 284.

Failure to obtain a development consent (5.2520] Where the breach involves a failure to obtain a development consent, the court can adjourn the proceedings to give the developer an opportunity to submit a development application and try to obtain consent (s 124(3)). Special provisions apply in proceedings concerning the validity of a development consent (see [5.2620]).

Can criminal proceedings also be taken? (5.2530] Once proceedings under section 123 have been commenced, the defendant cannot be convicted and fined in criminal proceedings except where the Court refuses to make an order (s 127(7), 127(8)). The two types of proceedings are alternative responses to wrongdoing, the one remedial and the other primarily punitive.

Authorities challenging their own consents (5.2540) Proceedings under section 123 can be, and sometimes are, used by consent authorities to challenge development consents previously granted by them in error. In Hawkesbury City Council v Sammut [2002] NSWCA 18, the NSW Court of Appeal held that a council is not estopped from asserting that a use to which it had previously granted conditional consent was invalid because it was in fact prohibited. See also Holidays-A-Float Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127; Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23. In City of Sydney Council v Waldorf Apartments Hotel Sydney Pty Ltd [2008] NSWLEC 97, Pain J held that the Council was not estopped from bringing proceedings seeking a declaration that a building was being used for the purposes of serviced apartments without the requisite approval, despite Council officers making representations to the operator of the site that

development consent was not required for that use.

Orders (5.2550] The following bodies can issue orders as additional means of enforcing development consents (EPAAct, s 121B(1)):

• councils • the Minister or the Director-General, if either is the consent authority • other bodies exercising functions as a consent authority. Only a council can give orders in relation to complying development for which a complying development certificate has been issued (s 121B(l)(b)).

Council orders (5.2560] Orders that may be given by consent authorities include:

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an order to a person entitled to act on a development consent directing the person to comply with the development consent (s 121B, Order No 15) an order requiring the completion of development if development has been commenced within the period required (see [5.2440]), but is not yet completed (s 121B, Order No 16) an order that subdivision works be carried out, if there has been a failure to carry out the subdivision works in accordance with the development consent or any agreement between the applicant and the council (s 121B, Order No 17) an order to cease carrying out specified building work or subdivision work, if the building work or subdivision work is being carried out in contravention of the Act or in a manner that affects the support of adjoining premises (s 121B, Order No 19). Other orders allowed by section 121B include: orders to demolish or remove a building erected without development consent (Order No.2) orders not to demolish a building where development consent is required for the demolition and has not been obtained (Order No 3) orders requiring demolition or repair of a building that is likely to become a danger to the public (Order No 2; Order No 4) orders to cease the use of a building where this poses a life-threatening hazard or threat to public health or safety (Order No 9).

Notice of intention to give an order must be given to a person to whom an order is proposed to be given. That person must be given an opportunity to make representations (ss 121H, 1211). If, after considering any representations, the council decides to go ahead, it must give reasons for the order, and specify a reasonable time for compliance (ss 121K, 121L, 121M). The person to whom an order is given has the right to appeal to the Land and Environment Court (ss 121N, 121ZK).

Failure to comply (5.2570] If a person fails to comply with an order, the consent authority can carry out the work and the costs of doing so can be recovered from the person required to comply (s 121ZJ).

Invalid orders (5.2580] An order is invalid if it fails to provide reasons as required by section 121L (Cassiniti v Canada Bay Council [2002] NSWLEC 144). Furthermore, the court has held that incorrect references to statutory planning documents such as LEPs and development control plans will lead to the same result. Similarly, where the subject matter of the order changes between the giving of the council's notice of intention to issue the order and the giving of the order itself, the order will be held to be invalid (Lederer v Sydney City Council [2001] NSWLEC 272). In Barclay v Wollongong City Council [2005] NSWLEC 160, the Land and Environment Court considered the validity of an order requiring "all action necessary to bring about the compliance" with a development consent but did not particularise how the recipient of the order should implement the action. In finding that the order was invalid, Talbot J considered that there were a number of alternative ways in which the order could have been implemented and the Council had a responsibility to specify the action it believed necessary to comply with the conditions of development consent.

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Notices issued by accredited certifiers (5.2590] An accredited certifier who is the principal certifying authority for any development

(see [5.1860]) may serve a notice on a person of an intention to issue an order un?er section 12_1B (s 109L(l)). If the principal certifying authority complies with a number of requ~r~ments re!atmg to representations in response to this notice (see s 109L(2)), the procedural prov1s10ns relatmg to orders under section 121B (discussed above) then have effect.

Building certificates (5.2600] Where a building has been erected unlawfully, an application can still be ma_de for _a building certificate under section 149A of the EPA Act. The council must '.ssue the certificate rf there are no grounds for taking action (eg, by ordering the building's alteration or demoht10n), or it does not propose to take action even though there are grounds for doing ~o- (s 149D). It can require the applicant to carry out work on the building before it grants the certificate (s 149D(5)). If it refuses to issue a certificate, it must inform the applicant of the reasons for refusal (s 149D(2)). There is a right of appeal to the Land and Environment Court against refusal to grant a certificate or failure to issue one within 40 days (s 149F(l)). The appeal must be lodged within 12 months (s 149F(2)).

In Ireland v Cessnock City Council [1999] NSWLEC 153, Bignold J in the Land and Environment Court held that the issue of a building certificate, where council is not bound to issue one is discretionary. In such circumstances, he considered that the council could issue a building ~ertificate where the building was subject to an order requiring demolition. This would have the effect of negating the order. See also Williams v Blue Mountains City Council [2001] NSWLEC 73.

The effect of a building certificate (5.2610] A building certificate does not protect the holder against criminal proceedings for

constructing the building without consent or in breach of consent conditions, or the makmg of a fire safety order (Order No 6) under s 121B of the Act (s 149E(3)). What it ~oes d~ is to pre:ent the council from making an order (with the exception of Order No 6), or takmg CIVll proceedmgs in court for an order based on existing faults, that (s 149E(l)):

• •

(5.2640]

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[2.350]), it is based on the consent authority's failure to have proper regard to the matters specified in section 79C (see [2.410]). A challenge could also be based on the interpretation of the applicable environmental planning instrument: for example, there may be an argument that the development was prohibited, and there was therefore no power to grant consent. There is a special provision in the legislation that restricts the circumstances in which the courts can declare a consent invalid where the consent authority is the Minister (s 102). In all these instances the request is for judicial review of the decision-making process. The court cannot substitute its own decision as it can where there is a merit appeal. But merit appeal rights in this area are very limited, and judicial review proceedings offer some redress in extreme cases (see [2.350]-[2.540]).

It has been held that a challenge to the validity of the conditions of a development consent is a challenge to the consent (Anambah Homes Pty Ltd v Maitland City Council [2004] NSWLEC 615; Woolworths Ltd v Bathurst City Council (1987) 63 LGRA 55; Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455).

Time limits on legal proceedings (5.2630] If public notice of the granting of a consent or a complying development certificate is given in accordance with the Regulation, any challenge to its validity must be brought within the next three months (s 101; Breitkopf v Wyong Council (1996) 90 LGERA 269; PW Rygate & West v Shoalhaven City Council (1996) 91 LGERA 417; Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 341). This is known as a privative clause (see [2.510]). Public notice is given when the consent authority publishes in a local newspaper a notice that describes the land and the development and states that the consent or certificate can be inspected (cl 124 ). Where public notice is not given, there is no time limit on proceedings: see Levenstrath Community Association Inc v Tomies Timber [2000] NSWLEC 95.

In Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121, the Land and Environment Court held that a challenge to the validity of a consent on the basis of an alleged failure to consider relevant matters under section 79C of the EPA Act was subject to the three month time limit. In Currey v Hargraves [2007] NSWLEC 471, it was held that challenges to a consent based on a lack of a valid delegation, and the failure to comply with a clause of an LEP requiring the Council to be satisfied of certain matters, could not be brought outside of the three month period.

requires the building to be repaired, demolished, altered, added to or rebuilt, or relates to any encroachment by the building on land under the control of the council.

The certificate also prevents a council from taking action for seven years in relation to matters arising from the deterioration of the building as a result solely of fair wear and tear (s 149E(2)).

When the time limit does not apply Manifest jurisdictional error (5.2640] The courts have held that section 101 does not operate to impose a time limit on a challenge to a decision where:

Challenging the validity of consents (5.2620] Proceedings can be brought under section 123 that challenge the validi~y of a consent, rather than seeking to enforce it (see [2.690]). A challenge may be based on a failure to comply with procedural requirements for the determination of a development application, such as a requirement to give public notice. Frequently, where there is no provision for a merit appeal (see

• there has not been a good faith attempt to exercise a power or • the decision does not relate to the subject matter of the legislation or • the decision is not reasonably capable of reference to the power given to the decision-maker.

This three part test is known as the Hickman Principle (see R v Hickman; Ex parte Fox (1945) 70 CLR 598; Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455).

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Effectively this common law principle, where found to apply, displaces the statutory protection from legal challenge afforded to development consents by section 101.

Essential requirements [5.2650] Section 101 does not impose a time limit on a challenge to the validity of a

development consent where there is a breach of, or non-compliance with, a restriction or requirement which is construed as being of such significance in the legislative scheme that it constitutes a limitation or requirement that is "essential", "indispensable", "imperative" or "inviolable": Lesnewski v Mosman Municipal Council [2005] NSWCA 99; Woolworths Pty Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455). In Lesnewski v Mosman Municipal Council [2005] NSWCA 99, the Court of Appeal affirmed that a proven denial of procedural fairness is not barred from challenge by the operation of section 101 (see also Clark v Wollongong City Council [2008] NSWLEC 110). In Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455, the Court of Appeal held that section 101 did not prevent the applicant from challenging a condition requiring the dedication of land to the council free of cost in circumstances where the relevant contributions plan did not authorise such a condition.

[5.2690]

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In Warringah Shire Council v Sedevcic (1987) 63 LGRA 361, Kirby P set out a number of factors to be considered by the Court when exercising discretion under section 124 of the EPA Act. These include:

• whether the breach was a purely technical one that would not be noticed unless someone is well versed in the law

• whether the applicant delayed in bringing the case, and the effect of that delay • the nature and extent of environmental effects of the breach • the obvious intention of the Act that normally those concerned in development and use of the environment will comply with the terms of the legislation • that discretion not to grant relief is more likely to be used where the development is static and the situation can only be remedied at great cost or inconvenience, as compared with ongoing conduct which can more easily be modified to bring it into compliance with the law.

Postponing or limiting orders

See also the reference in Chapter 2 ([2.510]) to the possible implications of the more recent decision of the High Court in Kirk v Industrial Relations Commission (2010) 239 CLR 531; [2010] HCA 1.

[5.2680] The Court may postpone orders, or limit the operation of orders to soften their impact, if it considers this appropriate (see ]arasius v Forestry Commission of NSW (1988) 71 LGRA 79 at 102-107; Bailey v Forestry Commission of NSW (1989) 67 LGRA 200 at 216-217; Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 at 201-203; Normans Plant Hire Pty Ltd v South Coast Concrete Crushing and Recycling Pty Ltd (No 2) [2006] NSWLEC 734; Barton v Orange City Council [2008] NSWLEC 104 and Hawkesbury City Council v Agostino [2009] NSWLEC 176).

Conditional validity

State significant projects

[5.2660] When the Land and Environment Court is dealing with a challenge to the validity of a development consent such as that discussed above, it must consider whether it should make an order for conditional validity of the consent. This means that instead of declaring the consent invalid, it may suspend its operation and specify the terms required to validate it (Land and Environment Court Act 1979, s 25B). The consent authority may at a later point apply for an order to validate the consent and to have the suspension revoked if those terms have been substantially complied with (s 25C). Alternatively, the consent authority can revoke the development consent and, if the terms imposed by the Court have been substantially complied with, grant a new development consent without taking any other preliminary steps (EPA Act, s 103 ). Neither the applicant nor any third party objector has a right of appeal against the consent (s 104)).

Discretion [5.2670] Aside from making an order for conditional validity, the Land and Environment Court has a wide discretion to make such orders as it thinks fit to remedy the breach (s 124; F Hannan Pty Ltd v The Electricity Commission of NSW (No 3) (1985) 66 LGRA 306; Warringah Shire Council v Sedevcic (1987) 63 LGRA 361; Sutherland Shire Council v Nader [2007] NSWLEC 363).

P a rt 3 A [5.2690] Part 3A of the EPA Act was inserted in 2005. It set out a new procedure, separate from Part 4, for assessing and carrying out certain major projects. The intent was to streamline the approval and implementation process for these projects and to focus decision-making power in the hands of the Planning Minister.

A project became a Part 3A project if it was declared as such by a SEPP or by order of the Minister (previous s 75B(l)). The projects that could be declared included major infrastructure projects and development that in the opinion of the Minister was of State or regional environmental planning significance. Part 3A operated generally to the exclusion of Parts 4 and 5 of the Act. One of its features was that it allowed for the approval of a concept plan for a project where it was appropriate to resolve up-front certain critical matters in relation to the project and to simplify the issuing of subsequent aprovals. A further level of streamlining applied if the project was declared to be a critical infrastructure project. The Minister could declare a project to be a critical infrastructure project if of the opinion that it would fall within a category that was essential to the State for economic, environmental or social reasons (previous s 75C).

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[5.2750]

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Repeal of Part 3A

Development prohibited by EPis

[5.2700] With the change in Government in 2011, the Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011 was enacted to repeal Part 3A, and came into operation on 1 October 2011. Despite this, some proposals continued to be processed under Part 3A as a result of transitional arrangements relating to the repeal. These proposals included those for which environmental assessment requirements were notified before the repeal and those specifically declared to be subject to the transitional procedures. These procedures are spelt out in detail in Schedule 6A to the EPA Act.

[5.2730] ~onsent ca~not be given to a development that is "wholly prohibited" by an EPI, altho_u~~ 1t can be given to "partly prohibited" development (s 89E(2), 89E(3)). However, proh1bltlons on development can be removed by an amending EPI, and this is facilitated in the new pro'."isions. by allowing this to be done at the same time that an application for development consent 1s considered (s 89E(5)). In these circumstances, the Planning Assessment Commission not the Minister, becomes responsible for making the EPI and deciding whether or no; development consent should be granted (s 89E(6)).

The repeal reflected the incoming Government's policy to return decision-making powers to local government. The Amendment Act introduced two new categories of development, State significant development and State significant infrastructure. Procedures for these new categories of development are found in Part 4, Division 4.1 - State significant development, and Part 5 .1 State significant infrastructure. Projects covered by the new procedures include:

• projects that deliver large-scale transport and utility infrastructure such as major road and rail projects, electricity generation, water and sewerage systems and telecommunications • projects that provide major social infrastructure to the community such as large scale hospitals, universities and cultural facilities • projects with significant environmental impact such as large scale mining resource and primary industry projects • projects of significant economic benefit to the State or national economy. State significant development

[5.2710] The Minister can declare development to be State significant in a SEPP (s 89C(2)). Alternatively specific development can be declared to be State significant by order published in the Government Gazette provided that advice from the Planning Assessment Commission as to its State or regional planning significance has first been obtained and made publicly available (s 89C(3)). State Environmental Planning Policy (State and Regional Development) 2011 commenced on 1 October 2011 and identifies development that is State significant development, State significant infrastructure, or critical State significant infrastructure. See also Chapter 3, [3.460], where this SEPP is discussed further.

Development consent from the Minister [5.2720] Development consent from the Minister under Part 4 of the Act is required for State significant development (s 89D), but the Minister can delegate this decision to any public authority, including the Planning Assessment Commission or the Secretary of the Planning Department (s 23 ). The factors set out in section 79C must be considered before the decision is made (s 89H; see [5.1180]).

The application and an environmental impact statement (s 78A(8A)) must be placed on public exhibition for at least 30 days, and anybody can make a written submission (s 89F). Amendments to an application do not have to be re-exhibited if the Secretary decides that the environmental impact has been reduced by the proposed changes (s 89F(4)).

Bypassing other decision-makers [5.2740] I~ development consent is granted, successful applicants are exempted from a range of other reqmrements (s 89]), significantly restricting the regulatory role of other government agencies:

• concurrence under Part 3 of the Coastal Protection Act 1979 (see Chapter 14, [14.730]) • certai? perm~ts under the Fisheries Management Act 1994 (s 201: dredging work; s 205: harmmg manne vegetation ands 219: blocking fish passage) • approvals to carry out activities restricted by section 57 of the Heritage Act 1977 (see [17.290]), and excavation permits under section 139 (see [17.440]) • Aboriginal heritage permits under section 90 of the National Parks and Wildlife Act 1974 (see [20.730]) • approvals under the Native Vegetation Act 2003 to clear native vegetation (see [12.1380]) or State protected land (see [11.90]) • bush fire safety authorities under section 100B of the Rural Fires Act 1997 • approvals under sections 89 (water use), 90 (water management work) and 91 (controlled activity, other than aquifer interference) of the Water Management Act 2000 (see [14.1150]). A number of other authorisations still have to be obtained, but they cannot be refused if they are necessary for the carrying out of an approved project, and they must be substantially consistent with the development consent (s 89K):

• aquaculture permits under section 144 of the Fisheries Management Act 1994 (see [19. 700]) • approvals under section 15 of the Mine Subsidence Compensation Act 1961 (see [18. 710]) • mining leases under the Mining Act 1992 (see [18.180]) • production leases under the Petroleum (Onshore) Act 1991 (see [18.1090]) • initial environment protection licences under the Protection of the Environment Operations Act 1997 (see [9.670]) • consents under section 138 of the Roads Act 1993 • licences under the Pipelines Act 1967 Appeal by objectors [5.2750] Third-party merit appeal rights (see [2.350]) are only available where State significant development would have been designated development if it had not been declared State

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significant development (EPA Act, s 98(4 ). Even then, the appeal right is lost where there has been a public hearing by the Planning Assessment Commission (s 98(5)).

State significant infrastructure [5.2760] State significant infrastructure does not require development consent under Part 4 of the EPA Act but an approval from the Minister under Part 5.1 of the Act (ss 115W, 115ZF(l)). Infrastructure is broadly defined to include such things as roads, railways, pipelines and telecommunications, as well as reserve management (s 115T). It will usually be carried out by public authorities, but infrastructure carried out by the private sector is also covered. Infrastructure can be declared to be State significant in a SEPP (s 115U(2) which, since 1 October 2011, has been State Environmental Planning Policy (State and Regional Development) 2011. Alternatively, specific infrastructure can be declared to be State significant in an order from the Minister amending a SEPP, published on the NSW legislation website (s 115U(4)). Apart from this limited role for SEPPs, EPis do not apply to State significant infrastructure (s 115ZF(2)(a)). The Secretary of the Planning Department prepares environmental assessment requirements for those applying for approval, in consultation with "relevant public authorities" (s 115Y(l), 115Y(3)). An environmental impact statement (but not a separate species impact statement) must be prepared (s 115Y(2)) and put on public exhibition for at least 30 days (s 115Z). Anybody can make written submissions and the Secretary has the discretion to require the proponent to respond and to submit a preferred infrastructure report outlining any proposed changes (s 115Z(6)). This report can be made publicly available if the Secretary considers that significant changes are proposed (s 115Z(7)). The Secretary then prepares a report for the Minister, including advice provided by other public authorities (s 115ZA). In reaching a decision, the Minister must consider the report, but there is no equivalent of the list of considerations that consent authorities must consider under Part 4 of the Act (s 79C). The applicant can choose to make a staged infrastructure application which simply sets out concept proposals, leaving the detailed proposals for separate parts of the infrastructure to be deal with in subsequent applications for approval (s 115ZD).

Bypassing other decision-makers [5.2770] As with State significant development, State significant infrastructure is exempted from a range of requirements found in other legislation (s 115ZG), while other authorisations cannot be refused and must be consistent with the Minister's approval (s 115ZH) (see [5.2740]). In addition, there are no rights of merit appeal against the Minister's decision, but judicial review proceedings questioning the validity of an approval can be brought within three months (s 115ZJ(l)), though the grounds of review are constrained (s 115ZJ(2)).

Critical State significant infrastructure [5.2780] State significant infrastructure can be declared to be critical State significant infrastructure if the Minister concludes that it is essential for the State for economic, environmental or social reasons (s 115V). In these circumstances, the legislation goes even further

(5.2780)

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in restricting the role of other government departments by excluding the use a range of orders, including environment protection notices under the Protection of the Environment Operations Act 1997 and orders under s 121B of the EPAAct (ss 115ZG(3), 115ZF(4); see [9.920]; [5.2550]). In addition, the role of the courts is severely restricted by requiring the Minister's consent before proceedings can be brought by a third party to remedy or restrain breaches of the Act, including breach of a condition attached to an approval (s 115ZK).

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Introduction ..................................................................................................................................................................... [5.20] When does Part 5 apply? ........................................................................................................................................ [5.30] Decision-makers under Part 5 ........................................................................................................................... [5.120] Environmental impact assessment ................................................................................................................ [5.150] The decision-maker .................................................................................................................................................. [5.31 O] Monitoring ..................................................................................................................................................................... [5.350] Enforcement ................................................................................................................................................................ [5.350]

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[6.10] In this Chapter, the "Act" or "EPA Act" refers to the Environmental Planning and Assessment Act 1979 (NSW) and the "Minister" refers to the Minister administering this legislation (the Planning Minister, currently the Minister for Planning). "Secretary" refers to the Secretary of the Planning Department, currently the Department of Planning and Environment. The "Regulation" or "EPA Regulation" refers to the Environmental Planning and Assessment Regulation 2000 (NSW).

[6.70]

chapter 6 New South Wales environmental assessment

Part 5.1 was introduced into the EPA Act in 2011 when Part 3A was repealed. It contains specific provisions for environmental assessment of "State significant infrastructure". At the same time, Part 4 was amended to include procedures for environmental assessment of State significant development (see [5.350]).

Other circumstances in which Part 5 does not apply

Introduction

[6.40] Part 5 will not apply in some circumstances, even where no approval under Part 5.1 or development consent under Part 4 is required.

[6.20] Part 5 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) is entitled "Environmental Assessment". This is somewhat misleading as it suggests that these are the only provisions in the Act relevant to the topic of environmental assessment. In fact, there are also important environmental assessment provisions in Parts 4 and 5 .1 , and these are discussed in detail in Chapter 5.

Exempt development

The environmental assessment provisions in Parts 4, 5 and 5.1 operate at the level of project control rather than strategic planning. This does not mean that particular undertakings have to comply with all sets of provisions or that a choice can be made between the three. The legislation itself spells out which undertakings are covered by the provisions in Parts 4 and 5.1 and which by those in Part 5. Those carrying out activities that have to be assessed under Part 5 are known as "proponents" . The body responsible for deciding whether an activity should go ahead, after determining the level of environmental assessment required and taking environmental impact into account, is known as a "determining authority" (see below). As we shall see, where the proponent is a public body, it will also be a determining authority in relation to the proposed activity.

[6.50] If a project is "exempt development" under an environmental planning instrument (see [5.1270]), then it does not require assessment under Part 5 (EPA Act, s ll0(l)(i)).

Biodiversity certification [6.60] The Threatened Species Conservation Act 1995 (NSW) (TSC Act) has the effect that certain activities do not require assessment under Part 5.

If an environmental planning instrument has obtained biodiversity certification (see [6.60]), a determining authority is not required to consider the effect on biodiversity values of an activity carried out on biodiversity certified land (TSC Act, s 1261(5)), and activities are considered not to be likely to significantly affect any threatened species, population or ecological community, or its habitat (TSC Act, s 1261(4)).

When does Part 5 apply? Application of Part 4 and Part 5.1 [6.30) Part 5 of the EPA Act was originally designed to catch those undertakings which fell through the net of Part 4. If a project requires development consent under Part 4, then the environmental assessment provisions of Part 4 apply (EPA Act, s 110).

However, if a project does not require development consent under the relevant environmental planning instruments (EPis), then the project must be assessed under Part 5, subject to certain exceptions noted below. The reason for the division between assessment under Part 4 and assessment under Part 5 is primarily historical. The development control system, currently regulated by Part 4, was well established before the introduction of the EPA Act in 1979. It was therefore a simple matter to tack environmental, threatened species, and assessment provisions onto this ongoing system, requiring that these factors be taken into account when development proposals are considered. But the decision-making system did not cover all proposals. If environmental impact assessment was to take place on a systematic basis, then an additional system had to be set up. This was the purpose of Part 5 of the EPA Act.

In addition to this, if a biobanking statement has been issued in respect of a development subject to Part 5, the activity is taken to be an activity that is not likely to significantly affect any threatened species, population or ecological community or its habitat (TSC Act, s 127ZP(1)). A determining authority must impose any conditions specified by the biobanking statement if approving an activity under Part 5 of the EPA Act (TSC Act, s 127ZP(2)).

Other exemptions (6. 70] There may be other statutory exemptions from the application of Part 5. For example, the Chief Executive of the Office of Environment and Heritage is deemed not to be a determining authority when issuing a general licence to harm protected fauna under the National Parks and Wildlife Act 1974 (s 120(6)) or a scientific licence under s 132C (s 132C(6)) (see [12.720]). As a result no assessment of the impact of the licensed activity is required under Part 5 (although the assessment procedures in the National Parks and Wildlife Act 1974 would need to be followed), unless some other approval is required for that activity, or the proponent is a public authority which would itself be a determining authority for the purpose of Part 5.

In addition to this, the Courts have held that some statutes exclude the operation of Part 5 of the EPA Act. In Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231; the Land and Environment Court held that the lopping of trees overhanging

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public roads pursuant to s 88 of the Roads Act 1993 did not require assessment under Part 5 (see also Oshlack v Rous Water [2011] NSWLEC 73).

Activities under Part 5 [6.80] The general position is that where a proposal is not to be assessed under Part 4 or Part 5 .1 of the EPA Act, it will be assessed, if at all, under the assessment provisions contained in Part 5. But the provisions of Part 5 do not automatically apply. It has already been noted that Part 5 does not apply to some types of development, such as exempt or prohibited development. It also has other limits.

A precondition to the operation of Part 5 is that the undertaking must fall within the definition of an "activity" in section 110 of the EPA Act.

Activities

[6,130]

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Private activities requiring approval [6.110] Part 5 also covers "activities" carried out by private concerns provided that some approval other than development consent is required.

An "approval" includes not only the giving of a consent, licence or permission for something, but also provision of financial accommodation by a determining authority to another person.

An approval could, for example, be a licence under the Water Management Act 2000 (NSW) or the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) or a lease under the Mining Act 1992 (NSW). Long-standing activities protected from regulatory requirements by nonconforming use provisions (see [5.460]) will have to be assessed under Part 5 when any approvals must be renewed. However, applications for environmental protection licences under the POEO Act where the "activity" was carried out even before a licence was required do not have to be assessed under Part 5, provided the licence is for the same or substantially the same activity (POEO Act, ss 52(1), 52(2) and Protection of the Environment Operations (General) Regulation 2009, cl 48).

[6.90] "Activity" means:

• • • • • •

the use of land subdivision erection of a building carrying out of a work demolition of a building or work or anything else referred to in section 26 that is prescribed by the Environmental Planning and Assessment Regulation 2000 (EPA Act, s 110(1)).

Section ll0E of the EPAAct also provides that the following matters do not require assessment under Part 5: modifications of an activity the environmental impact of which has already been assessed, if the modification will reduce the impact;

• • •

Decision-makers under Part 5

routine activities that the Minister determines have a low environmental impact and are carried out in accordance with a code approved by the Minister; and activities or parts of activities that have been approved or are to be carried out by another determining authority after environmental assessment under Part 5.

Public activities [6.100] Part 5 applies to "activities" carried out directly by government departments, public authorities and local councils. This includes the construction of roads by Roads and Maritime Services or a local council; of the construction of a dam or sewerage works by Sydney Water or a local council.

For example, in Garrett v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1, the construction by the Council of a road on its own land was considered an "activity" as it did not require development consent. Consequently, the Council should have carried out a proper assessment of the impact of the construction of the road on threatened species under Part 5 of the EPA Act.

Determining authorities [6.120] A public body is a determining authority for the purpose of Part 5 if it is carrying out an activity on its own behalf, or having someone else carry an activity out on its behalf, or if it is responsible for granting an approval for an activity (EPA Act, s 110).

The determining authority is ordinarily responsible for deciding whether, in relation to its own activities, the activity should proceed, and in relation to applications for approval, whether to grant the approval. But there is a significant exception in respect of development carried out by public bodies which requires an environmental impact statement (see [6.190] below).

Case studies: Activities carried out by public bodies [6.130] In relation to activities carried out by public bodies, the question of which

body is carrying out the activity, or on whose behalf it is being carried out may be complex. In Citizens Airport Environment Association v Maritime Services Board (1992) 78 LGERA 7, Justice Stein held that dredging work carried out by the Federal Airports Corporation to obtain fill for the third runway at Sydney airport was not carried out "on behalf of" the Maritime Services Board, so as to make the Board a determining authority within the definition in section 110 of the EPA Act. This was so even though the Board owned the land under the bay and there was the possibility that its plans to develop a new port facility would be furthered if the fill was taken from a particular area. Under the terms of its agreement with the Board, there was no obligation on the Corporation to dredge in a particular place and no element of control or direction by the Board.

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The Land and Environment Court may also exercise the functions of a determining authority in certain circumstances. In Goldberg v Waverley Council (2007) 156 LGERA 27; [2007] NSWLEC 259, the Land and Environment Court was considering an appeal against the refusal by the Council of development consent for a dwelling house and associated works, including a driveway. The Court decided that because the driveway was to be located on a road, it did not need development consent. However, an approval under section 138 of the Roads Act 1993 (NSW) was required, and the construction of the driveway was therefore considered to be an activity to which Part 5 of the EPA Act applied. The Council, as the roads authority under the Roads Act 1993, would have therefore had to assess the driveway as the determining authority under Part 5. It was held that the Court itself had the power to carry out the assessment, and make a determination under Part 5 of the EPA Act in relation to whether to grant the approval under the Roads Act 1993. This was because section 39(2) of the Land and Environment Court Act 1979 (NSW) gives the Court on appeal the power to exercise all of the functions and discretions of a council necessary to dispose of the appeal.

[6.170]

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determining authority and must comply with the legal provisions relating to both. This means that the public authority may both prepare and review any environmental assessment documents required under Part 5.

Environmental impact assessment The duty to consider environmental factors [6.160] The fact that an undertaking is an activity for the purposes of Part 5 does not mean that an environmental impact statement (EIS) and/or a species impact statement (SIS) must be prepared.

What it does mean is that the determining authority, before it can proceed with an activity, or grant an approval to the activity, must take into account the environmental impact of that activity. Section 111 of the EPA Act specifies how that is to be done.

Duty to consider environmental impact

Additional determining authorities [6.140] There may be more than one determining authority if a public authority carrying out an activity also requires an approval from another public authority, or if a private developer requires an approval from more than one public authority for its activity.

Where there is more than one determining authority, all determining authorities must comply with Part 5. However, to avoid duplication, the Minister can specify a "nominated determining authority" to be responsible for carrying out certain procedural functions (EPA Act, s 110A). Where the Minister has specified a nominated determining authority, then the other determining authorities are not required to comply with certain provisions of Part 5 regarding the receipt, exhibition of, and provision of environment impact statements to the Secretary (EPA Act, s 110A(2)). However, they must assist the nominated determining authority, including by forwarding to the nominated determining authority any submissions they receive (EPA Act, s 110A(3)). Importantly, the fact that there is a nominated determining authority does not absolve any of the other determining authorities from the key obligation under Part 5 of considering the environmental impact of the activity as required by EPA Act, s 111 (see below).

[6.170] Section 111 provides:

For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall ... examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity. The requirement to take such matters into account to the fullest extent possible differs from the requirement under s 79C to take matters into consideration (see [5.1180]). In Goldberg v Waverley (see above) Biscoe J suggested it was a more exacting requirement, but went on to say: "However, there must be imported into this statutory obligation under s 111(1) a concept of reasonableness." In order to meet its obligations under s 111, the determining authority must have regard to the register of critical habitat kept by the Chief Executive of the Office of Environment and Heritage under the TSC Act (EPA Act, s llOC). It must consider the effect of an activity on critical habitat and, in the case of threatened species, populations and ecological communities and their habitats, whether there is likely to be a significant effect on them, and any other protected fauna or protected native plants within the meaning of the National Parks and Wildlife Act 1974 (EPA Act, s 111(4)) (see Chapter 12).

Who is the proponent?

The determining authority must also consider the effect of the activity on conservation agreements and plans of management under the National Parks .a nd Wildlife Act 1974 and joint management agreements and biobanking agreements under the TSC Act, as well as the effect on any wilderness area under the Wilderness Act 1987 (NSW).

[6.150] The "proponent" is the person or body actually proposing to carry out an activity. This includes the private developer who has to apply to a determining authority for an approval. Where a public authority itself proposes to carry out the activity, it is both the proponent and the

In addition, the authority must have regard to recovery and threat abatement plans relating to the relevant land, for the purposes of assessing the effect on a threatened species, population or ecological community (EPA Act, s 112A).

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simply, this means that all determining authorities must consider factors relating to the environment when making decisions about activities, even if the legislation under which they are making the decision says nothing about the need to take account of environmental impact.

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P ut

This is the importance of Part 5. It acts as an umbrella, attempting to shelter the environment from the impact of decisions made under a whole range of statutes, many of them dating back decades and from an era when development was encouraged at all costs. EPA Regulation, clause 228 spells out in detail some of the factors which must be taken into account when determining authorities are considering what the likely impact of an activity on the environment is. These include:

• • • • • • • • • •

any environmental impact on a community a transformation of a locality any environmental impact on the ecosystems of the locality any impact on the habitat of protected fauna any endangering of any species of plant or animal any pollution of the environment any environmental problems associated with the disposal of waste any increased demands on resources, natural or otherwise, which are, or are likely to become, in short supply any cumulative environmental effect with other existing or likely future activities, and any impact on coastal processes and coastal hazards, including those under projected climate change conditions.

It is difficult to say what is involved in taking a matter into account (see generally, [6.180]) . The courts have sometimes adopted a test of whether "proper, genuine and realistic consideration" of relevant matters has taken place. However, the Court of Appeal has suggested that that test should be applied with caution, so that the Court does not delve into the merits of the matter before it (see for example, Notaras v Waverly Council (2007) 161 LGERA 230; [2007] NSWCA 333 and Anderson v Director-General, Department of Environment and Climate Change (2008) 163 LGERA 400; [2008] NSWCA 337). What is clear is that the relevant matter must be more than merely adverted to or paid mere lip service. Nor would it be sufficient to advert to the matter and then disregard it as irrelevant (see Anderson per Tobias JA at [58]). In addition to this, the fact that there is an obligation to take certain matters into account does not mean that the conclusion reached on those matters must be correct. The fact that a review of the decision might suggest that the decision is wrong does not necessarily lead to a conclusion that the decision is invalid at law (Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255).

Case studies: Considering environmental impact [6.180] In Garret v Freeman (see [6.100]) the Court found that there had been only a token effort to comply with Part 5. Justice Lloyd held that the person carrying out the assessment had completed a tick-a-box checklist which did not even mention the threatened species or whether the activity was likely to have a significant effect on

the habitat of the species, as required by section 111 of the EPA Act. That was held not to be sufficient to comply with Part 5. At the very least, compliance with section 111 would be expected to involve, for example, carrying out surveys on the distribution of fauna and flora to assess their conservation status where existing information was inadequate Uarasius v Forestry Commission of NSW (1988) 71 LGRA 79 at pp 99-100).

In Bailey v Forestry Commission of NSW (1989) 67 LGRA 200, the Forestry Commission argued that it had satisfied its obligations under EPA Act, section 111 by, among other things, completing a management plan and attaching Standard Erosion Mitigation Conditions to timber licences. But Justice Hemmings concluded otherwise. The plan was primarily concerned with economic factors and the environmental reviews were superficial. The mitigation conditions were not adequate under all circumstances, and the Commission ought to have taken this into account. Nor had the Commission explained why it had departed from its normal practices by leaving such decisions as the areas to be logged and the location of snig tracks to the discretion of the loggers (at pp 215-216). However, a cost-benefit analysis is not necessarily required (Drummoyne Municipal Council v Roads and Traffic Authority of NSW (1989) 67 LGRA 155 at p 160). In this case, Justice Stein took into account the expertise of the decisionmaking body in concluding that it had complied with its duty. There may also be an argument that a decision-maker lacking expertise cannot reasonably be expected to carry out the same level of assessment as one that has the necessary resources and skills.

The need for an environmental impact statement [6.190] If development is being dealt with under Part 4 of the EPA Act, then an EIS is only

required if the development is specifically identified as "designated development" (EPA Act, s 78A(8)(a)) or State significant development (EPA Act, s 78A(8A)). An EIS is also required for State significant infrastructure under Part 5.1 (EPA Act, s 115Y(2)). Under Part 5, an EIS is only required if the determining authority forms the view that the activity which it is considering "is likely to significantly affect the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats" (EPA Act, s 112(1), 112(1B)). In contrast to designated development and State significant development under Part 4 and State significant infrastructure under Part 5 .1, there is no attempt to list specific types of undertakings, although this could be done in the EPA Regulation, as the EPA Act, section 112 provides that activities can be "prescribed". The test of whether something is likely to "significantly affect" the environment is potentially very broad - much broader than the categories of designated development, State significant development and State significant infrastructure.

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Who determines significant effect? [6.200) The primary responsibility for deciding if an activity is likely to "significantly affect" the environment lies with the determining authority. Where there is more than one determining authority, each has to consider the matter independently. An EIS has to be prepared if any one of them decides that the activity is likely to significantly affect the environment or threatened species, populations or ecological communities - even if the others do not agree. The fact that the nominated determining authority (see above [6.140]) does not agree is irrelevant, as it has no power of veto (EPA Act, s 110A(2)).

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Likelihood of significant effect [6.210] Section 111 of the EPA Act and clause 228 of the EPA Regulation, prescribe what must be considered when assessing an activity under Part 5 (see above, [6.200]), and those matters will be relevant to the determination of whether the activity will have or is likely to have a significant effect on the environment.

Each case must be considered on its own facts: the assessment of significance made in another similar case cannot be relied on (Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38).

Unlike designated development, State significant development or State significant infrastructure, where an EIS is required if the proposal falls within one of a number of specifically identified categories, it is open to a determining authority to conclude that an activity will not, or is not likely to have a significant effect on the environment or threatened species, and that an EIS is not required.

The determining authority must assess the significance of the environmental effect of the activity as proposed, not as modified by any conditions designed to mitigate its impact which could be attached to the approval sought. However, ameliorative measures proposed as part of the activity can be relevant to the assessment of the expected impact of the activity (Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186).

There are only limited ways in which such a conclusion can be challenged. There is no right of merit appeal against a determining authority's conclusion. However, under section 123(1) of the EPA Act, any person can commence proceedings alleging a breach of the EPA Act. It is a breach of the EPA Act for a determining authority to allow an activity which is likely to significantly affect the environment to proceed without considering an EIS (EPA Act, s 112(l)(a). The legal position was that in such proceedings the Court would only be considering whether the conclusion of the determining authority not to require an EIS was reasonably open to the determining authority, based on the material or evidence which was, or should have been available to the decision-maker at the time the decision was made. If the decision was reasonably open to the determining authority, then there will be found to have been no breach of the EPA Act (see Leichhardt Municipal Council v Maritime Services Board (1985) 57 LGRA 169; Drummoyne Municipal Council v Roads and Traffic Authority of NSW (1989) 67 LGRA 155; Bailey v Forestry Commission ofNSW (1989) 67 LGRA200; Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186).

The Court has held that an effect on the environment will be "likely" if there is a "real chance" or "possibility" of the effect occurring. It is not necessary for the effect to be, "more probable than not" Uarasius v Forestry Commission of NSW (1988) 71 LGRA 79 at p 94; Drummoyne Municipal Council v Roads and Traffic Authority of NSW (1989) 67 LGRA 155 at p 163; Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 at p 193; compare Bailey v Forestry Commission of NSW (1989) 67 LGRA 200 at p 211).

It has, however, been stated in two decisions by Biscoe J of the Land and Environment Court that the question of whether an EIS or SIS is required under section 112 of the EPA Act is a jurisdictional fact. This means that the Court could determine that fact for itself, and would not be limited to considering the reasonableness of the determining authorities' decision (Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231; Oshlack v Rous Water [2011] NSWLEC 73 ). Biscoe J relies on the decision in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 in which the Court of Appeal held that the question of whether a proposal was likely to significantly affect threatened species, and therefore whether an

SIS was required under what is now s 78A(8)(b) of the EPA Act, was a jurisdictional fact. In Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) [2013] NSWLEC 38, Pepper J of the Land and Environment Court also held thats 112(1) of the EPA Act gives rise to a jurisdictional fact that the Court is required to determine for itself on all the available evidence whether or not the activity is likely to significantly affect the environment.

The effect will be significant if it is "important" or "notable", "weighty" or "more than ordinary" (see Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd [2010] NSWLEC 48, and cases cited therein). It is also important to consider what constitutes the "environment".

The environment which needs to be considered is not only the area in which the activity is to be carried out, but can include the surrounding area. So in Kivi v Forestry Commission of NSW (1982) 4 7 LGRA 37, where the activity involved logging of 170 hectares of Goonimbar State Forest (of which 66 hectares were rainforest), Justice Cripps decided that the "environment" to be considered was not restricted to the area of the logging, but included at least the whole of Goonimbar State Forest. He also considered not only this particular logging proposal but the effect of logging as a whole in the State forest, in order to understand " the cumulative and continuing effect of the activity on the environment". In Kivi, the Court defined the relevant environment as extending beyond the specific area to be logged so as to include the question of cumulative impact. But the court has had to make it clear that impacts cannot be rendered insignificant by extending the scope of the "relevant" environment to include the whole of the State or region. In the end, the extent of the relevant environment will depend on the facts of each case. The significance of the effect on the environment may also be reduced if the environment is badly degraded (Bailey v Forestry Commission of NSW (1989) 67 LGRA 200 at p 212) . . The environment includes not just the natural environment but "all aspects of the surroundings of humans whether affecting any human as an individual or in his or her social groupings" (EPA Act, s 4(1)) . This clearly covers the built, cultural and social environment as well (see Drummoyne Municipal Council v Roads and Traffic Authority of NSW (1989) 67 LGRA 155).

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This point was brought out in Severn Shire Council v Water Resources Commission (1982) 47 LGRA 257, when Justice Cripps summed up the evidence relating to the likely impact of the proposed dam on the environment in the following manner: When constructed, it will have a direct effect on the long-term needs of Glen Innes. The construction of the dam will result in the closure of Shannan Vale Road and will make the Glen Legh Road more susceptible to flooding. The Red Range bridge will need to be rebuilt to give access to Glen Innes. The closure of the Shannan Vale Road will mean a number of people will be required to travel an additional seven kilometres to get to Glen Innes. The project will cost approximately $4,500,000 and will have a significant effect on the rating structure of the municipality. A large area of arable land will be flooded after the dam is completed. Furthermore, the fact that the dam is to be built will mean (or at least make it more likely) that a dam will not be built on the Mann River. More recently, the Land and Environment Court in Goldberg v Waverley Council [2008] NSWLEC 49 refused to approve the construction of a driveway on an unmade section of road under Part 5 for the sole reason that the driveway would be unsafe for people using it either intentionally or by accident. The Court noted the broad definition of environment in the EPA Act, and identified public safety as the relevant aspect of the environment.

The need for a species impact statement [6.220] SISs are used to assess the particular significance of the effect of actions on threatened species, populations and ecological communities, or their habitats.

A SIS must be submitted with a development application under Part 4 of the EPA Act if the proposal relates to land which is critical habitat, or it is likely to significantly affect threatened species, populations or ecological communities, or their habitats (EPA Act, s 78A(8)(b)). Whether a SIS is required under section 78A(8)(b) to accompany a development application has been held to be a jurisdictional fact, meaning that the court can determine the relevant fact (being whether a SIS is required) for itself (Timbarra Protection Coalition Inc v Ross Mining NL and others (1999) 46 NSWLR 55; Corowa v Geographe Point Pty Limited & Anor [2007] NSWLEC 121). Under Part 5 of the EPA Act, a determining authority must not carry out an activity or grant an approval for an activity that is likely to significantly affect the environment (including critical habitat) or threatened species, populations and ecological communities, or their habitats, unless it has been furnished with a separate SIS or a SIS incorporated into an EIS (EPA Act, ss 112(1), 112(1B)). In contrast to the position under section 78A(8)(b), the question of whether a SIS is required under Part 5 is a matter for the determining authority, and can only be challenged on the basis of the reasonableness of the determining authority's decision. However, recent case law has suggested otherwise (see [6.280]). A detailed discussion of the criteria used to determine whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats; exceptions to the requirement of an SIS where land has been biodiversity certified or a biobanking statement has been issued; and the contents of SISs can be found in Chapter 12, [12.1200].

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The timing of environmental and species impact assessment Initial assessment [6.230] The obligation to consider the environmental impact of an activity arises at the point of consideration of the activity (see Goldberg v Waverley [2007] NSWLEC 259). This would be when a determining authority is deciding whether to proceed with an activity (if it is also the proponent), or when the determining authority is considering whether to grant an approval for an activity.

For proponents who are also determining authorities, one would expect this consideration to begin as soon as the proposal is first discussed. For private proponents, there is no legal duty for them to consider environmental matters from the outset. However, in practice, the proponent must do so in order to determine what level of assessment, and what type of documentation is required to accompany their application. The initial assessment for both public and private proponents must be whether or not the activity is likely to have a significant effect on the environment (including critical habitat), or threatened species, populations or ecological communities, or their habitats, so that they can determine whether or not an EIS and/or a SIS is required.

When should the EIS/515 decision be mode? [6.240] Under Part 4, any EIS or SIS which is required must accompany the development application.

The formal position under Part 5 is that the EIS or SIS is only required immediately before the determining authority makes its decision. Depending on the type and scale of the proposal, however, the initial assessment may occur at an early stage, and may even occur at the time of the proponent considering whether the activity is viable. This will be the case where there are well ··· documented threatened species on the site, or the site comprises critical habitat. It will also be the case with large scale proposals with obvious environmental impacts. For other proposals, the significance of the impact of the proposal on the environment may only emerge at a later stage, and, in the case of private proponents, may only be considered after the determining authority specifically requests the proponent to consider the impacts of the proposal on certain aspects of the environment.

Preparing the EIS [6.250] An EIS or SIS is prepared by the person applying for development consent under Part 4 (EPA Act, ss 78A(8), 78A(8A)), by the person applying for approval under Part 5.1 (EPA Act, s 115Z(l)), or by the proponent under Part 5 (EPA Act, s 112(1)(a)(i); TSC Act, s 111(1)).

Whilst the EIS or SIS is prepared by or on behalf of the proponent, and not by an independent body, it must be prepared in accordance with requirements issued by the Secretary (see below).

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[6.260] A SIS has to be prepared in accordance with the provisions of the TSC Act (see [6.250]).

found that it is doubtful that an EIS could cover every aspect of a problem. The issue is whether the statement substantially complies with the legislative requirements, not whether it complies in every conceivable way.

The Regulation sets out in detail what an EIS required under Part 5 should cover (EPA Regulation, Schedule 2). An EIS must include the matters listed in Schedule 2 of the Regulation. Schedule 2 also sets out the process through which the Secretary issues Environmental Assessment Requirements - these must be contained in the EIS.

This means that it is difficult to challenge the validity of an EIS where there has been an apparently genuine attempt to comply with the requirements. Even if topics are omitted, this does not necessarily mean a lack of substantial compliance (see for example Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21).

What must be covered?

Content of an EIS [6.270] Schedule 2 of the Regulation states that an EIS must cover the following:

•

a summary of the environmental impact statement

• a statement of the objectives of the development, activity or infrastructure

• •

•

analysis of any feasible alternatives to the carrying out of the development, activity or infrastructure, having regard to its objectives, including the consequences of not carrying out the development, activity or infrastructure an analysis of the development, activity or infrastructure including (a)

a full description of the development, activity or infrastructure, and

(b)

a general description of the environment likely to be affected by the development, activity or infrastructure together with a detailed description of those aspects of the environment that are likely to be significantly affected, and

(c)

the likely impact on the environment of the development, activity or infrastructure, and

(d)

a full description of the measures proposed to mitigate any adverse effects of the development, activity or infrastructure on the environment, and

(e)

a list of any approvals that must be obtained under any other Act or law before the development or activity may be lawfully carried out

the reasons justifying the carrying out of the development or activity in the manner proposed, having regard to biophysical, economic and social considerations and the principles of ecologically sustainable development

The Secretary's requirements must be complied with (Prineas v Forestry Commission of NSW (1983) 49 LGRA 402), and a failure to lodge an EIS which complies with these requirements can result in any approval granted in reliance on that EIS being held to be invalid. However, not all deviations from the EIS requirements will automatically invalidate it. Courts have repeatedly held that, to be valid, an EIS need only comply substantially, rather than strictly, with the legislative content requirements. The relevant standard was outlined by Justice Cripps in Prineas v Forestry Commission of NSW (1983) 49 LGRA 402. His Honour held that "a superficial, subjective or non-informative environmental impact statement" would not comply with the Act. A statement will comply, however, if it is comprehensive and objective, and informs the decision-maker, the public and the Planning Department about the consequences of the activity. It is not invalid simply because it "does not cover every topic and explore every avenue advocated by experts". Justice Cripps

Case studies: Challenging an environmental impact statement [6.280] In Guthega Development Pty Ltd v Minister Administering the National

Parks and Wildlife Act (1986) 7 NSWLR 353, one ground of challenge to an EIS prepared for the development of a ski resort at Mount Blue Cow was that there was no adequate justification of the proposed activity in terms of economic considerations as required by the Regulation. The Court of Appeal held that this meant that the EIS should include material from which it could be reasonably inferred that the project had reasonable prospects of a sound economic future. But this did not mean that there had to be a feasibility study, including consideration of the capital cost of the project, estimated income and expenditure, and the return of capital or funds invested. In Warren v Electricity Commission of NSW (unreported, Land and Environment Court, 31 October 1990) the Court upheld the validity of an EIS which dealt with the health effects of high-voltage transmission lines, about which there was considerable scientific disagreement. In concluding that, for practical purposes, there was no cause for concern, the EIS acknowledged that there were competing views. The Court held that the EIS did not have to highlight the opinions of those who viewed the risks as being greater.

Public exhibition (6.290] Once an EIS is complete, a copy must be supplied to the Secretary. Arrangements must

also be made to put the EIS on exhibition and to invite public comment. This is done by the consent authority under Part 4 (EPA Act, s 79), the Secretary in relation to State significant development (EPA Act, s 89F), the determining authority under Part 5 (EPAAct, s 113(1)) or the Secretary under Part 5.1 (EPA Act, s 115Z(3)). Where there is more than one determining authority and a nominated determining authority has been identified by the Minister, then this body is responsible for exhibiting the EIS (EPA Act, s 110A(2)). Notice must be given to members of the public, inviting inspection and comment. Under Part 5, notice must be published in both a Statewide and a local paper on two occasions over a specified period (EPA Regulation, cl 234). The exhibition must last for at least 30 days, during which anybody can inspect the EIS and make written comments on the proposed activity or development (EPA Act, s 113(1)).

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There is no provision for placing SISs on public exhibition under EPA Act, Part 4. Under Part 5, SISs are subject to the same public exhibition requirements as EISs (EPA Act, s 113(8)). Under Part 5, a determining authority can restrict publication of any part of the EIS if it thinks this would be contrary to the public interest (EPA Act, s 113(2)). There is no equivalent to this provision under Part 4. Copies of the EIS can be put on sale (at no more than $25 each) by the consent authority or the determining authority (EPA Regulation, Schedule 2).

Review by the Planning Assessment Commission [6.300] Under Part 5, copies of any public comments which are made to a determining authority must be sent to the Secretary. The Planning Department is then allowed at least 21 days to decide what action to take before the determining authority can make its decision (EPA Act, s 113(3)). The Minister has the option of requesting a review by the Planning Assessment Commission of all or any of the environmental aspects of an activity which is likely to significantly affect the environment, or of a part of any such activity (EPA Act, ss 23D and 113(5)). If such a review is not requested, the Secretary can arrange to have the EIS, and any public comments examined within the Department (EPA Act, s 113(5)).

The findings and recommendations of any review must be forwarded to determining authorities (EPA Act, s 114(a)) and, ordinarily, also made public (EPA Act, s 113(6), EPA Regulation, cl 268V). Where a review is held, the Minister may also give advice to the determining authority on whether there are, in the Minister's opinion, environmental grounds preventing the activity going ahead or on whether any conditions ought to be attached to any approval (EPAAct, s 114(a)). But the Minister' s views, and the findings and recommendations of the Planning Assessment Commission, are not binding; they simply have to be taken into account by the determining authority.

The decision-maker [6.310] It is the determining authority that decides whether or not an approval should be given to an activity under Part 5.

However, where the proponent of development (other than a local or county council) is also a determining authority, and in the opinion of the proponent an EIS would be required if the proposal were assessed under Part 5, then the development can be declared by a State environmental planning policy (SEPP) to be State significant infrastructure and dealt with not under Part 5 but under Part 5.1 (EPA Act, s 115U(3)). Here State Environmental Planning Policy (State and Regional Development) 2011 is the relevant SEPP. Under Part 5.1, an approval is required from the Minister. EISs and SISs are not designed to replace decision-making processes, and the determining authority need not accept the conclusions contained in those documents (Prineas v Forestry Commission of NSW (1983) 49 LGRA 402 at 417; Jarasius v Forestry Commission of NSW (1988) 71 LGRA 79 at p 95; Bailey v Forestry Commission of NSW (1989) 67 LGRA 200 at p 210).

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[6.320]

Where there is more than one determining authority, each can effectively exercise a veto over the activity by refusing to give the go-ahead.

• • •

In making its decision, the determining authority may: approve the activity not approve of the activity impose conditions to eliminate or reduce the impacts.

Where the determining authority is the proponent of the activity, and assuming Part 5.1 does not apply, it may determine to:

• carry out the activity • refrain from carrying out the activity • modify the activity to eliminate or reduce the detrimental effect.

Case study: Where the determining authority is the proponent [6.320] If a determining authority is also the proponent of an activity, its power to modify an activity after environmental impact assessment is extremely broad.

In Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 104 LGERA 133, a challenge was brought against the decision of the Roads and Traffic Authority to approve the building of the MS East motorway in Sydney. An initial proposed route was the subject of an EIS and extensive public submissions were received. The Authority considered that there would be significant environmental impacts caused by the proposed route, and modified the proposal so that the road took a new route. That route produced a new range of environmental impacts on new people, and on a number of other areas. The applicant argued, in particular, that a determining authority could not "eliminate or reduce the impact" of an activity by modifying it to reduce one set of impacts while creating a range of new impacts. The proposed modifications were so significant that each, if proposed as an individual project, would have required an EIS. The Authority had not prepared a new EIS for the modifications or carried out a full public exhibition and participation process under the EPA Act. The Court of Appeal held by majority that the Roads and Traffic Authority and the Minister had not exceeded their authority under the Act. The concept of a "modification" to an activity must be understood in the light of the project as a whole. The Court held that the changes to the route and associated works, although deviating markedly in alignment and affecting different localities and different people, did not "radically transform" the activity. The authority therefore had the power to modify the proposal in the way proposed and carry it out without the need for a new EIS and a further public exhibition process. The Court also rejected a proposition that a "modification" must merely reduce or eliminate impacts without creating new adverse impacts. Justice Sheller added that a modification "was a change which might add to or subtract from the proposed activity". The substance of the activity continues, and a modification is "less than its wholesale rejection and replacement".

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[6.330) The above case study is not relevant where Part 5.1 of the EPA Act applies. There are

special procedures in Part 5.1 for modification of approvals granted for the carrying out of State significant infrastructure. A proponent who is dissatisfied with the decision of a determining authority has no right of appeal under the EPA Act. However, there may be appeal rights under the legislation under which an approval, consent or licence is required, (for example, the Protection of the Environment Operations Act 1997, see (6.300]). The Land and Environment Court may also have the functions of the determining authority, if it is otherwise hearing an appeal, pursuant to section 39(2) of the Land and Environment Court Act 1979 (see Goldberg v Waverley [2007] NSWLEC 259). However, any person can bring proceedings to remedy or restrain a breach of the EPA Act (see [6.300]). In such proceedings, the Court is only concerned with the legality of the decisionmaking process (judicial review), and not with the merits of the activity or the question of whether the activity should be allowed to proceed based on its environmental impacts (see [6.280]).

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Monitoring [6.350) There is nothing in the EPA Act which requires monitoring of the activity to assess its actual impact compared with the predictions in the EIS or SIS, and whether appropriate adjustments need to be made to the activity in light of this. However, in Guthega Development Pty Ltd v The Minister Administering the National Parks and Wildlife Act (1986) 7 NSWLR 353, suggestions were made that EPA Act, section 111 may entail a continuous monitoring of the activity. This has since been repeated by Justice Hemmings (]arasius v Forestry Commission of NSW (1988) 71 LGRA 79 at 95):

There is a strong argument that Part 5 contemplates in appropriate circumstances an environmental impact statement which adequately assesses the general concept of an activity without necessarily assessing in every case the detail of the site-specific impact of intended structures, activities and land use. A large-scale multi-stage project may additionally involve an inquiry as to the nature and extent of necessary continuous monitoring of the development, and also when and if site-specific impact should be evaluated in detail, and at what stage such detailed evaluation should occur. Often the requirements for the EIS or SIS issued by the Secretary will include an assessment of how the impacts of the proposed activity will be monitored.

Concurrence [6.340) If an SIS is required, and the consent authority or determining authority is not a

Minister, the consent authority or determining authority must obtain the concurrence of the Chief Executive of the Office of Environment and Heritage to the grant of the development consent or approval (EPA Act, ss 79B(3), 112C(l)). If the Chief Executive does not grant concurrence, consent or approval cannot be granted. If concurrence is granted, consent or approval (if also granted) must be consistent with the concurrence. In determining whether or not to grant concurrence, the Chief Executive must take into account certain mandatory matters, including (EPA Act, ss 79B(5), 112C(3); EPA Regulation, cl 244):

• the SIS • any assessment report • any public submissions • any relevant recovery plan or threat abatement plan • whether the proposal is likely to reduce the long-term viability of the species, population or ecological community in the region • whether the proposal is likely to accelerate the extinction of the species, population or ecological community • the principles of ecologically sustainable development • the likely social and economic consequences of granting or not granting concurrence.

There is an exception to the above where the Land and Environment Court is standing in the place of the consent authority when determining an appeal under sections 97 or 98 of the EPA Act. In those circumstances, the Court can grant consent in the absence of the concurrence of the Director-General of the Environment Department (Land and Environment Court Act 1979, s 39(6)).

Enforcement [6.360) As discussed above, a failure to comply with the environmental assessment provisions of Part 5 can be challenged by anyone in civil enforcement proceedings (EPA Act, s 123). However, the fact that a requirement of the Act has not been strictly complied with when an action is carried out does not necessarily mean that the action is invalid or unlawful, or that the courts will grant a remedy if that breach is proved.

The courts have recognised that not every provision of an Act requires strict compliance. So the fact that the EPAAct sets out a process before a determining authority decides to proceed with or approve an activity under Part 5 does not mean that any error in the process will invalidate the ultimate decision. The courts determine whether a particular breach is fatal to the validity of the decision by construing the Act and determining whether Parliament intended that strict compliance is necessary (Project Blue Sky Inc v Australian Broadcasting Association [1998] HCA 28). The courts also have a broad discretion as to what remedies it grants if a breach is found. In some cases, it may not make any orders at all, particularly if it regards the breach as trivial or if it considers the public interest would not be well served by making orders (see [6.280]). The courts may also postpone orders, or limit the operation of orders to soften their impact, where this is considered appropriate (see Jarasius v Forestry Commission of NSW (1988) 71 LGRA 79 at 102-107; Bailey v Forestry Commission of NSW (1989) 67 LGRA 200 at 216-217; Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 at 201-203).

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7 Commonwealth environmental assessment and approval Dr Emma Carmody

Controlled actions ......................................................................................................................................................... [7.20] Matters of national environmental significance .......................................................................................... (7 .40] World Heritage properties ...................................................................................................................................... [7.50] Matters of Commonwealth responsibility ................................................................................................... (7.300] Exemptions ................................................................................................................................................................... [7.330] Determining likely significant impact ............................................................................................................. (7.460] The assessment process ...................................................................................................................................... (7.560] Strategic assessment ............................................................................................................................................. (7.650] Approvals ...................................................................................................................................................................... (7.68 0] Public participation ................................................................................................................................................... (7.750] Government action ................................................................................................................................................... (7.890]

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[7.10) This chapter deals with the assessment and approval processes for proposed actions that affect matters of national environmental significance. The relevant legislation is Commonwealth legislation: the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) (EPBC Regs). At the time of writing, the Minister responsible for administering this legislation was the Minister for the Environment (the Minister). The relevant government department is currently the Department of the Environment.

[7.40]

• • •

chapte r 7 Commonwealth environmental assessment and approval

that the action will have no significant impact and approval is not needed (s 75) to give approval to the action, with or without conditions (s 133 ). to refuse to approve the action (s 133).

Even residential subdivisions may involve the Commonwealth if, for example, they are likely to have a significant effect on a listed ecological community. The vast majority of controlled actions are approved by the Minister. At the time of writing, only 18 out of the 806 projects assessed under the EPBC Act have been refused.

The EPBC Act runs to some 528 sections and a further 59 pages of schedules. It is the Commonwealth's main tool for environmental protection. In summary, the EPBC Act has four important functions in protecting the environment. It provides for:

Case study: Clearing cassowarry habitat in North Queensland

• assessment and approval processes for proposed actions likely to have a significant impact on matters of national environmental significance • management and protection of Commonwealth protected areas (see Chapter 4) • the conservation of biodiversity and heritage (see Chapters 12 and 17) • enforcement action to ensure compliance with obligations imposed under law.

[7.30) A developer in North Queensland referred a proposed action, the clearing of land for a subdivision, to the Minister for approval. The land was possible habitat for the listed cassowarry. Before the Minister had made a determination on the referral, the land was cleared. The developer was prosecuted in the Local Court and fined for clearing before getting a determination from the Minister. Ultimately the Minister determined that the action was not a "controlled action" and no approval was required.

This chapter deals with assessment and approval by the Commonwealth of matters which the Commonwealth considers are its responsibility, and also the enforcement by the Commonwealth of compliance with assessment and approval obligations under the EPBC Act.

Matters of national environmental significance Controlled actions [7.20] Part 3 of the EPBC Act requires Commonwealth assessment and approval for actions that are likely to have a significant impact on one of the following:

• actions that take place on, or affect, Commonwealth land or waters • actions that take place on, or affect, Commonwealth heritage places overseas • actions carried out by Commonwealth agencies • actions affecting matters the Commonwealth considers are of national environmental significance, regardless of who is involved and where the action takes place.

[7.40] Matters of NES were chosen by the Commonwealth Government having regard to what it saw as its role and responsibilities in protecting the environment In doing so the Government was mindful of the Intergovernmental Agreement on the Environment (IGAE) which it signed with the States in 1992 (see [1.540]). The IGAE noted the following as Commonwealth responsibilities:

• •

matters of foreign policy relating to the environment and, in particular, negotiating and entering into international agreements relating to the environment and ensuring that international obligations relating to the environment are met by Australia ensuring that the policies or practices of a State do not result in significant adverse external effects in relation to the environment of another State or the lands or territories of the Commonwealth or maritime areas within Australia's jurisdiction

Something a person proposes to do that requires approval under a provision in Part 3 of the EPBC Act is a controlled action. An "action" is defined to include a project, a development, an undertaking, an activity or series of activities and an alteration of any of these things (s 523 ). Any section in Part 3 of the EPBC Act that requires approval to be obtained before an action is carried out is a controlling provision (s 67).

• facilitating the cooperative development of national environmental standards and guidelines • the management (including operational policy) of living and non-living resources on land

In summary, the controlling provisions deal with actions affecting matters listed as being of national environmental significance (NES), and with matters of Commonwealth responsibility.

The matters of NES listed in the EPBC Act largely derive from the Commonwealth's participation in selected international agreements, primarily those relating to nature conservation. These matters of national environmental significance are:

Under the EPBC Act, it is an offence to carry out an action without approval from the Minister if it has, will have, or is likely to have a significant impact on a matter of NES listed in the Act. (See EPBC Act, Ch 2, Pt 3 Div 1 for the various offence sections). A person carrying out an action which might have a significant impact on a matter of NES is directly responsible for referring it to the Minister (s 68). The Minister can decide:

which the Commonwealth owns or which it occupies for its own use.

• world heritage (see [7.50]) • national heritage (see [7.110]) • Ramsar wetlands (see [7.140]) • threatened species and communities (see [7.190])

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• listed migratory species (see [7.240]) • protection from nuclear actions (see [7.250] ) • Commonwealth marine areas (see [7.270]) • the Great Barrier Reef Marine Park (see [7.280])

•

water resources impacted by coal seam gas (CSG) development or large coal mmmg development (see [7.700] ).

In some cases, matters listed above do not require approval by the Minister. These exemptions are discussed in [7.350].

World Heritage properties [7.50] World Heritage properties are:

• those listed under the World Heritage Convention • any property declared by the Minister to be a World Heritage property because it has been submitted by the Commonwealth to the World Heritage Committee as suitable for listing • any property declared by the Minister to be a World Heritage property because the Minister

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Management [7.80] The development of management plans for world heritage properties is discussed in Chapter 4 at [4.630] and in Chapter 17 at [17.750]. World Heritage management principles are required by section 323 of the EPBC Act, and are found in Schedule 5 of the EPBC Regulations (reg 10.01) They state that the primary purposes of managing the natural heritage and cultural heritage of a declared world heritage property must be to:

• identify the world heritage values of the property • protect these values • conserve them • present them (that is, allow them to be seen or experienced) • transmit them to future generations • rehabilitate them, if appropriate.

These principles are in accordance with Australia's obligations under the World Heritage Convention . Reg 10.01 further provides for public consultation and ongoing community input in relation to the management of World Heritage properties.

is satisfied that it is likely to have world heritage values and these are under threat (ss 12-14).

What is protected? [7.60] A person cannot, without approval, take an action which has, will have or is likely to have

a significant impact on the world heritage values of a world heritage property. It is the values for which it was listed that are protected under the legislation, not the property itself (ss 12, 15A). World heritage values of "cultural heritage" (monuments, groups of buildings, and sites) and "natural heritage" (natural features, geological and physiographic formations, and natural sites) are defined by the Convention as being of "outstanding universal value" from the point of view of history, art, science, aesthetics, ethnology, anthropology, conservation or natural beauty (World Heritage Convention, Articles 1 and 2).

Case study: Dredging Hinchinbrook Channel [7.70] The Port Hinchinbrook development at Cardwell in Queensland involved dredging part of Hinchinbrook Channel, damaging part of the listed Great Barrier Reef world heritage property.

The Minister was satisfied that the values of the property would not be significantly affected (Friends of Hinchinbrook Society Inc v Minister for Environment (No 2) (1997) 69 FCR 28). There is room for considerable difference of opinion about whether a development has a significant impact on the world heritage values of a property.

Environmental impact assessment [7.90] The management principles provide that before an action likely to have a significant impact on world heritage values is taken, whether inside or outside of a world heritage property, there should be an assessment of its likely impact on the property's World Heritage values (reg 10.01, Schedule 5, cl 3). This assessment should be carried out under a statutory environmental impact assessment and approval process accredited by either the Commonwealth or a State. An action should not be approved if it would be "inconsistent with the protection, conservation, presentation or transmission to future generations of the World Heritage values of the property" (Sch 5, cl 3.04). The assessment process should (cl 3.03):

• identify the world heritage values of the property that are likely to be affected by the action • examine how these world heritage values might be affected • provide adequate opportunity for public consultation. World Heritage properties in NSW [7.100] World heritage properties listed in NSW are:

• the Gondwana Rainforests of Australia {previously the central eastern rainforest reserves), inscribed in 1986 and extended in 1994) • the Willandra Lakes region, inscribed in 1981 • the Greater Blue Mountains area, inscribed in 2000 • the Lord Howe Island group, inscribed in 2007 • the Sydney Opera House, inscribed in 2007 • the Australian Convict Sites, inscribed on 31 July 2010, four of which are in NSW.

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A full description of these properties, including their values, can be found at http:// http:// www.environment.gov.au/heritage/places/world-heritage-list or www.environment.nsw.gov.au/parktypes/WorldHeritageListedAreas.htm.

National heritage places

[7.160]

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Ramsar wetlands are located on different types of land including national parks, nature reserves, State forests, Crown land and private properties. The Gwydir wetlands, for example, are on private land used for farming. There are 16 Ramsar wetlands in the Murray-Darling Basin (Basin). These wetlands are also provided for in the Water Act 2007 (Cth) and Basin Plan 2012 (Cth), which seek to increase the amount of water available for the environment across the Basin.

[7.110] National heritage places (s 15B) are those listed on the National Heritage List by the

Minister (ss 324C, 324JJ). See generally, [17. 760] . To be listed, a place must have "outstanding heritage value to the nation" because of (reg 10.0lA):

• its place in Australia's natural or cultural history • the presence of uncommon, rare or endangered aspects of Australia's natural or cultural history • its potential to yield information that will contribute to an understanding of Australia's natural or cultural history • its importance in demonstrating the principal characteristics of a class of Australia's natural or cultural places or environments • its possession of aesthetic characteristics valued by a community or cultural group • its importance in demonstrating a high degree of creative or technical achievement at a particular period • its strong or special association with a particular community or cultural group for social, cultural or spiritual reasons • its special association with the life or works of a person, or group, of importance in Australia's natural or cultural history • its importance as part of indigenous tradition. Listed national heritage places

[7.120] Places in NSW include both natural and cultural heritage and range from the Australian

Listed Ramsar wetlands in NSW [7.150] There are 12 Ramsar wetlands listed in NSW. They are:

1.

Towra Point Nature Reserve

2.

Hunter Estuary Wetlands

3.

Macquarie Marshes

4.

Little Llangothlin Nature Reserve

5.

Blue Lake

6.

Lake Pinaroo (Fort Grey Basin)

7.

Gwydir Wetlands

8.

Myall Lakes

9.

Narran Lake Nature Reserve

10.

Fivebough and Tuckerbil Swamps

11.

NSW Central Murray State Forests

12.

Paroo River Wetlands

A full listing and map of wetland locations can be found at http://www.environment.gov.au/ water/wetlands/publications/factsheet-australias-ramsar-sites. Information about sites located in NSW can be found at: http://www.environment.nsw.gov.au/wetlands/RamsarWetlands.htm.

Alps National Parks and Reserves to Brewarrina Aboriginal fish traps. The full list of National Heritage Places can be found at http://www.environment.gov.au/ heritage/places/national-heritage-list.

What is protected? [7.130] A person cannot, without approval, take an action which has, will have or is likely to have a significant impact on the national heritage values of a national heritage property. Again, it is the values for which it was listed that are protected under the legislation, not the property itself (ss 15B, 15C).

Heritage conservation is covered in detail in Chapter 17.

Ramsar wetlands [7.140] Ramsar wetlands are wetlands of international importance listed under the international multilateral Convention on Wetlands, known as the Ramsar Convention.

What is protected? [7.160] A person cannot, without approval, take an action which has, will have or is likely to have a significant impact on the ecological character of a declared Ramsar wetland (ss 16, 17B). This includes internationally listed wetlands as well as those with the potential to be listed that are under threat (ss 17, 17A) (see [4.630]). It is the ecological character of the wetland that is protected under the EPBC Act, not the wetland itself. The term "ecological character" is referred to in the Ramsar Convention and defined in a meeting of the body governing the Convention ("Conference of the Parties") as "the sum of biological, physical, and chemical components of the wetland ecosystem and their interactions which maintain the wetland and its products, functions and attributes."

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[7.170]

Ecological thinning in the Central Murray State Forests - controlled action [7.170] The Central Murray State Forests are located in south-western NSW and comprise the

Millewa Forests, Werei Forests and Koondrook Forests. Logging pre-dated the listing of these forests as a Ramsar wetland in 2003 and was permitted to continue, providing the ecological character of the wetland was protected. Declining health of river red gums in these forests prompted the NSW Office of Environment and Heritage (OEH) and the Victorian Department of Environment and Primary Industries (DEPI) to collaborate on the development of an "ecological thinning" trial. Ecological thinning involves reducing tree density for the purposes of improving the overall health of a forest. The method is controversial as the science behind the process is largely untested. Critics argue that it will have a negative impact on local waterways, cause soil contamination and suffocation (due to excess mulch), reduce food for wildlife and may introduce new pests and diseases into the area. Bird advocates contest that it will result in less nesting areas for local birdlife. The trial, which involves 198 hectares, has been declared a controlled action as it is likely to have a significant impact on three matters of NES: the Barmah-Millewa Ramsar site, listed threatened species and communities and listed migratory species. The Public Information Report produced by OEH and DEPI for assessment of the proposed trial under the EPBC Act is available at http://www.environment.nsw.gov.au/resources/ protectedareas/14008 3ecothinredgum.pd£. In October 2014, it was reported that DEPI had withdrawn from the project and would be working with NSW to develop an appropriate management strategy for river red gums . However, NSW has not officially abandoned the trial. Furthermore, it is still listed as a "controlled action" on the Commonwealth Department of Environment website (that is, it has not been listed as withdrawn by the proponents), though it is yet to be determined. See http:// www.environment.gov.au/cgi-bin/epbc/epbc_ap.pl?name=current_referral_detail&proposal_id= 6713. The ecological character description for the Central Murray State Forests can be found at: http://www.environment.gov.au/system/files/resources/97a 7ddbc-d7 4a-43a 7-a4c79c4a 1c48b290/files/ecd-nsw-central-murray-forests.pdf.

Man agement

[7.230]

chapter 7 Commonwealth environmental assessment and approval

Threatened species and communities [7.190] A brief overview of the categories of threatened species and communities is presented

below. Threatened species and communities are provided for in Part 13 of the EPBC Act. For a full discussion, see [12.150].

Threatened species [7.200] A species may be listed in one of the following categories:

• • • • • •

extinct extinct in the wild critically endangered if it faces an extremely high risk of extinction in the wild in the immediate future endangered if it faces a very high risk of extinction in the wild in the near future vulnerable if it faces a high risk of extinction in the wild in the medium-term future conservation dependent if the species is the focus of a specific conservation program, the cessation of which would result in the species becoming vulnerable, endangered or critically endangered. Alternatively, a species of fish that is the subject of plan of management which is necessary to maintain its conservation status may also be defined as "conservation dependent."

Thre atened communities [7.2 1OJ A threatened ecological community may be listed in one of the following three

categories: 1. critically endangered, if it is facing an extremely high risk of extinction in the wild in the immediate future 2. endangered, if it is not critically endangered but is facing a very high risk of extinction in the wild in the near future 3. vulnerable, if it is not critically endangered or endangered but is facing a high risk of extinction in the wild in the medium-term future.

[7.180] The development of management plans for Ramsar wetlands is discussed in Chapter 4 at

[4.630]. The contents of these plans reflect the obligations outlined in the Ramsar Convention (reg 10.02, Schedule 6) . Accordingly, a management plan for a Ramsar wetland should (amongst other things):

• describe the ecological character of the wetland, and the characteristics that make it a wetland of international importance under the Convention • state what must be done to maintain its ecological character • state mechanisms to deal with the impacts of actions that individually or cumulatively endanger its ecological character • state whether the wetland requires rehabilitation, and if so, explain how this will be achieved.

W hat is protecte d? [7.220] A person cannot, without approval, take an action which has, will have or is likely to

have a significant impact on a listed threatened species or community (ss 18, 18A). It is the species or community as a whole which is protected.

Protection of critical habitat [7.230] The Commonwealth Minister may identify and list habitat critical to the survival of a listed threatened species or ecological community. Details of this identified habitat are recorded in a register of critical habitat (s 207 A).

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(7.240)

Listing as critical habitat provides some protection. It is an offen~e for a person to ta~e an action they know will significantly damage the critical habitat of a listed threatened species or ecological community, but only if the critical habitat is in a Commonwealth area (s 207B). The only critical habitats that have been listed to date are:

• the remote habitat of three species of albatross • the habitat of the black-eared miner in South Australia • 20 ha of grassland in the ACT, where the Ginninderra peppercress grows. Full details of the species and communities listed in the various categories can be found at: http://www.environrnent.gov.au/biodiversity/threatened. The Register of Critical Habitat can be found at: http://www.environment.gov.au/cgi-bin/ spra t/pu blic/publicregisterofcri ticalha bit at. pl.

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• decommissioning or rehabilitating any facility or area in which an activity described above has been undertaken • any other type of action set out in the Regulations (see reg 2.01, which states that an action includes establishing, significantly modifying, decommissioning or rehabilitating a facility where radioactive materials at or above the specified activity level are, were, or are proposed to be used or stored).

What is a Jorge-scale disposal facility? [7.260] A facility used for the disposal of radioactive materials at or above the specified activity level is defined as "large-scale" (reg. 2.03).

Commonwealth marine area Migratory species [7.240] A person must not, without approval, take an action that has, will have, or is likely to

have, a significant impact on a listed migratory species (ss 20, 20A). Listed migratory species include species listed in: appendices to the Bonn Convention (the Convention on the Conservation of Migratory Species of Wild Animals) under which Australia is a range state the Agreement Between the Government of Australia and the Government of the Peoples Republic of China for the Protection of Migratory Birds and their Environment (CAMBA)

• • • the Agreement Between the Government of Australia and the Government of Japan and for the Protection of Migratory Birds and Birds in Danger of Extinction and their Environment (JAMBA)

• an Agreement Between the Government of Australia and the Government of the Republic of Korea for the Protection of Migratory Birds (ROKAMBA). An up-to-date list of listed migratory species can be found at http://www.environment.gov.au/ cgi-bin/sprat/public/publicshowmigratory.pl.

Nuclear actions

[7.270] A person must not, without approval, take an action in the Commonwealth marine area that has, will have or is likely to have a significant impact on the environment (ss 23(1), 24A).

Further, a person must not, without approval, take an action in the "Australian Jurisdiction" that has, will have or is likely to have a significant impact on the Commonwealth marine area (ss 23(2), 24A). This includes Australia's land and waters including the exclusive economic zone {extending 200 nautical miles offshore) and the continental shelf (see s 5(5)). There are other detailed provisions relating to the impacts of fishing (s 23(3), 23(5), 23(6)). The Commonwealth marine area includes any part of the sea that is not State or Northern Territory waters, and that is within Australia's exclusive economic zone and/or over the continental shelf of Australia. This includes the water, seabed and airspace (s 24). Generally, the Commonwealth marine area stretches from three nautical miles to two hundred nautical miles from the coast. By way of illustration, discharge of waste from a pipe at the shoreline from a land-based activity is only a controlled action if it is likely to have a significant impact on the environment at least three nautical miles from the shore. The onus is on a proponent to refer an action (s 68), though States and Territories, as well as a Commonwealth agency with administrative responsibility for a proposal may refer actions to the Minister (ss 69, 71).

[7.250] A person must not take a "nuclear action" without approval (ss 21, 22A). Nuclear

actions include (s 22): establishing or significantly modifying a nuclear installation

• • transporting spent nuclear fuel or radioactive waste products arising from reprocessing • establishing or significantly modifying a facility for storing radioactive waste products arising from reprocessing • mining or milling uranium ore (excluding operations for recovering mineral sands or rare earths) • establishing or significantly modifying a large-scale disposal facility for radioactive waste (see [7.260])

Great Barrier Reef Morine Pork [7.280] A person must not, without approval, take an action in the Great Barrier Reef Marine

Park that has, will have or is likely to have, a significant impact on the environment. Further, a person must not take an action outside the Great Barrier Reef Marine Park but in the Australian jurisdiction that has or will have or is likely to have a significant impact on the environment in the Great Barrier Reef Marine Park (ss 24B and 24C). This is qualified by section 43, which allows an action to be taken in a zone of the Park if it is for a purpose for which, under the zoning plan made under the Great Barrier Reef Marine Park Act 1975 (Cth), the zone may be used or entered without permission.

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[7,290)

Accident on the Reef [7.290] The immediate damage resulting from the 3 April 2010 grounding of a bulk carrier on the Great Barrier Reef, a World Heritage site covered approximately 2.5 km, with reef scarring and potentially toxic paint residue having been found. The coral and sea bed structure was completely crushed in some areas and approximately three tons of oil was leaked into the sea. Officers of the ship were charged with breaches of the Great Barrier Reef Marine Park Act 1975, not the EPBC Act.

Matters of Commonwealth responsibility [7.300] As well as matters of NES, the EPBC Act controls actions on or affecting Commonwealth land and actions by Commonwealth agencies.

Actions on or affecting Commonwealth land [7.310] A person must not, without approval, take an action on Commonwealth land that has,

will have or is likely to have a significant impact on the environment (ss 26(1), 27A(l), 27A(2)). An action taken anywhere in the Australian jurisdiction that affects Commonwealth land is also regulated if it has, will have or is likely to have a significant impact on Commonwealth land (ss 26(2), 27A(3), 27A(4)).

Actions by Commonwealth agencies [7.320] The Commonwealth, including agencies of the Commonwealth, must not take any

action anywhere without an approval if that action is likely to have a significant impact on the environment anywhere (s 28). This catch-all provision is there to ensure that the Commonwealth assesses its own actions.

Exemptions [7.330] An action that would normally be regulated under one of the provisions discussed above

does not require approval from the Minister under the EPBC Act if it falls within one of a number of exemptions. These are listed below, and then each is subsequently discussed in more detail.

• The action is approved by a State or Territory, and taken in accordance with a management arrangement or authorisation process that has been accredited bilaterally. • There has been a declaration by the Minister. • The action is a forestry operation under a regional forest agreement. • It is an authorised action that takes place in the Great Barrier Reef Marine Park. • The action is exempted under section 160. • The action is exempted in the national interest. • The action is exempted for reasons of national security or emergency.

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• The action is authorised by a facility installation permit under the Telecommunications Act 1997 (Cth). • The action is undertaken in a specified manner. • The action was authorised before the Act commenced. Actions declared in a bilateral agreement [7.340] Approval is not required if the action is approved by a State or Territory in accordance with a management arrangement or authorisation process that has been accredited bilaterally (ss 29, 46).

At the time of writing, bilateral "approval" agreements for each State and Territory were in draft form. In order to become law, these draft agreements must be tabled by Parliament and survive any potential notice of motion for disallowance. Environment groups have expressed opposition to bilateral approval agreements, arguing that State and Territory laws do not meet the accreditation requirements set out in the EPBC Act or the standards outlined by the Commonwealth in its 2014 publication entitled Standards for Accreditation of Environmental Approvals under the Environment Protection and Biodiversity Act 1999. It has also been argued that the Commonwealth is ultimately responsible for ensuring that Australia meets the international legal obligations which underpin the Act, and that States often have conflicting interests as they benefit directly from the projects that they are approving.

Declarations by the Minister [7.350] The Minister may declare in writing that an action does not require approval if it has

been approved by the Commonwealth in accordance with a management arrangement or authorisation process that has been accredited by the Minister (ss 32 and 33 ). Several such declarations, concerning fisheries, have been made following strategic assessment (see [7.650]) and endorsement of plans of management. Actions approved in accordance with such a plan do not require approval, and an endorsed plan is an "accredited management plan" for the purposes of the declaration. The Minister may also declare that approval is not needed where the action is in an area covered by a Bioregional plan (see s 176) and the action is in accordance with the Bioregional plan. Bioregional planning provides for a landscape based approach to biodiversity conservation, including matters of national environmental significance. It can be carried out in partnership with State and Territory governments where a bioregion is not wholly within a Commonwealth area.

Marine Bioregional Planning [7.360] In 2011, draft Marine Bioregional Plans for the North-west, South-west, Temperate east

and South marine regions were released for public exhibition. These plans were finalised in 2012 and describe the marine environment and conservation values for each region, outline biodiversity objectives, identify conservation priorities and specify strategies and objectives to

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[7.370]

meet these priorities. The Plans themselves are not legally binding instruments. However, the Minister is required to have regard to them when making decisions under the EPBC Act that relate to any of the four regions covered by a Plan (see http://www.environment.gov.au/marine/ marine-bioregional-plans).

Forestry operations [7.370] A regional forestry agreement (RFA) is an agreement between a State and the Commonwealth which sets out how a particular area of forest is to be managed, having regard to certain criteria outlined in the Regional Forests Agreement Act 2002 (Cth). Forestry operations that are subject to a RFA do not require approval under the EPBC Act as long as they are undertaken in accordance with that agreement (see EPBC Act, Pt 4, Div 4, discussed at [13.30]). There are currently 10 RFAs in place across four States, namely NSW, Victoria, Western Australia and Tasmania. There is considerable debate surrounding the extent to which these agreements result in the sustainable management of forests and protect areas of high conservation value. For example, it has been argued that RFAs are not properly enforced, resulting in the destruction of important habitat. The 2009 independent review of the EPBC Act (the "Hawke Report") recommended that the EPBC Act be amended to allow the Minister to apply the Act if a statutory review of a RFA indicated (amongst other things) "serious non-performance" with the terms of that RFA. At the time of writing, this recommendation had not been implemented by the Commonwealth. See The Australian Environment Act: Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (October 2009), the Hawke Report; see http://www.environment.gov.au/epbc/review/publications/final-report.html.

Case study: Brown v Forestry Tasmania (No 4] and Forestry Tasmania v Brown [2007] FCAFC 186 [7.380] Brown v Forestry Tasmania (No 4) (2006) 157 FCR 1; [2006] FCA 1729;

Forestry Tasmania v Brown (2007) 167 FCR 34; [2007] FCAFC 186 Senator Bob Brown made an application under s 475 of the EPBC Act seeking an injunction to restrain Forestry Tasmania from logging in the Wielangta State Forest. Senator Brown alleged that the operations being undertaken breached s 18(3) of the EPBC Act, which states that an action that has, will have or is likely to have a significant impact on a listed threatened species included in the endangered category, is only permissible if approved by the Minister. In this case, the relevant species were the Tasmanian wedge-tailed eagle, the broad-toothed stag beetle and the swift parrot. Senator Brown also sought three declarations: that the Tasmanian Regional Forestry Agreement was not a RFA for the purposes of the EPBC Act; that the forestry operations in the Wielangta State Forest were likely to have a significant impact on several specified threatened species; and that the forestry operations would not be undertaken in accordance with the RFA. Justice Marshall of the Federal Court found that the Tasmanian Regional Forestry Agreement was a RFA for the purposes of the Regional Forests Agreement Act 2002 (Cth). The Court also held that existing and proposed forestry operations were likely

[7.410]

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to have a significant impact on the species in question. However, it held that Forestry Tasmania was not undertaking its forestry operations in accordance with the RFA (as protecting the species was a condition of the RFA). As a consequence, the exemption for approval under the EPBC Act no longer applied. These findings were overruled by the Full Court of the Federal Court. The Full Court held that the Tasmanian RFA did not require Forestry Tasmania to explicitly protect the three listed species, only to set up a comprehensive, adequate and representative reserve system (CAR) as per the requirements of the Regional Forests Agreement Act 2002. As the RFA provided for a CAR, the forestry operations were validly exempted from further approval under the EPBC Act.

Great Barrier Reef Marine Park [7.390] Approval is not required if the action is taken in the Great Barrier Reef Marine Park and is authorised by certain instruments issued under the Great Barrier Reef Marine Park Act 1975 (Cth) (s 43).

Exemptions under section 160 [7.400] In some cases, a Commonwealth agency need not obtain approval from the Minister, but need only obtain and consider advice. These cases are either listed in the EPBC Act (ss 160(2)(a) - (c)) or prescribed in regulation 6.01 made under section 160(2)(d).

Cases that do not need approval are:

• Commonwealth overseas aid projects • management plans for aircraft operations or major airport development • actions authorised by a permit under the Environment Protection (Sea Dumping) Act 1981 (Cth) (see [9.2330]) • actions authorised by a Basel permit under the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) • actions authorised by a permit or an exemption certificate under the Sea Installations Act 1987 (Cth). In these cases, approval is not required if the action has been authorised by a government decision and the Minister's advice has been considered.

Exemptions in the national interest [7.410] Approval is not required if the Minister declares that it is in the national interest to grant an exception (s 158). This happens rarely. In 2000 the Minister granted a general exemption for all actions taken in accordance with the National Plan to Combat Pollution of the Sea by Oil and Other Noxious and Hazardous Substances. In September 2009 the Minister exempted the drilling of a relief well to stop the spill from the Montara oil well.

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[7.420]

[7.480]

chapter 7 Commonwealth environmental assessment and approval

Cases of national security or emergency

Determining likely significant impact

[7.420] An action by the Commonwealth does not require approval if the Minister declares that the Act does not apply to it for reasons of national security or emergency (s 28(3)).

[7.460] Where a proposal may have a significant impact on a matter of national environmental significance, it must be referred to the Minister for consideration. The Minister makes the final decision on whether there is likely to be a significant impact, and thus whether the action is a controlled action.

Telecommunications facilities [7.4:J0] Approval is not required if an action (such as erecting a mobile phone tower) is authorised by a facility installation permit granted under the Telecommunications Act 1997 (Cth) (Sch 3, cl 28).

The only qualification is that the Australian Communication Authority must consult the Environment Secretary before issuing a facility installation permit. "Environment Secretary" means the Secretary to the Department responsible for the administration of the Act (see Sch 3, reg 2).

Actions taken in a particular manner [7.440] Some actions do not require approval if they are to be taken "in a particular manner"

(s 77 A) . The Minister, in giving a notice, can specify how the action is to be carried out. It is an offence to carry out an action in a manner different from that specified. The Hawke Report (A Hawke, Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999, October 2009) found that "particular manner" decisions cause problems for compliance and enforcement, including difficulty in interpreting whether an action is "inconsistent" with such a provision and "particular manner" provisions being so vague as to be difficult to monitor and enforce (at 16.41-16.43).

Who can refer a proposal? [7.470] If a person who proposes an action thinks that it may be a controlled action, they must refer it to the Minister (s 68(1)). Other ways in which a matter may be referred are:

•

A State or Territory government or agency that has responsibilities relating to the proposed action can refer the proposal to the Minister (s 69). This includes a local council (see s 528). But there is no requirement for these bodies to refer actions.

• The Minister may request the person who proposes the action to refer it (s 70). If no referral is made within the required time, the Minister can deem the action to have been referred. • A Commonwealth agency that has responsibilities relating to the proposed action can refer it to the Minister (s 71 ).

Anyone may supply information that might influence the Minister to request that the matter be referred. However, members of the public have no power to refer proposals.

Supplying information in a referral [7.480] Information that must be provided in a referral is outlined in Schedule 2 to the Regulations.

The referral must state (reg 4.03; Sch 2):

Actions with prior authorisation [7.450] There are two sections in the EPBC Act which exempt actions with prior authorisation.

Section 43A provides that approval is not required for a use of land, sea or seabed that was authorised by a specific environmental authorisation immediately prior to the commencement of the Act and which continues to be in force. An example of an environmental authorisation would be a development consent issued by a State government. Section 43B provides that approval is not required for an action that is a lawful continuation of a use of land, sea or seabed that was occurring immediately before the commencement of the Act. This exception is the equivalent of the existing use provisions in the Environmental Planning and Assessment Act 1979 (see [1.2 80]). Like those provisions, it does not allow an existing use to be enlarged, intensified or expanded without consent.

• a description of the proposal • is the nature and likely impacts of the proposal, as well as details regarding the source, currency and reliability of this information • measures to avoid or reduce impacts • the environmental record of the person or company proposing to take the action • what uncertainties, if any, are in the information. It is an offence under the Act to give false or misleading information (ss 489 - 491).

These provisions are important. Environmental impact statements at the State level often contain assertions that have an air of authority but, on examination, prove to be either highly qualified or simply matters of opinion.

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[7.490]

Case study: A misleading referral

[7.520]

ch apt e r 7 Commonwealth environmental assessment and approval

What is significant?

[7.490) Mees v Roads Corporation (2003) 128 FCR 418; [2003] FCA 306 dealt

with a proposal to build a section of freeway. The applicant argued that the information in the referral was misleading: it failed to mention the strong chance that a freeway link (the final section of freeway linking two other sections of road) would be built across an area of environmentally sensitive land. The court held that there was in fact a strong chance that the link would be built, and that the failure to mention this in the referral was misleading. In doing so the court had regard to cases under what was then the Trade Practices Act 1974 (Cth) where silence has been held to constitute misleading conduct. The court noted that the Minister had no fact-finding role in the process and relied on information provided in the referral. The purpose of the EPBC Act is to protect the environment: if the Minister had to make determinations about proposals without the full information required by the Act and Regulations, the Act's purpose would be subverted.

What impacts? [7.500] In dealing with the EPBC Act it is important to understand how broadly an action's

impact should be considered. The courts have required a sufficient link between the action and the impacts, but once that link has been demonstrated, both direct and indirect effects are to be considered. For example, in the Nathan Dam case (Queensland Conservation Council Inc v Minister for Environment and Heritage (2004) 139 FCR 24; [2004] FCAFC 190), the Minister had decided that the only "relevant impacts" of the proposal that had to be assessed were the direct impacts of the construction of the darn on listed species and communities. The potential impacts of irrigation by other people using water from the darn were not impacts of the referred action. The Court held that the ordinary meaning of "impact" included the indirect consequences of an action and may include the results of acts by someone other than the principal actor. Subsequently the EPBC Act was amended to provide limits to the extent of the meaning of "impact". Section 52 7E( 1) now provides that where consequences flow indirectly from an action, the question is generally whether the action is a substantial cause of those consequences. However, special provisions apply where a person takes an action and as a consequence another person takes a secondary action which has not been requested by the first person. In these circumstances, the general position is that the environmental consequences of the secondary action need only be considered by the first person if the primary action facilitates the secondary action to a major extent and the secondary action and its consequences were reasonably foreseeable (s 527E(2)).

Administrative guidelines [7.510) The Commonwealth has published three separate "significant impact guidelines" to

provide proponents, governments and the Minister with guidance as to whether an action may have a significant impact. 1.

Matters of National Environmental Significance, Significant Impact Guidelines 1.1 Act 1999 (2013) (General Guidelines)

2.

Significant impact guidelines 1.2 - Actions on, or impacting upon, Commonwealth land and Actions by Commonwealth Agencies (2006) (Commonwealth Guidelines)

3.

Significant Impact Guidelines 1.3: Coal seam gas and large coal mining developments impacts on water resources (2013) (CSG and Coal Guidelines).

The Coal and CSG Guidelines were created following the insertion of a tenth matter of national environmental significance, namely the "water trigger" (see [15.130]). The Commonwealth Guidelines and CSG and Coal Guidelines are to be read in conjunction with the General Guidelines. The meaning of "significant" is subjective, and the Minister or, ultimately the courts, must decide whether an impact is significant. However, the General Guidelines state that: A "significant impact" is an impact which is important, notable, or of consequence, having regard to its context or intensity. Whether or not an action is likely to have a significant impact depends upon the sensitivity, value, and quality of the environment which is impacted, and upon the intensity, duration, magnitude and geographic extent of the impacts. This is consistent with Justice Branson's interpretation of "significant impact" in Booth v Bosworth (2001) 114 FCR 39; [2001] FCA 1453, the first full trial brought under the EPBCAct. The significant impact guidelines include significant impact criteria for each matter of national environmental significance. For example, the General Guidelines state that an action is likely to have a significant impact on the Great Barrier Reef Marine Park if there is a real chance or possibility that the action will "result in a substantial change in air quality or water quality (including temperature) which may adversely impact on biodiversity, ecological health or integrity or social amenity or human health." Industry Guidelines have also been developed to assist specific industry sectors. These supplements are designed to be read in conjunction with the significant impact guidelines. At the time of writing, there were five Industry Guidelines addressing the following matters: interactions between offshore seismic exploration and whales; offshore aquaculture; windfarms; agriculture; and marine bioregional plans.

Case study: The HSI Case [7.520] The Guidelines are not amendments to the law. In Humane Society

International v Minister for Environment and Heritage (2003) 126 FCR 205, the Humane Society challenged a supplement to the Guidelines advising that people who

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[7.530]

held and complied with a State government permit to kill grey-headed flying foxes did not need to make a referral under the EPBC Act. The Court held that this statement was not authorised by the Act and could not grant an exemption from the Act.

[7.620]

•

• • •

chapter 7 Commonwealth environmental assessment and approval

The assessment of a proposal may be: on preliminary documentation by public environment report by environmental impact statement by public inquiry.

Reliability of information

Related actions [7.530] In determining significance, the whole of a series of activities by a proponent ought to be considered. This is clear from the definition of "action", which includes "an activity or series of activities" . Section 74A gives the Minister the power to decide not to accept a referral if satisfied that the action referred is part of a larger action the person proposes to take.

Developments at Eastern Creek

[7.580] The Department doesn't have the resources or expertise to gather its own information about every referral, or to check the information it is given. It is very dependent on the reliability of the information supplied by proponents.

The Hawke Report (see above) has recommended (Recommendation 24) that there be an industry Code of Conduct for consultants supplying information for the purposes of the environmental impact assessment and approval regime under the Act, with enforcement powers given to ACCC and a system of follow up audits.

[7.540] Unfortunately, section 74A appears to be ignored on occasion. For example, in July

2004 a developer submitted two referrals on the same day for industrial development at Eastern Creek. The proposals required the removal of two areas of Cumberland Plain woodland close to each other, one with an area of a hectare and the other with an area of a hectare and a half. Neither referral mentioned the other. The Department determined both referrals on the same day and decided that neither proposal was for a controlled action. Neither determination made mention of the other related development.

The precautionary principle [7.550] The Minister must take account of the precautionary principle in determining whether

an action is a controlled action (s 391). Under this principle, a lack of scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage. See [1.220].

The assessment process

Assessment on preliminary documentation [7.590] A proposal is likely to be assessed on preliminary documentation (ss 92 - 95) when:

• the relevant impacts are not numerous, not complex and are confined to the locality

• •

the relevant impacts can be predicted very confidently the relevant impacts have been or are being adequately assessed under State or other Commonwealth legislation.

Assessment by public environment report [7.600] A proposal is likely to be assessed by public environment report (ss 96 - 100) when:

• •

an assessment is expected to focus on a relatively small number of key issues, and for the impact to be adequately assessed, new information must be collected and/or existing information must be analysed further.

Assessment by environmental impact statement [7.610] A proposal is likely to be assessed by environmental impact statement (ss 101 - 105)

Preliminary information [7.560] As noted above, Schedule 2 of the Regulations sets out the preliminary information

(known as "referral information") that must be forwarded to the Minister after the decision has been made that a proposal is likely to have a significant impact.

when:

•

an assessment is expected to raise numerous or complex issues, and

• it will be necessary to collect new information or analyse existing information further. Assessment by public inquiry

Levels of Commonwealth assessment [7.570] Once adequate preliminary information has been received, the Minister decides on the

appropriate level of assessment.

[7.620] A proposal is likely to be assessed by public inquiry (ss 106 - 129) when:

• •

the relevant impacts are likely to be relatively high, or the relevant impacts, or their management, are outside the control of a single proponent, or

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[7.630]

• a public inquiry is necessary or desirable to ensure effective public involvement in the assessment process. The Department website (http://www.environment.gov.au/protection/environmentassessments/assessment-and-approval-process) contains information on levels of assessment and other issues relating to assessment.

Assessment under bilateral agreements [7.630] A bilateral agreement between the Commonwealth and a State (see EPBC Act, Ch 3) can provide that actions that have been assessed in a specified manner do not require assessment under the EPBC Act (s 47). That is, it delegates environmental assessment responsibilities for controlled actions to the State Government. Such agreements have been concluded with every State and Territory.

NSW bilateral assessment agreement [7.640] The most recent NSW bilateral assessment agreement was entered into on 26 February 2015 . It accredits assessment processes undertaken by the State Government under Parts 4 and 5 of the NSW Environmental Planning and Assessment Act 1979, with some exceptions. It also accredits the transitional Part 3A provisions under that Act. The accreditation of the transitional Part 3A provisions is particularly controversial due to the dearth of environmental protections available under those provisions. Indeed, community concern regarding the operation of Part. 3A resulted in its repeal in 2011 (see [5.2680]). In its submission to the Commonwealth Government regarding the Draft NSW-Commonwealth bilateral assessment agreement, the Australian Network of Environmental Defender's Offices (now EDOs of Australia) noted that: The proposal to "re-accredit" the discredited Part 3A assessment process threatens the rebuilding of public confidence in the NSW planning system, and confidence in the Commonwealth's environmental leadership role - particularly given the history of corruption risks, public antipathy and disenfranchisement under Part 3A.

Strategic assessment [7.650] The EPBC Act does not deal only with specific actions. It also provides for:

•

assessment of the impacts of actions taken under a policy, plan or program, on matters of national environmental significance. The heading to Part 10 of the EPBC Act refers to these as "strategic assessments" (s 146)

• assessment of Commonwealth-managed fisheries (s 147) • assessment of impacts on the broader environment, if the relevant State government Minister so requests.

NSW and the Commonwealth have entered into five separate strategic assessment agreements pursuant to s 146. These concern strategic assessment of: the Western Sydney Growth Centres; Heathcote Ridge, West Menai; NSW road and traffic management works; the Lower Hunter; and

[7.690]

chapter 7 Commonwealth environmental assessment and approval

the Upper Hunter. Information about strategic assessment of these matters can be found at http://www.environment.gov.au/protection/assessments/strategic.

Assessment of fisheries [7.660] The division between Commonwealth and State jurisdiction over fisheries is explained in [19.200]. Division 2 of Part 10 of the EPBC Act requires the Australian Fisheries Management Authority to make agreements for strategic assessment of fisheries managed under the Commonwealth' s Fisheries Management Act 1991.

If, after the strategic assessment, the Minister endorses a plan of management or a policy for managing a fishery, the Minister must make a declaration under section 33 that (s 153):

• •

actions approved in accordance with the plan or policy do not require approval the endorsed plan or policy is an "accredited management plan" for the purposes of the declaration (see Declarations by the Minister at [7.350]).

Fisheries management plans have been accredited following strategic assessment of fishing activity under the plan. This means that the cumulative impacts of a fishery have been considered, not simply the actions of individual licensed fishers.

Commonwealth fisheries [7.670] A map of each Commonwealth fishery can be found at http://www.agriculture.gov.au/ fisheries/domestic/zone. Assessments are principally evaluated against the Guidelines for the Ecologically Sustainable Management of Fisheries (2007) (http://www.environment.gov.au/ system/files/resources/97 ff9461-5 ccf-4 9c 6-9 3 6 8-8 bde5 f2 4 3c0 bffiles/guidelines. pdf).

Approvals [7.680] After the environmental impact assessment process for a proposed action is complete, the Minister decides whether to grant approval for the action.

What m ust the Ministe r take into account? [7.690] In making a decision, the Minister must consider (s 136(1)):

• economic and social matters • any impacts that the action has, will have, or is likely to have on the environmental matters protected by the EPBC Act. In considering these matters the Minister must take into account (s 136(2)):

• the principles of ecologically sustainable development, which are set out in section 3A • the assessment report on the impacts of the action, or the report of a commission of inquiry • the documentation provided by the proponent - for example, an environmental impact statement

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(7.700]

• any other information available to the Minister on the relevant impacts of the action • relevant comments from other Commonwealth Ministers (such as information on social and economic factors). The Minister may also consider the proponent's history in relation to environmental matters (s 136(4)). The EPBC Act was amended in 2012 to require the Minister to obtain the advice of the "Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development" (IESC) before deciding whether to approve a coal seam gas development or large coal mining development that is likely to have a significant impact on water resources (s 131AB). The IESC is a statutory committee and was set up as a consequence of public concern regarding the impacts of these projects on groundwater and surface water. Further information about the IESC can be found at http://www.iesc.environment.gov.au

Case study: AGL Gloucester Gas Project [7.700] This matter is a good example of the IESC and EPBC Act being used to strengthen the conditions attached to an approval for a coal seam gas project.

Barrington-Gloucester-Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure (2012) 194 LGERA 113; (2012] NSWLEC 197 In February 2011, the Gloucester Gas Project was approved by the NSW Planning and Assessment Commission under Part 3A of the Environmental Planning and Assessment Act 1979 (NSW). The approval was for 110 coal seam gas wells within a 210 km area between Barrington and Great Lakes, transporting the gas from the processing facility to the existing gas supply network via a 95-100 km pipeline traversing several local government areas, and a gas delivery station at Hexham. A case brought by the Barrington-Gloucester-Stroud Preservation Alliance Inc in the NSW Land and Environment Court challenged the approval. The Alliance claimed that the PAC's approval was invalid as it was based on preliminary groundwater studies (and as such failed to consider the precautionary principle), and certain conditions regarding wastewater and groundwater gave rise to uncertainty. Justice Pepper dismissed the claim, in part because the conditions imposed were within the permissible limits of Part 3A (for further discussion of Part 3A, see (5.2680]). The project also required approval under the EPBC Act. In February 2013, (former) Minister Burke approved the project, imposing 36 conditions, including 10 conditions to protect water resources. These included a requirement to provide the Minister with details of the hydraulic fracturing agents or other reinjected fluids to be used during the operation, as well as a 2 megalitre-per-day limit on groundwater extraction. The Minister's decision to incorporate conditions based on the Committee's advice was made despite a relatively indirect link to the relevant matters of NES - namely, the Green and Golden Bell Frog, the Giant Barred Frog and the Small-flower Grevillea.

(7.720]

chapter 7 Commonwealth environmental assessment and approval

Matters that cannot be taken into account [7.710] In deciding whether to grant approval and what conditions to attach to an approval, the Minister can consider only those matters listed ins 136(5) above. This means the Minister cannot have regard to other environmental concerns relating to the development unless they relate to a matter of national environmental significance or can be shown to have social or economic aspects. For example, no consideration can be given to the impacts of a proposal on climate change or a threatened species which is only listed under NSW legislation.

While this appears to be an artificial and arbitrary distinction, it is the role the CoJ11II1onwealth has chosen. The choice is based partly on a legal view of the constitutional division of powers between the States and Commonwealth, and partly on a political view of how responsibility should be shared between these two levels of Government, as set out in the Intergovernmental Agreement on the Environment (see [1.540]). Under the Intergovernmental Agreement on the Environment, the Commonwealth is responsible for ensuring that Australia meets its international legal obligations. This is reflected in the EPBC Act insofar as it seeks to implement a number of environmental treaties including the World Heritage Convention, the Ramsar Convention and the Convention on Biological Diversity. The Commonwealth is a party to other international conventions, including the United Nations Convention on Climate Change and the associated Kyoto Protocol. However, it has so far chosen not to use those conventions as a basis for assessing and approving actions. In practice, environmental impacts invariably have social and economic effects, and the Minister retains discretion to consider a wide range of matters because of this.

Restrictions on approvals [7.720] In deciding whether to approve an action and what conditions to attach t0 the approval, the Minister must not act inconsistently with Australia' s obligations under a number of international agreements that relate to matters of national environmental significance. Similarly, the Minister must not act inconsistently with specific plans and policies. These are discussed in more detail below:

• •

• •

For World Heritage matters, the Minister must not act inconsistently with Australia' s obligations under the World Heritage Convention, the Australian World Heritage management principles, or a plan that has been prepared for the management of a declared world heritage property under the EPBC Act (s 137) For National Heritage places, the Minister must not act inconsistently with the National Heritage management principles, or an agreement to which the Commonwealth is party in relation to a National Heritage place, or a plan that has been prepared for the management of a National Heritage place under the EPBC Act (s 137A) For Ramsar wetlands, the Minister must not act inconsistently with Australia' s obligations under the Ramsar Convention (s 138) For threatened species and endangered communities, the Minister must not act inconsistently with Australia's obligations under the Convention on Biological Diversity, the Apia Convention, the Convention on International Trade in Endangered Species in Wild Fauna and Flora, a Commonwealth recovery plan or a threat abatement plan. The Minister must also have regard to any approved conservation advice for the species or community (s 139)

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(7.730]

For migratory species, rhe Minister must not act inconsistently with the Bonn Convention and an number of bilateral migratory bird conventions (s 140)

• Certain prohibitions also apply to nuclear facilities (s 140A).

Case study: Mackay Conservation Group Incorporated v Commonwealth [7.730) Mackay Conservation Group Incorporated v Commonwealth (Katzmann} Fed Court, NSD33/2015, 4 August 2015) '

On 4 August 2015, the Federal Court of Australia set aside the Commonwealth's approval of Adani's Carmichael mine in central Queensland. The mine would have been one of the largest in the world. The Court Order (Katzmann J, Fed Court, N~D33/2015, 4 August 2015) was made after the Minister conceded that he had faile~ to have regard to conservation advices for two Federally-listed vulnerable species, the Yakka Skink and Ornamental Snake, as required under s 139 of the EPBC Act. The applicant also alleged that the Minister failed to consider the greenhouse gas emissions that would result from burning the coal and the prop~nent's environmental history. However, as the matter did not proce~d to trial, t~ese ISS~es were not addressed by the Court. At the time of writing, the Minister had still not issued a determination in relation to the mine.

[7.770)

• • • •

chapter 7 Commonwealth environmental assessment and approval

comment on proposals that have been referred to the Minister seek injunctions and interim injunctions, but only if the person or organisation has standing to sue try to persuade the Department to take steps to enforce the law. The Department's policy on compliance and enforcement can be found at http://www.environment.gov.au/about/publications/compliancepolicy.html commence criminal proceedings for an offence (s 13 of the Crimes Act 1914 (Cth) allows any person to commence proceedings for summary or indictable offences under Commonwealth law). These opportunities for public participation are discussed further below.

Inviting the Minister to start the referral process [7.760] As mentioned above, any person can tell the Minister about a proposed development

and invite them to start the referral process. However, formal referral powers are only given to:

• •

the person proposing to take the action (s 68) a State or Territory government agency with administrative responsibilities relating to the action (s 69)

• a Commonwealth agency (s 71). Environmental offsets [7.740) The Commonwealth can impose c~nditions on an approval to reduce its impacts (s 134). In October ~012, the _Environment Protection and Biodiversity Conservation Act Environmental Offsets Policy c~me mto force (Offsets Policy). The Offsets Policy requires proponents to first atte~pt to "avoid" and "mitigate" ~mpacts before seeking to develop_ where appropriate and poss1?le - an offse~s. package for residual harm caused to the environment. The Policy includes cntena for de~ermmmg whether a suitable offsets package can be put together by the proponent. Fo~ example, It pr?v1~~s that offsets must deliver an overall conservation outcome that maintains or improves the viability of the protected matter. "Direct offsets" must account for no less th 90% of ~?e off~et _package, while up t~ 10% of offsets may be comprised of "compensato:; measures . Deviation from the 90% direct offset requirement may be considered in certain Circumstances. For further information see http://www.environment.gov.au/system/files/ resources/12630bb4-2c 10-4c8e-815f-2d 78 62 bf87e 7/files/offsets-policy_2. pdf

Public participation 7 75 [ . oJ The public can play a role at many stages of the environmental impact assessment process. Members of the public can:

• EPBC nominate a species, an ecological community or a threatening process for listing under the Act (see [12.200]) • provide _details of a proposed development to the Minister and try to persuade the Minister to exercise the power to start the referral process

The Minister can also request that a proposal be referred (s 70).

Comment on proposals [7.770] Where a proposal has been referred to the Minister, interested people have 10 days to comment on the referral and whether the action is a controlled action (s 74(3)). People can also take this opportunity to comment on what level of assessment is appropriate for the proposal, because no specific opportunity to comment on this at a later stage is set out in the legislative scheme (see s 87(3)).

The Department website has information about matters that have been referred for assessment (see http://www.environment.gov.au/cgi-bin/epbc/epbc_ap.pl?name=invitation_to_ comment&limit=999&text_search=). Once a level of assessment has been decided, there is also the opportunity to have input at the assessment stage. The proponent of the action must publish, depending on the level of assessment, specified information concerning the referral information (s 95), a draft public environment report (s 98) or draft environmental impact statement (s 103) and invite public comment to be made to the proponent. Any comment received must be forwarded by the proponent to the Minister for consideration.

If the Minister appoints a commission to carry out an inquiry, the inquiry must be publicised (s 108) and submissions can be made to the inquiry (s 110). The commission determines the procedure to be followed at the inquiry, but there may be the opportunity to give evidence in person. No inquiries have been held to date under this provision.

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Injunctions and standing to sue [7.780] Section 475 confirms that the Federal Court can grant m1unctions and interim injunctions to enforce compliance with the Act. In addition to restraining conduct, the court may

chapter 7 Commonwealth environmental assessment and approval

(7.850]

• •

make an order requiring a person to do something, such as repair or mitigate damage to the environment (s 475(3)). Section 4 75 also extends the class of people who have standing to seek an injunction (see the discussion of standing at [2.800).

whether there is a serious legal question to be tried, and where the "balance of convenience" lies. This basically means trying to cause the least amount of irreversible harm. Stopping a business operating until the hearing may cause financial loss to the business or loss of wages for workers. Allowing it to continue may mean irreversible damage to the environment. These factors must be weighed against each other in any particular case.

Case studies: Injunctions

Who can sue?

Booth v Bosworth

[7.790] Under the EPBC Act, those who have standing to sue include:

[7.820] In Booth v Bosworth (2001) 114 FCR 39; [2001) FCA 1453, the applicant sought an injunction to restrain a lychee farmer from using electric grids to kill flying foxes. The flying foxes were a part of the values of the Wet Tropics World Heritage Area. The Court had regard to:

• an individual who has engaged in activities for protecting, conserving or conducting •

research into the environment an organisation whose objects or purposes include protecting, conserving or conducting research into the environment.

• •

The individual or organisation must have been engaged in these activities at any time in the two years immediately before the relevant action or the application for the injunction (s 487). In August 2015, the Commonwealth Government tabled a Bill seeking to repeal s 487. The Environment Protection and Biodiversity Conservation (Standing) Bill 2015 (Cth) was the Government's response to the Adani case, discussed at [7.730]. The Bill, which would circumscribe the community's capacity to seek judicial review of decisions made under the EPBC Act, has been referred to the Senate Standing Committee on Environment and Communications for inquiry and report.

Problems.with enforcing approvals [7.800] Unfortunately, many of the approvals issued by the Minister in the past have been so

vague that they are unenforceable. These have included "manner specified" approvals (see [7.440)). Examples of such approvals are:

• •

one where works were to be modified to avoid areas of habitat "where possible and practically feasible"

the fact that there were only 14 days to go in the lychee season the financial loss the farmer would suffer if the injunction were granted.

It refused to grant an interlocutory injunction. However, a final injunction restraining the use of the grid was granted in October 2001. This case is discussed in detail on [12.240).

Schneiders v State of Queensland [7.830] In Schneiders v Queensland [2001) FCA 553 the applicants sought to restrain a dingo cull on Fraser Island. The cull was prompted by the death of a child following an attack by a dingo. The genetically pure strain of dingo found on the Island was said to be part of the world heritage values of the island. In refusing an interim injunction, the Court had regard to:

• •

the importance of ensuring public safety the fact that the cull would finish by the following evening.

Minister for Environment and Heritage v Greentree [7.840] In Minister for Environment and Heritage v Greentree [2003] FCA 857 Mr Greentree

The second example, for example, leaves open the question of how much is a "sufficient" amount, and how much and for how long the habitat is to be conserved.

tried to dissolve an interim injunction restraining him from farming certain land on the basis that the area was effectively dead and there was no real prospect of rehabilitation. The Court found that there may have been an opportunity for rehabilitation and steps should not be permitted that might prejudice that outcome. The Court had seen no evidence of the significance of any adverse economic impact on Mr Greentree. The injunction was continued.

Interim injunctions

Minister for Sustainability Environment Water Population and Communities v Debona

[7.810] Because damage to the environment is often irreversible, applicants frequently need to

[7.850] An interlocutory injunction was also granted in Minister for Sustainability Environment

seek an interim injunction to restrain activities until their case can be fully heard by the Court.

Water Population and Communities v Debona [2010] FCA 1497. On 31 March 2010 the Minister included grey box grassy woodlands and derived native grasslands of south-east Australia in the list of threatened ecological communities maintained under section 181 of the EPBC Act, in the endangered category. In May, July and December of 2010, inspections of a

one where an amount would be contributed to a trust fund "sufficient for the conservation on private land of high value swift parrot foraging habitat".

The Federal Court has been asked in several cases to grant interlocutory (or interim) injunctions to restrain alleged breaches of the EPBC Act. In deciding whether to grant an interlocutory injunction, the court usually considers:

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property at Parwan in Victoria showed that it was likely that the newly listed community was present on the land and that ongoing clearing of the land was taking place, despite requests and warnings not to do further work. On 23 December 2010 the Minister sought and was granted an interim injunction restraining any disturbing of rock, ploughing or clearing.

Undertakings os to damages

[7.920)

chapter 7 Commonwealth environmental assessment and approval

Emergency protection [7.900] The Minister may use the emergency listing process to protect national heritage values

(Subdiv BB, Div 1A, Pt 15) or Commonwealth heritage values (Subdiv BB, Div 3A, Pt 15) if any of those values is under threat. The Minister made the first such order in NSW in September 2004 to protect 2,250 hectares of the Kurnell peninsula, including Captain Cook' s landing place and a number of Aboriginal middens, carvings and ceremonial sites.

[7.860] The Federal Court can require an applicant for an injunction to give an undertaking to

pay the damages which might result from the injunction as a condition of granting an interim injunction. Because there may be contractual obligations which are frustrated by an injunction, damages may involve large sums of money. Requiring such an undertaking can act as a significant barrier to bringing proceedings (see (2.960]).

Awards of costs [7.870] The usual rule is that the defeated party pays for the legal costs of the successful party in court proceedings. If the proceedings are held to have been brought in the public interest, the Court may decline to make a costs order against an unsuccessful applicant, although this happens rarely (see [2.900]).

In Booth v Bosworth (2001) 114 FCR 39; (2001] FCA 1453 the applicant was successful and sought her legal costs. In this case, she succeeded in obtaining an injunction restraining a fruit-grower from using electric wires to kill flying foxes until the fruit-grower had obtained an approval under the EPBC Act (see (12.240]). The respondent argued that there must be some disincentive against people in the applicant's position taking an unreasonable attitude, and that there should be no costs order. The Court held that there was no foundation for the suggestion that the case was "unreasonable". Successful litigants typically have orders made in their favour, and such an order is not a "reward" to the party. The Court made a costs order in the applicant's favour.

Security for costs [7.880] There is another disincentive for members of the public to start legal proceedings. An order for security for costs may be made by the court. This is an order that before the case can proceed, the applicant must pay money into court to pay for the other party' s legal costs if the applicant loses.

In Save the Ridge Inc v Commonwealth [2004] FCA 1167 the Court ordered a security of $50,000. There was evidence that the applicant did not have enough money to pay for the likely legal costs of the other parties, but there was no evidence that making the order would bring the proceedings to an end. That is, the applicant may have been able to raise the funds. This was the deciding factor for the Court.

Government action [7.890] There are many steps the Commonwealth government can take, which are not available

to the public, to ensure compliance with the law.

Variation, suspension and revocation of approvals [7.91 OJ The Minister may vary, suspend and ultimately revoke an approval that has been granted if satisfied that a condition of the approval has been breached or that a new or greater impact on a matter of NES has taken place than was assessed and the step is necessary to protect the matter of NES.

The power to vary conditions attached to an approval (s 143) was used in October 2008 in relation to a forestry project on the Tiwi Islands where significant breaches of an approval had occurred. Buffer zones around rainforest and wetland prescribed by the approval and covering somewhere between 257 and 1,000 hectares were cleared unlawfully by the forestry leaseholder. The precise size of the buffer zone was difficult to ascertain as the approval itself was loosely drafted. The Department and the company negotiated during 2006-07 and issued an "Agreed Statement", according to which the Minister imposed a variation of the approval (apparently part of the agreement) which provided for remediation works, a bond of $1,000,000 for the remediation works, and payment of $1.35 million over three years to the Tiwi Land Council for offset projects such as feral pig control. Although different in form, the effect of this "package" was not unlike an enforceable undertaking (see below). The company collapsed in 2009 and payments ceased after its forestry leases were forfeited and cancelled. The power to suspend an approval (s 144) was exercised in September 2008 in relation to breaches of an approval for the Reef Cove development near Cairns. There had been serious problems with sediment and erosion control which prompted the Minister to suspend the approval. Under the suspension, no work could take place unless appropriate remediation work was completed. In addition the Minister directed an environmental audit of the works (s 458) . The company was placed in administration in July 2009 and the original 12 month suspension was extended for a further 12 months in September 2009.

Proceedings for a civil penalty [7.920] Only the Minister can bring proceedings for a civil penalty (s 481). If there is a breach of

any provision of the EPBC Act, and the breach has a significant impact on a NES matter, the maximum penalty is 5,000 penalty units for an individual and 50,000 penalty units for a body corporate (see (2.660] for value of a penalty unit). In determining the appropriate penalty, the court must have regard to all relevant matters, including (s 481(3)):

• the nature and extent of the breach

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• •

(7.930]

the nature and extent of any loss or damage suffered as a result of the breach the circumstances in which the breach took place

• whether, in proceedings under the EPBC Act, the court had previously found the person has engaged in any similar conduct.

Fixing penalties [7.930) As a guide to fixing penalties (see Minister for the Environment and Heritage v

Greentree (No 3) (2004) 136 LGERA 89; [2004] FCA 1317 at [51]) the Court also considers:

• the size of the company concerned • whether the breach was deliberate and how long it continued • whether senior management or employees at a lower level were responsible for the breach • whether the company has a corporate culture that encourages compliance with the EPBC • • •

Act (evidence might include educational programs, or disciplinary measures or other responses to an acknowledged breach) whether the company has shown a willingness to cooperate with the authorities in relation to the breach (however, failure to have a cooperative attitude probably will not increase a penalty) the deterrent effect of a penalty, both to the defendant and to others the capacity of the defendant to pay.

The maximum penalties reflect how seriously parliament regards the offence (see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698). This is a relevant factor for the court. There have been four civil penalty cases to date. In Minister for the Environment and Heritage v Wilson [2004] FCA 4, a penalty of $12,000 was awarded against a shark fisherman who set a net in a Commonwealth reserve in breach of s 354(1) of the EPBC Act. In Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 penalties totalling $450,000 plus costs were awarded for clearing a Ramsar wetland site. The Windella wetland is one component of the Gwydir Wetlands, a Ramsar listed wetland. The Gwydir Wetlands are about 80 km west of Moree in the north-west of New South Wales. The Windella wetland was cleared, ploughed and sown with wheat by or under the authority of Mr Greentree. Mr Greentree argued that none of his actions was likely to have a significant impact on the ecological character of the Windella wetland because:

• • •

to assess the significance of an impact it was necessary to have a baseline the Windella wetland was only 0.1 % of the Gwydir wetlands the Copeton Dam had had the greatest impact on the ecology of the site, resulting in the drying out of about 70% of the regional wetlands.

The Court found that even in its disturbed state before the clearing at issue in the case, only 20% of the Windella wetland had been cleared. Native plants were present on the site, including coolabah and casuarina trees. There were also dead trees and fallen trees providing habitat critical to many species of birds. After the clearing, ploughing and sowing works were carried out in early 2003, the site had been effectively sterilised. The Court made a finding of fact that:

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Once it is accepted that the Windella Ramsar site retained attributes as a wetland immediately before the actions of February and March 2003 took place, the conclusion seems to me inevitable that those activities had a significant impact on the ecological character of the site. The Federal Court was satisfied that the contraventions were deliberate, planned conduct over a long period of time, motivated by commercial considerations and warranting substantial penalties. The Court reviewed the principles for fixing penalties (see above) and considered other matters. Because the company was a one-man company, with Mr Greentree the sole director, Mr Greentree would also be punished by any penalty imposed on the company. The penalties taken as a whole should reflect the requirements of the law and not result in unfairness. On the other hand, the penalty should reflect the fact that Mr Greentree and the company both contravened the EPBC Act. The Court imposed a penalty of $150,000 on Mr Greentree and $300,000 on his company, plus the costs of the proceedings. An appeal to the Full Federal Court was dismissed (see Greentree v Minister for Environment and Heritage (2005) 144 FCR 388).

In Minister for Environment and Heritage v Warne [2007] FCA 599, the respondent was a skipper carrying out commercial fishing in a Commonwealth reserve and was given a penalty of $25,000. In Minster for Environment, Heritage and the Arts v Lamattina (2009) 167 LGERA 219; [2009] FCA 753, the respondent admitted to clearing native vegetation. This was likely to have a significant effect on the listed red-tailed black cockatoo. The maximum penalty was $5,500, 000.The respondent acted deliberately in full knowledge that the clearing was illegal. The parties suggested to the Court an agreed penalty of $110,000. The judge held that this was not even within the range of appropriate penalties, and instead imposed a penalty of $220,000 plus costs, "the bottom of what I regard to be the permissible range".

Criminal proceedings [7.940) The Minister can also institute criminal proceedings. However, given the higher standard of proof and therefore greater difficulty in getting a conviction in criminal proceedings, the Minister is more likely to pursue proceedings for a civil penalty or an enforceable undertaking.

The Department is responsible for investigating breaches of the EPBC Act. If it decides that there is sufficient evidence to prosecute (and that there are no reasons not to prosecute), then a brief of evidence should be forwarded to the Commonwealth Department of Public Prosecutions (Commonwealth DPP). The Commonwealth DPP can commence a prosecution in any State court. Section 77 of the Commonwealth Constitution gives the Commonwealth power to vest any New South Wales court with Federal jurisdiction. Section 68 of the Judiciary Act 1903 (Cth) vests jurisdiction to hear Commonwealth prosecutions in State courts which have similar jurisdiction with respect to State offences. Section 15C of the Acts Interpretation Act 1901 (Cth) makes it plain that the Land and Environment Court's jurisdiction would not be limited by the Land and Environment Court Act 1979 (NSW) in these circumstances.

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The Minister has brought few criminal proceedings to date. Those that have been brought have been brought in the lowest level of the State jurisdiction, the Local Court, which makes it difficult to get information about the cases. They are not reported and do not have the precedent or deterrent value of superior court decisions. Local Courts are not specialist environmental courts.

8 Local government

Administrative measures [7.950) The Minister does not have to take formal proceedings in court where there is a breach of the Act. The lowest level of the enforcement hierarchy involves measures such as warnings, educational measures and enforceable undertakings.

Dr Andrew H Kelly School of Law University of Wollongong

Enforceable undertakings [7.960) An enforceable undertaking is a form of administrative measure and it has recently become the enforcement method of choice of the Minister. Section 486DA of the EBPC Act provides that where the Minister considers that an action taken by a person contravened a civil penalty provision of Part 3 (those protecting matters ofNES and Commonwealth responsibilities), the Minister can accept a written undertaking to pay a specified amount, within a specified period to the Commonwealth or to some other specified person, for the purpose of activities directed towards the protection and conservation of the environment which was harmed. Enforceable undertakings have been given in 12 cases to date. Media releases are put out by the Department soon after, no doubt to reinforce the deterrent aspects of the undertaking.

V-Line Undertaking [7.970) The second undertaking negotiated by the Government was an undertaking by V-Line, a Victorian government agency, given in July 2009. The press release announcing the undertaking stated: A State Corporation will pay more than $188,000 after undertaking clearing works that affected the population of a listed critically endangered species ... [i]t is great ... that we can now put money back into the environment to help protect the species into the future. However, scrutiny of the undertaking itself shows that $136,500 of the $188,000 (ie 73%), will be devoted to producing and implementing educational resources to ensure that V-Line's staff understand their responsibilities under the EPBC Act. The whole of this sum can be spent "in house", without requiring any actual payment to anyone. The money was spent on training which arguably should already be part of any corporation's existing responsibilities. The undertaking is not what the press release says it is and the press release appears to attempt to unrealistically inflate the deterrent value of the undertaking. The undertaking also appears to fail to comply with section 486DA(2) of the EPBC Act which requires that the specified amount is to be paid to a specified person, and that it be for the purpose of activities directed towards the protection and conservation of the matter protected by the civil penalty provision said to have been breached. Instead most of the specified amount is to be spent internally in relation to a general training program and system review.

Dominic J Crinnion Planner

Local government's power and responsibility .............................................................................................. [8.20] Plans, strategies and programs ........................................................................................................................ [8.100] State of the environment reports ..................................................................................................................... [8.150] Community and operational land ..................................................................................................................... [8.180] Amalgamation of councils .................................................................................................................................... [8.370] Constitutional recognition of local government ........................................................................................ [8.380]

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[8.10]

In this Chapter, the "Act" refers to the Loco/ Government Act 1993 (NSW) and the "Minister" refers to the Minister administering this legislation, currently the Minister for Local Government. "The Office of Local Government" refers to the current Office of Local Government. The "Regulation" refers to the Loco/ Government (Genero/J Regulation 2005. Reference to the "Planning Department" relates to the agency that administers the Environmental Planning and Assessment Act 1979 (NSW), currently the Department of Planning and Environment.

[8.1 O] Located at the environmental coalface, local government plays a critical role in environmental planning and management. Local government is the architect of many important local plans and policies, and the agency primarily responsible for their application. Local councils generate a considerable amount of environmental law, for example, in the form of zoning and other provisions in local environmental plans (LEPs) (see Chapter 3 ). Relevant legislation makes councils accountable to their communities by various means. This chapter focuses on the Local Government Act 1993 (NSW), which replaced the Local Government Act 1919 (NSW). There is also the Local Government (General) Regulation 2005 (NSW). Another key statute is the Environmental Planning and Assessment Act 1979 (NSW), dealt with elsewhere (see, in particular, Chapters 3, 5 and 6). There is also an array of circulars, practice notes, guidelines and general publications issued by the Office of Local Government, previously the Division of Local Government within the Department of Premier and Cabinet and before then, the Department of Local Government. The following text addresses local government's environmental service and regulatory powers under the Local Government Act 1993. Local councils own a variety of land. They also take care of, control and manage land owned by others. Where the land which they manage is Crown land, the relevant legal provisions are dealt with in Chapter 4. Otherwise, the land owned or managed by councils is classed as "public land" and managed under the Local Government Act 1993 as operational or community land. The relevant legislation is discussed in this chapter.

Local government's power and responsibility [8.20] The Commonwealth Constitution contains no reference to local government. Nevertheless, local government is embedded in the political and governance landscape, having been set up long before 1901. The first elective local authority arose in Adelaide in 1840. In NSW, the Sydney Corporation was established in 1842, more than fifty years after British settlement. Voluntary municipal incorporation was set up under the Municipalities Act of 1858 22 Vic No 13, replaced by the Municipalities Act of 1867 31 Vic No 12. These systems tended to relate more to townships rather than rural lands. Local government was made compulsory across a large swathe of land in NSW by the then Local Government Act 1906 (NSW). This Act was updated by the Local Government Act 1919 (NSW), which lasted for over seven decades until introduction of the current Local Government Act 1993 (NSW). Since 1906, "incorporated" land has expanded considerably. The number of

[8.30)

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councils, however, has decreased substantially. This is likely to continue. At the time of writing, there are 152 general councils across NSW. Some level of amalgamation is expected in the near future (see [8.370)). Local government is a creature of the State rather than the Commonwealth Parliament. Section 51 of the Constitution Act 1902 (NSW) provides for the existence of local government. However, it leaves its precise form up to the NSW Parliament, including whether its officers are elected or appointed. Local government is, therefore, open to state government intervention: its law-making powers must be exercised in accordance with limits set by legislation, and may be subject to State government veto. The Local Government Act 1993 specifically draws attention to the environmental responsibilities of local councils. The purposes of the Act addressed under section 7 include:

• •

to provide the legal framework for an effective, efficient, environmentally responsible and open system of local government in New South Wales (s 7(a)) to require councils, councillors and council employees to have regard to the principles of ecologically sustainable development in carrying out their responsibilities (s 7(e)).

Ecologically sustainable development [8.30] The principles of ecologically sustainable development (ESD) are defined in the Dictionary to the Local Government Act 1993 (see also s 3). The description shadows the definition in the Protection of the Environment Administration Act 1991 (NSW) (see [5.1350)). The NSW Parliament injected further reference to ESD in the statutory "charter" set down under the Local Government Act 1993 at section 8(1). One of the charter's elements refers to the need to "properly manage, develop, protect, restore, enhance and conserve the environment of the area for which it is responsible, in a manner that is consistent with and promotes the principles of ecologically sustainable development". However, while a council must pursue its charter in the exercise of its functions, the charter is not legally enforceable (s 8(2)). This weakens the statutory strength of the charter. The Australian Local Government Association is formally a party to the Intergovernmental Agreement on the Environment (see [1.540)) (IGAE), but this offers councils little in terms of a guaranteed role in environmental management. It acknowledges their interest in the environment of their localities and puts a responsibility on them for the development and implementation of local environmental policies in cooperation with other levels of government and the local community (IGAE, para 2.4 ). But other provisions in the IGAE are also relevant to local government. The role of the IGAE in relation to local government was commented on in BGP Properties Pty Limited v Lake Macquarie City Council [2004) NSWLEC 399 (BGP Properties). The case involved a proposed industrial subdivision encroaching on a wetland identified under SEPP No 14 - Coastal Wetlands (see [14.370)) and impacting upon certain listed species and ecological communities under the Threatened Species Conservation Act 1995 (see [14.640)). It was a merits appeal against the deemed refusal of a development application (see [5.2240)). A significant aspect of the judgment involved the relevance of principles of ESD, including the precautionary principle (see [1.220)). McClellan CJ of the Land and Environment Court discussed the relevance of the IGAE to local councils when determining development applications. In particular, he

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referred to sub-paragraphs 3.1 and 3.5 of the IGAE relating to the principles of ESD that must guide all levels of government. In addition, he raised Schedules 2 (Resource Assessment, Land Use Decisions and Approval Processes), 3 (Environmental Impact Assessment), 6 (Biological Diversity) and 9 (Nature Conservation). He emphasised that although not bound by the IGAE, local government, through the Australian Local Government Association, had expressed an intention to adhere to its objectives. McClellan CJ stated that the IGAE "reflects the policy which should be applied unless there are cogent reasons to depart from it" (at [92]). He also noted that the schedules to the IGAE set out ways in which the principles of ESD can be implemented by all levels of government, thereby incorporating them into environmental impact assessment processes, including the determination of applications for development consent.

[8.40] There have been numerous cases since then that highlight the requirement to consider the principles of ESD in local government decision making (see, for example, Telstra Corporation v Hornsby Shire Council (2006) 67 NSWLR 256, Aldous v Greater Taree City Council (2009) 167 LGERA 13, South East Forest Rescue Inc v Bega Valley Shire Council and South East Fibre Experts Pty Ltd [2011] NSWLEC 250). Reference to the IGAE, however, is generally scant. In Smith v Wollondilly Shire Council [2004] NSWLEC 194, a merits appeal against the Council's refusal of a development application for subdivision, Murrell C followed McClellan CJ in BGP Properties in highlighting ESD and the precautionary principle in accordance with the IGAE. The importance of considering ESD is well established by the courts. In BarringtonGloucester-Stroud Preservation Alliance v Minister for Planning and Infrastructure (2012) 194 LGERA 113, Pepper J of the Land and Environment Court considered how the Planning Department addressed ESD, including the precautionary principle, in a case involving coal seam gas extraction. Pepper J cited the proponent's Environmental Assessment in that the "IGAE states that the precautionary principle is to be a guiding principle for informed policy making and program implementation by all levels of government" (at [182]). In this instance, the Court decided that the need to adequately consider ESD and its underlying principles had not been breached. In practice the shape and extent of local government in NSW remains very much in the hands of the State government. Recent years have seen the State government invest local councils with significant regulatory responsibilities in relation to the environment. These responsibilities are dealt with in detail in other chapters of this book, and include:

• planning and development control under the Environmental Planning and Assessment Act 1979 (see Chapters 3 and 5) • pollution control under the Protection of the Environment Operations Act 1997 (see Chapter 9) • control of noxious weeds under the Noxious Weeds Act 1993 (see [11.890]).

On the other hand, in some circumstances power has been taken away from councils. For example, note the role of the Joint Regional Planning Panels (JRPPs) under the Environmental Planning and Assessment Act 1979 (see [5.830]). Apart from regulatory functions, councils have the opportunity to pursue environmental objectives directly through their service delivery powers, for example, by educating, engaging and encouraging the community to maintain and improve the local environment. Councils may carry out environmental protection works, provide public workshops on biodiversity conservation on private front and back yards or encourage local citizens to engage in composting. State of the

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environment reporting, and the involvement of the community in establishing priorities through the Community Strategic Plan process are significant for achieving accountability and influencing the strategic direction of councils to ensure better environmental outcomes. The Local Government Act 1993 expressly contemplates the use of council's service functions to promote environmental outcomes. In a table titled "What are a Council's Functions" at the end of Chapter 5 of the Act following section 23A, various functional categories are listed, namely "service", "regulatory", "ancillary", "revenue", "administrative", "enforcement" and "various" others under other statutes, together with examples. Under the examples given for service functions, there is reference to "environmental protection". Other examples include "community health" and "waste removal and disposal".

Delivering services and facilities [8.50] A council has power to "provide goods, services and facilities, and carry out activities, appropriate to the current and future needs within its local community and of the wider public" (Local Government Act 1993, s 24). As a result, a council may provide any environmental service provided it is lawful (s 24). This approach differs considerably from the previous legislation - ie the Local Government Act 1919 - wherein a council had to rely on an express or implied provision to support a particular service function. The introduction to Chapter 6 of the Local Government Act 1993 makes it clear that service functions include "environment conservation, protection and improvement services and facilities". Councils are limited in their service functions, however, by financial restrictions, political parochialism and community expectations, rather than the legislation. The Community Strategic Plan, Delivery Program and Operational Plan (see [8.100]) are potentially vital mechanisms by which local councils can, with the benefit of community input, decide not only what services and facilities will be provided in the area but how their establishment and maintenance will be achieved.

Regulation by councils [8.60] Councils have extensive regulatory functions under various pieces of legislation. In addition to councils' extensive development and building control responsibilities under the Environmental Planning and Assessment Act 1979 (see Chapter 5), council approval is required under section 68 of the Local Government Act 1993 for a number of specific activities of potential environmental significance. This list of items has diminished over time. It currently includes:

• installing a manufactured home, moveable dwelling or associated structure • carrying out water supply and sewerage work • disposing of waste into a council sewer • operating a system of sewage management, such as an artificial wetland (see also Local Government Act 1993, s 68A) • installing, constructing or altering a waste treatment device or a human waste storage facility (such as a septic tank or a toilet) or connected drains • directing or procuring a theatrical, musical or other entertainment for the public on "community land" (see [8.210])

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• playing a musical instrument or singing for a fee or reward on "community land" (see [8.210]) • operating a caravan park or camping ground • operating a manufactured home estate • using a standing vehicle or any article for the purpose of selling anything in a public place, and • installing a non-portable domestic oil or solid fuel heater (such as a slow combustion stove). Special requirements apply to the approval process for "filming" for exhibition or broadcast (ss 114 - 119F). The approval process, set out in Chapter 7, Part 1 of the Local Government Act 1993, operates in addition to any approval required under the Environmental Planning and Assessment Act 1979. If a particular proposal appears to require two council approvals - that is, under both section 68 of the Local Government Act 1993 and an environmental planning instrument (EPI) (see Chapter 3) - both processes may be dealt with concurrently (Environmental Planning and Assessment Act 1979, s 78A(3) - (6)). Section 89(1)(c) of the Local Government Act 1993 expressly requires a council to take into account the principles of ESD when deciding whether or not to grant approval. Other potential factors that councils have to take into account and standards to be met are spelt out in the Local Government (General) Regulation 2005. The Local Government Act 1993 further sets out:

• the procedure for obtaining approval (ss 75 - 94)

• the types of conditions council may impose (ss 95 - 98) (for instance, an approval might be granted but restricted to only a specified aspect of a project (s 96(1)(c)) • an applicant's right to seek review of or appeal against a council decision (ss 100, 176-178) • special provisions enabling the council or the court to amend, revoke and modify approvals (ss 106 - 110).

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Local Government (General) Regulation 2005 (Local Government Act 1993, s 163). A local approvals policy cannot impose a more onerous criterion relating to a specified aspect of an activity than any that have been set out in the Act or Regulation (s 164). Draft local approvals policies must first be placed on public exhibition to allow community comment (Local Government Act 1993, ss 160 - 161; Local Government (General) Regulation 2005, cl 77). Once a local approvals policy has been adopted, it must be available for public inspection (Local Government Act 1993, ss 166 - 167).

Powers to make orders [8.80] Chapter 7, Part 2 of the Local Government Act 1993 complements the approval provisions under Part 1 by giving councils powers to issue orders that prohibit certain activities or require things to be done, on both public and private land. This includes (s 124):

• • • • •

demolishing, removing, repairing or making structural alterations to a building erected in a catchment district if the action causes, or is likely to cause, pollution of the water supply taking action to bring a camping ground, a caravan park, a moveable or manufactured dwelling, a place of shared accommodation, a hairdressers shop or beauty salon, a mortuary and other activities into compliance with relevant standards taking steps to prevent or repair environmental damage resulting from drainage or drainage works, but not where the environmental damage arises from premises, works or equipment that is the subject of a licence or a notice or direction under the pollution legislation ceasing an activity on premises that constitutes a threat to public health or safety ensuring premises or vehicles used for the manufacture, storage, sale, transporting or handling of food operate in a clean or sanitary condition.

Councils have the option of preparing local orders policies to specify the criteria to be taken into account in determining whether or not to issue an order (ss 158 - 167). The procedure for the making of orders is set out in a procedural flow diagram (following s 157).

The Local Government Act 1993 contains a flow diagram for the approval process, including appeals to the Land and Environment Court (followings 123B).

Offence provisions

Local approvals policies

[8.90] There are offence prov1s10ns that enable councils to prosecute an activity that 1s unauthorised or contrary to an order or approval in the local court (ss 626 - 628).

[8.70] Councils can formulate and adopt their own local approvals policies (Local Government Act 1993, ss 158, 161) which provide an optional but convenient way of applying locally devised environmental criteria. They can, for example, specify additional criteria to be taken into account in determining an application for approval (Local Government Act 1993, s 158(4); see also s 89(1)(6)). With the consent of the Chief Executive of the Office of Local Government, these policies can also exempt activities from the need to obtain approval (ss 158(3), 162).

Local approvals policies can also "specify other matters relating to approvals" (s 158(5)). This would apparently allow councils to impose standards relating to particular types of activity or to indicate circumstances under which a particular activity will or will not be acceptable. However, a local approvals policy must not be inconsistent with the Local Government Act 1993 or the

Plans, strategies and programs [8.100] Councils are made accountable to their communities through a compulsory series of "Community Strategic Plans", "Resourcing Strategies", "Delivery Programs" and "Operational Plans". As a result of the Local Government Amendment (Planning and Reporting) Act 2009, "management plans" (as opposed to "plans of management" for community land: see [8.180]) have been replaced by this cascade of mechanisms. According to the former Division of Local Government, the Community Strategic Plan "is the highest level plan that a council will prepare" (see Integrated Planning and Reporting Guidelines for Local Government in NSW, 2013, p 7)

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(Guidelines). In addition to the Guidelines, the Division of Local Government produced the Integrated Planning and Reporting Manual for Local Government in NSW in 2013 (Manual), pursuant to s 406(5) of the Local Government Act 1993. Preparation of these plans, strategies and programs across the State of NSW was intended to be staged, with completion by 2012. The Manual now states that all councils are currently "working within the Integrated Planning and Reporting Framework" (p 8), with further detail provided in putting together the four plans, strategies and programs as well as the Annual Report, the State of the Environment Report and other documents, statements and programs. Notably, the Delivery Program has replaced the former management plan in relation to addressing principal activities to be carried out by a council. While social plans no longer need to be prepared, each council must prepare a "community engagement strategy" (Local Government Act 1993, s 402(4)). Councils must still prepare their Annual Reports. These must include state of the environment reporting in the year in which an ordinary election of councillors is held (see [8.150]).

Community Strategic Plan [8.11 0] The key purpose of the Community Strategic Plan is to identify the "main priorities and inspirations for the future of the local government area covering a period of at least 10 years" (Local Government Act 1993, s 402(1)). It is to be based not only on strategic objectives but strategies designed to achieve those objectives (s 402(2)). In relation to content, a Community Strategic Plan must address "civic leadership, social, environmental and economic issues in an integrated manner" based on informed and relevant information (ss 402(3)(a), (c)). The emphasis is on an integrative balance rather than prioritising particular principles.

It is up to each council to design its own Community Strategic Plan subject to any relevant "integrated and reporting guidelines" (s 406). In 2013, the Division of Local Government produced the Guidelines, together with the more detailed Manual that is designed to support the preparation of the Guidelines. These contain "Essential Elements" which refer to "a partnership between council, state agencies, community groups and individuals" adopting "a broad range of issues that are relevant to the whole community" (item 1.1, p 9). This leads on to more detailed requirements, such as a report by an "outgoing council" on the extent to which the "social, environmental, economic and civic leadership objectives" have been achieved over the previous four years (item 1.11, p 10).

Both the legislation and the Guidelines demonstrate the broad range of matters that a Community Strategic Plan can address. It is to be the centrepiece of planning and management for an entire local government area. Unlike a local environmental plan made under the Environmental Planning and Assessment Act 1979, the Community Strategic Plan is a purely local government document. It does not need to be endorsed by State government. Notwithstanding this, each council must still follow the requirements in the Local Government Act 1993 and relevant Guidelines. Section 406(4) states that "[a] council must ensure the requirements of the guidelines are complied with". However, the compass of the 'guidelines' is wide. According to s 406(5), this can extend to "other material for the guidance of councils in connection with the plans, strategies, programs and reports" under s 406 (see s 406(5)). For instance, in preparing its Community Strategic Plan, a council

[8.130)

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must have "due regard to the State government's State Plan and other relevant State and regional plans of the State government" (s 402(3)(d); see also the Guidelines, item 1.3, p 9). Each council must review its Community Strategic Plan following an ordinary election of councillors. It may decide to re-endorse its plan, move to amend it or develop and endorse a new one (s 402(5)). A draft Community Strategic Plan or an amendment must be placed on public exhibition (s 402(6)). The exhibition period must be for at least 28 days and all submissions must be considered before the plan is endorsed by the council. A council must then forward the Community Strategic Plan to the Chief Executive of the Office of Local Government and place it on its website within 28 days (s 402(7)).

Resourcing Strategy [8.120] The Resourcing Strategy is to provide a long-term plan for the prov1s10n and implementation of those resources needed to implement the Community Strategic Plan and any sub-strategies (Local Government Act 1993, s 403(1)). It must set down three elements, namely "long term financial planning", "workforce management planning" and "asset management planning" (s 403(2); see also Guidelines, p 11). For example, it might report on the costs of updating certain council-owned open space with paving for walking trails and planting indigenous species.

This form of Strategy sits between the Community Strategic Plan and the Delivery Program. There is no provision demanding public exhibition of the Resourcing Strategy. The Guidelines contain relevant "Essential Elements", including preparation of a "Long Term Financial Plan" that must last for a minimum of 10 years, updated each year as a minimum, and reviewed in relation to the Community Strategic Plan (see Guidelines, items 2.1-2.6, p 12).

Delivery Program [8.130] The Delivery Program is designed to address how a council intends to implement the Community Strategic Plan and its sub-strategies within the financial limits set down by the Resourcing Strategy (Local Government Act 1993, s 404(1)). The Guidelines describe this as "the point where the community's strategic goals are systematically translated into actions" (p 15). "Essential Elements" contained in the Guidelines require that the Delivery Program must, for example:

• •

pinpoint means to achieve the objectives and strategies contained in the Community Strategic Plan (item 3.2) and tackle "the full range of council operations" (item 3.4).

For example, it might make a commitment to plant selected indigenous trees or shrubs on council road verges or provide citizens with subsidised or free seedlings for private gardens in order to meet specific aims set down in the Community Strategic Plan. The mechanism must provide a method of assessment "to determine the effectiveness of each principal activity detailed in the Delivery Program in implementing the strategies" (s 404(2)). The program is to be put together every four years in line with council elections (s 404(3)), with progress reports submitted every six months to the council by the General Manager (s 404(5)). Importantly, the draft delivery program must be placed on public exhibition for at least 28 days, after which all submissions must be considered before the program is adopted (s 404(4); see also Guidelines, items 3.7-3.8). Again, there is no need for Ministerial approval.

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Operational Plan (8.140] This is an annual plan to provide details on proposed act1v1t1es to be undertaken pursuant to the Delivery Program (Local Government Act 1993, s 405(1)). It also involves a council's own revenue policy (s 405(2)). The legislation provides for community participation not only by requiring each council to place the draft operational plan on public exhibition and consider any submissions (ss 405(3) - (5)) but also by placing the final Operational Plan on its website (s 405(6)).

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councils (also known by other names, see below at [8.170]) or lands under "Regional Environmental Strategies" prepared by the Planning Department (see Chapter 3, [3.350]). This provision allows councils to deal cooperatively with environmental issues that transcend arbitrary boundaries. But in the end, the success of SoERs depends on the content and clanty of Community Strategic Plans. Examples of regional SoERs are raised by the Manual (see item 6.5, p 136).

Threatened species

State of the environment reports [8.150] In addition to its Community Strategic Plan and other mechanisms discussed above, a council must prepare an Annual Report (Local Government Act 1993, s 428). This report must contain, among other things, information about the "council's achievements in implementing the community strategic plan ·over the previous 4 years" (s 428(2)). It thereby provides some accountability in relation to the environmental matters set down in the Community Strategic Plan. Moreover, the Manual states that the "Annual Report focuses mainly on a council's implementation of its Delivery Program and Operation Plan" (see item 6.1, p 130). Importantly, the Annual Report must be available on the council' s website.

The Annual Report must include a "State of the Environment Report" (SoER) (s 428A(l)) as part of the Annual Report itself or issued as a separate document. While this requirement was not deleted by the Local Government Amendment (Planning and Reporting) Act 2009, the SoER has become a far more flexible record on the existing and changing environment. For instance, there is no longer any need to refer to specified resources such as "water", "biodiversity" and "waste"; nor is there any requirement to apply the "pressure-state-response" model. The document must now address the "state of the environment" across the council area, dealing with "such environmental issues as may be relevant to the objectives for the environment established by the community strategic plan" (s 428A(l)). These are recognised as "environmental objectives". The SoER must (ss 428A(3)(a) - (c)):

• • •

establish environmental indicators for each environmental objective report on these environmental indicators including recent changes identify major environmental factors, namely "events and activities that have a maior impact on environmental objectives".

Because the SoER is part of the Annual Report, it must be available for public access. However, it need only be prepared in the year in which the ordinary election is to be held (s 428A(l)). The SoER must also follow the Guidelines established under section 406 (see s 428A(2)). At the time of writing there are no "Essential Elements" applying to Annual Reports or SoERs. However, the Manual provides helpful information for both councils and interested members of the public on these documents. The Manual emphasises the need "to achieve consistency across the NSW local government sector". The Local Government Act 1993 also enables the optional preparation of regional SoERs (s 428A(4)). All or part of a SoER might encompass an area beyond an individual council's boundaries. As examples, the Act refers to "a region or a catchment management area". There are other opportunities, such as areas encompassed by voluntary regional organisations of

[8.160] Provisions relating to SoERs are also found in threatened species legislation, namely the Threatened Species Conservation Act 199 5 (TSCA) and Part 7 A of the Fisheries Management Act 1994 (FMA). When a recovery plan (see [12.160]) or threat abatement plan (see [12.190]) identifies a council as being responsible for implementing particular measures, it must report in its SoER on action that it has taken (TSCA ss 70(2), 87(2); FMA s 220ZT(2)).

Regional perspectives [8.170] As already noted, environmental issues transcend council borders. Regional initiatives can be carried out on a "bottom up" basis, especially via voluntary regional organisations of councils (ROCs) or similar bodies under different names. These bodies illustrate local government's major role in regional governance. Special statutory reference is made to ROCs in relation to a council's delegation of functions (Local Government Act 1993, s 355(d)). These organisations can carry an array or functions subject to the needs of the member councils. For example, a ROC might take the role of preparing a regional SoER (see [8.150]). Regional organisations may also provide useful input into local Community Strategic Plans. At the same time, individual Community Strategic Plans may assist voluntary regional bodies in developing policies and providing advice to other associate councils. A ROC might employ an environmental specialist to serve all its member councils. Their potential functions vary widely.

At the time of writing, the Office of Local Government lists fourteen ROCs including, inter alia, Southern Sydney ROC (SSROC), Western Sydney ROC (WSROC), Northern Rivers ROC (NOROC) and Orana ROC (OROC) (see www.olg.nsw.gov.au/local-government-directory). Of particular interest is Border ROC (BROC), which includes three councils in ~uee_nsland and four from NSW. In relation to SoERs (see [8.150]), the Shore Regional Orgamsat1on of Councils (SHOROC) produced annual regional State of the Environment Reports covering four urban councils between 2006/2007 and 2009/2010. More recently, a regional SoER was prepared in 2012 for the Northern Rivers Catchment Management Authority, involving 12 councils and 3 county councils reflecting an innovative and integrative approach. There are also other regional organisations of council that do not carry the name of ROC and are unlisted on the Office of Local Government's electronic register (see above). Examples include the Southern Councils Group, Hunter Councils Incorporated, and Sydney Coastal Councils Group, the latter of which embraces 15 coastal councils. Most if not all of these Syd~ey coastal councils would also fall under traditional ROCs or similar bodies. Another example 1s the New England Strategic Alliance of Councils (NESAC), which was established and approved by the then Minister for Local Government in 2004. NESAC was formed as an alliance of four councils despite previous recommendations of the NSW Local Government Boundaries Commission for

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amalgamation, based on an independent report. In any event, the NESAC was to fail when two of the four councils decided to leave the organisation. This regional alliance was different to many others due to numerous reasons. Overall, it was the result of a Ministerial decision rather than subsidiarity factors. In contrast, before s 355 of the Act was altered in 1998 to introduce specific reference to ROCs, many were already in existence. Mention should also be made to County Councils (see Local Government Act 1993, ss 383 - 400). These are a special form of second tier of local government with specific functions delegated upwards by two or more councils, subject to Ministerial approval (see s 383 ). The most common purposes are noxious weed eradication and water supply administration. In contrast, Richmond River County Council is involved in flood plain management, and Rous County Council (Rous Water) in water supply. According to the Office of Local Government website (see above), there are 14 current county councils. Overall, the extent of county councils has decreased. The most remarkable example is the Cumberland County Council, which produced the County of Cumberland Planning Scheme, gazetted in 1951. This was the first and only statutory zoning plan for Sydney, which introduced the 'green belt'. This instrument can still be important in planning law through application of the existing use provisions under the Environmental Planning and Assessment Act 1979 (NSW) (see Chapter 5, (5.420]), where the history of zoning regulation is peeled away to determine whether or not existing use prevails.

[8.210)

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prohibited in this public reserve". This land, known as_ Chapman Reserve, was used for leisure activities by the community. The Council sold the land m 2003. The sale was initially challenged in the Land and Environment Court in Bonaccorso v City of Canada Bay City Council [2007] NSWLEC 159. Biscoe J held that when th~ Local Gove~~~~nt Act 1993 came into operation, this "public reserve" had become commumty land (see Imtial classification": (8.350]) that could not be sold (s 45: see above). The Court subsequently ordered that the title to the land return to the Council. The Council successfully appealed against the Land and Environment Court decision. The Court of Appeal agreed that the land was in fact community land (at 304) but ~eld t_hat, even when community land was sold, once such a sale was registered the purchaser gamed title un~er the Real Property Act 1900 (at 318-319). This means that to prevent _cornr.nunity _land changmg hands in this manner, it is necessary to obtain an injunction to stop reg1strat10n of title by the new owner before registration occurs (at 318). See also Save Little Manly Beach Foreshore Inc v Manly Council (No 2) [2013] NSWLEC 156 below at (8.350].

Crown land reserves [8.200] Crown land reserves that have not been vested in a council (Crown Lands Act 1989,

Community and operational land What is community land? [8.180] Councils must keep a register of their own land and land that is under their control

(Local Government Act 1993, s 53) and make it available to members of the public (Government Information (Public Access) Regulation 2009, Schedule 1, cl 1(3 )(a)). All land owned by councils, and all land that has been placed, or falls, under their care and control (other than Crown land and commons) is defined as public land (s 3, Dictionary). All public land has to be classified as either community or operational land (ss 25, 26), and anybody can obtain a certificate of classification from a council (s 54). The general position is that there are no special restrictions on council powers to manage, develop or dispose of operational land, subject to the provisions of relevant environmental planning instruments (EPis) made under the Environmental Planning and Assessment Act 1979 (see Chapter 3). Community land, on the other hand, cannot be sold or otherwise disposed of by councils (s 4 5 (1)). It can be leased, but there are restrictions on the grant of leases and licences, and also on the way community land can be used (see below).

Unlawful sale of community land [8.190] The NSW Court of Appeal decision in Canada Bay Council v F & D Bonaccorso Pty Ltd

(2007) 156 LGERA 294 (Bonaccorso) concerned two adjacent lots of land that what was then the Concord City Council had acquired in 1976 and 1982. The council demolished the houses on this land, laid down grass and placed a sign on the land that listed "some of the activities

75 _ 77) but fall or are placed under council care and control (Local Government Act 1993, :s48; Cro:m Lands Act 1989, ss 95(1)(a), 98), are excluded from the definition of public land (Local Government Act 1993, s 3, Dictionary). These areas are to be assessed and managed under the provisions of the Crown Lands Act 1989. Under that Act, for example, a council has the option to prepare plans of management for Crown land ~eserves, whereas they are required to be made for community land, as well as being subject to a different process (Crown Lands Act 1989, ss 112(2); 113(1)(c); see (4.330], (8.180]). In Friends of King Edward Park Inc v Newcastle City Council (No 2) [2015] NSWLEC 76, the Council approved a function centre on Crown land subject. to a plan of ma~agement. Development for the purposes of a function centre was only perm1ss1ble under the zomng of ~he land under the relevant LEP, if it was allowed under the plan of management. In grantmg development consent, the Council relied on provisions in the plan of r:nanagemen~ that all~w~~ development of "conference centres and commercial facilities that provide for public recreat10n • Sheahan J decided, however, that the plan of management w~s inv~lid on the gr_ounds that the relevant Minister had not taken into account relevant cons1derat10ns as reqmred under the Crown Lands Act 1989 (see s 114(1C)). Sheahan J also held that use of a funct~on centre _would be broader than that of a conference centre, and would indeed exclude the public from_ u~mg the site for recreation; as such, development of the site as a function centre would be proh1b1ted.

How is community land managed? [8.210] The Local Government Act 1993 spells out the ground r~les for the use of public land managed by councils. These rules cannot be set aside under section 28 of the Environmental Planning and Assessment Act 1979 (Local Governmmt Ac~ 1993, ~ _52; see (8:3~0], (8.340]) or modified by an EPI, but there is nothing to stop EPis 1mposmg add1t1onal restrictions.

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Restrictions may also result from the terms on which a council originally gained ownership of the land (for example, a covenant or trust) or, in situations where a council is not the owner, from conditions imposed by the owner, which must be reflected in the plan of management (s 37).

Plans of management [8.220] Draft plans of management must be prepared for community land (Local Government

Act 1993, s 36(1)). A 40 % increase in the seating capacity of an existing restaurant at Balmoral Beach, including renovations, and the ability to hold conferences and functions, was held to amount to an unlawful change of use in Seaton v Mosman Municipal Council (1996) 93 LGERA 1 (Seaton). The Court of Appeal considered the words of s 44 of the Act, ie that "[p]ending the adoption of a plan of management for community land, the nature and use of the land must not be changed". It decided that the words "nature and use of" should be read "disjunctively" rather than as a "composite phrase" (p 21). A different issue arose in Watpac Construction (NSW) Pty Ltd v Council of the City of Sydney [2014] NSWLEC 163 where the Council had prepared a plan of management for Regimental Square facing George Street, Sydney. The Council later advised that the plan of management was flawed, having erroneously designated the site as Crown Land in the plan of management. This led to a failure to categorise that land under s 36(4) (see below). Biscoe J of the Land and Environment Court decided that although the Act "does not spell out the consequence of not categorising ... community land", this did not necessarily lead to a plan of management being invalid (at (37]). The Court relied on the generality of s 44 of the Act, which prevented change before "adoption of a plan of management for the land", concluding that a veto against any change in the "peculiar circumstances" of this case would be misplaced (at (38]). With limited exceptions (ss 36A(2), 36B(3), 36C(2), 36D(2)), plans of management can cover multiple areas of community land (s 36(2)). These are generally known as "generic plans". Once the plan is in place, the land must be managed in accordance with it (s 35). These obligations can be enforced under the broad standing provision in the legislation (s 674). In Seaton, a successful action was brought against the council on the grounds that it had issued a lease to use a building on community land for restaurant purposes when it was not authorised by the relevant plan of management. See also Ku-Ring-Gai Municipal Council v Masterplan Consultants Pty Ltd [1999] NSWCA 167, where it was held that a plan of management for a council carpark did not authorise its use as a means of access to private land. Under the plan of management, community land is to be categorised, in whole or in part, as (s 36(4)):

• a natural area • a sportsground • a park • an area of cultural significance, or • an area for general community use.

A park is an area of open space that is not bushland and is used for recreation. This is the only categorisation that is defined under the Local Government Act 1993, Dictionary (see also s 3 ).

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Natural areas [8.230] Land categorised as natural area must be sub-categorised (s 36(5)) as:

• bushland • wetland • escarpment • watercourse, or • foreshore.

Bushland is defined as land where there is remnant natural vegetation or altered vegetation that is still representative of the structure and distribution of the natural vegetation (s 3, Dictionary). It is the only sub-categorisation that is defined. Guidelines for categorising community land are set out in Local Government (General) Regulation 2005 (cll 101 - 111; see also Local Government Act 1993, s 36(6)(6)). A council must have regard to these in preparing a draft plan of management (cl 101(2)). For example, native vegetation can fall within the "natural area" category even if it is not in a pristine state (cl 102). The " bushland" sub-category extends to non-forested communities, including "highly disturbed" communities in certain circumstances that are "capable of being rehabilitated" (cl 107(2)(c)). The Local Government Act 1993 insists on land being categorised as "natural area" in only three circumstances:

• where a council declares, by way of resolution, that the site is either (s 36C(3)(b)): •

- "a known natural, geological, geomorphological, scenic or other feature that is considered by the council to warrant protection or special management considerations" (s 36C(l)(a)) or - a "wildlife corridor" (s 36C(l)(b)) where the site has been designated as "critical habitat" under either the Threatened Species Conservation Act 1995 or the Fisheries Management Act 1994 (Local Government Act 1993, s 36A(3)(b))

• where the site is directly affected by a recovery plan or threat abatement plan, made under

the Threatened Species Conservation Act 1995 or the Fisheries Management Act 1994 ((12.510]), that "requires measures" to be undertaken by the relevant council (Local Government Act 1993, s 36B(4)(b)). This does not prevent a council from categorising community land as "natural area" if it otherwise sees fit. The Local Government (General) Regulation 2005 provides that land should be categorised as natural area if it "possesses a significant geological feature, geomorphological feature, landform, representative system or other natural feature or attribute that would be sufficient to further categorise the land as bushland, wetland, escarpment, watercourse or foreshore" (cl 102).

Core objectives for managing community land (8.240] Core objectives for management of each category and sub-category of community land are prescribed in the legislation (Local Government Act 1993, ss 36E- N). For example, the core objectives for managing community land categorised as a park are (s 36G):

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(a)

to encourage, promote and facilitate recreational, cultural, social and educational pastimes and activities

(b)

to provide for passive recreational activities or pastimes and for the casual playing of games

(c)

to improve the land in such a way as to promote and facilitate its use to achieve the other core objectives for its management.

Plans of management must comply with the applicable core objectives and leases, licences and other estates granted in relation to community land must be consistent with applicable core objectives (s 46(2)), although certain exceptions to this requirement apply - see [8.270]). Plans must contain (s 36(3)):

• • •

[8.280)

Leases and licences authorised by a plan of management [8.270] Leases or licences can be granted in accordance with provisions contained in the plan of management where they are for a purpose which is a core objective for the category of community land into which the land in question falls (s 46(1)(b)(i); see also ss 36E- N). In addition, leases and licences can be granted in accordance with the plan of management, for a number of other purposes, provided that the purpose is at least consistent with the core objectives for the category of community land in question (s 46(2)). These lease/licence purposes include:

•

statements of objectives and performance targets the means by which these are to be achieved performance indicators.

In Seaton, the court decided that the council's adoption of a plan of management was invalid because the document failed to identify the "means" by which a specific objective was to be achieved (at 9-13 ). This case arose before the introduction of the prescribed core objectives via the Local Government Amendment (Community Land Management) Act 1998. Plans can also require that approval be obtained for specified activities (s 36(3)(d)). Where a plan applies to just one area of community land, it must specify the purposes for which the land and any buildings on the land can be used, the purposes for which development will be allowed, and its scale and intensity (s 36(3A)(b)).

Making plans of management [8.250] Draft plans of management and draft amendments must be placed on exhibition for public comment before being made by councils (Local Government Act 1993, ss 38, 40 - 42). They must be available for public inspection and purchase (s 43). A public hearing must be held for any draft plan of management that categorises or recategorises the land, but not for categorising land categorised as natural area (s 40A); see also s 36(5). When a council makes a resolution that categorises land in a manner objected to in a public submission, it must state its reasons for doing so (Local Government (General) Regulation 2005, cl 114).

Leases of community land [8.260] The only way in which exclusive occupation of community land can be granted is through a lease or licence authorised by the legislation (Local Government Act 1993, s 47D). Councils can grant leases or licences of community land for up to 30 years (s 46(3)). The purposes for which leases and licences can be granted are spelt out in the legislation. The provisions are extraordinarily complex, reflecting the tensions that exist between different sections of the community in the competition for use of community land.

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• •

a short term casual purpose set out in the Local Government (General) Regulation 2005 (cl 116) which does not involve permanent structures, for example busking, weddings, stock agistment, sport, engaging in a trade or business, filming sessions, and commercial photographic sessions (s 46(1)(b)(iii)) the provision of public roads (s 46(4)(6)) the provision of goods, services or facilities and the carrying out of activities relating to public recreation (s 46(4)(a)(i)) or people's "physical, cultural, social and intellectual welfare or development" (s 46(4)(a)(ii)). The list of section 46(4)(a)(ii) matters expressly include:

• maternity and infant welfare centres • kindergartens and nurseries • childcare and family day-care centres • surf life saving clubs, and • restaurant and refreshment kiosks (s 46(5)).

Many of these provisions, such as allowing kindergartens and restaurants (as well as filming projects on community land; see below) represent a significant departure from the provisions of the previous legislation (Local Government Act 1919). The Court of Appeal had held that under that legislation, a public reserve had to "be open to the public generally as of right" (Waverley Municipal Council v Attorney-General (1979) 40 LGRA 419).

Leases and licences not requiring management plan authorisation [8.280] Leases and licences can be granted for the following purposes even where they have not been authorised by a plan of management:

• • •

public utilities (s 46(1 )(a)) underground pipes and connections to allow the connection of adjoining premises to facilities provided by council or other public utilities (s 46(1)(al)) "filming projects", regardless of whether they are consistent with the plan of management or the core objectives (s 46(1)(c)).

Council's discretion to refuse a lease or licence for a filming project is very restricted (s 46(5A)). It must grant an application unless:

•

the plan of management specifically vetoes filming on the site (for example, the plan may expressly prevent filming on an ecologically significant fauna! corridor identified by the council) (s 46(5A)(b)), or

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• •

[8.290]

the council believes that "exceptional circumstances" justify refusal of the application, and these cannot be adequately addressed by imposing conditions (s 46(5A)(c), (SB)), or

•

the land is critical habitat, is directly affected by a recovery plan or a threat abatement plan or has been declared by the council to be an area of Aboriginal cultural significance (ss 46(5A)(a), 4 7AA).

Film projects

A "filming project" is defined as "a project (such as a film, a documentary, an advertisement, a television program or a specified set of television programs) involving filming" (s 3, Dictionary).

Leases and licences over natural areas [8.290] Additional restrictions apply to leases and licences over natural areas. They can only

allow a limited range of specified buildings and structures: walkways, pathways, bridges, causeways, observation platforms, signs, information kiosks, refreshment kiosks, maintenance sheds and toilets (ss 47B(l), 47B(4), 47B(5)). Restaurants are specifically excluded being differentiated from refreshment kiosks (s 47B(5)(b)). Buildings and structures needed for a filming project are allowed provided that they are temporary and are removed as soon as practicable after the expiry of the lease or licence, and the land is restored to its original condition (s 47B(6), (7)).

Public participation and notice [8.300] Opportunities for public participation are available during the making of plans of management (see [8.250]), but an additional opportunity is available at the leasing stage. Legal proceedings alleging a failure by council to comply with procedural requirements, such as giving notice, must be commenced within three months of a decision to make a plan or grant a lease (s 729).

Public notice of a proposal to grant a lease or a licence must be given (s 47(1)). Notice must also be given to adjoining landholders (see Warringah Council v Edmondson [2001] NSWCA 1) and to those in the vicinity for whom, in council's opinion, the land in question "is likely to form the primary focus of [their] enjoyment of community land" (Local Government Act 1993, ss 47(1)(c), (d)). Submissions made within 28 days must be considered (ss 47(3), (4)). A lease or licence can be exempted from this advertising requirement if it fulfils two criteria: (1) it is for 5 years or less; and, (2)

[8.330]

it is for one or more of a range of purposes identified in the Local Government (General) Regulation 2005 (s 47A(l)).

Examples of such purposes cited in the Local Government (General) Regulation 2005 include (under cll 117(1)(a), (c)):

• purposes "residential purposes, where the relevant community land has been developed for the of housing owned by council"

• public performances • busking, ie playing a musical instrument, or singing, for payment or other reward • engaging in a trade or business • picnics and private celebrations such as weddings and family gatherings

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filming.

[8.310] Additional notification prov1s10ns apply (Local Government (General) Regulation 2005, cl 118) where the proposed lease or licence allows a film project to be carried out on:

• • •

critical habitat land directly affected by a recovery or threat abatement plan land declared to be an area of Aboriginal cultural significance (Local Government Act 1993, s 36D).

In these instances, the council can reduce to seven days the period during which submissions must be made if it believes that the project will have only minor impact on the environment and on public amenity (s 47AA(2)).

Ministerial approval [8.320] Where the proposed lease or licence (including any potential extensions through a

renewal option) is for more than twenty one years, or an objection is made, the Minister's consent to the proposal must be obtained. The Minister must consider a report from the Secretary of the Planning Department (Local Government Act 1993, ss 47(5) - (9)). Reasons for the Minister's decision have to be provided on request (s 47(8A)). Leases or licences for terms exceeding five years must be granted by tender unless they are granted to a non-profit organisation (s 46A(3)). If consent is sought for a lease or licence longer than 21 years, the Minister must be satisfied there are special circumstances that justify exceeding 21 years (s 47(8AA)). Where the lease is for five years or less, and an objection has been made, the Minister has a discretion to call the proposal in for decision (s 47A).

Classifying and reclassifying public land [8.330] Operational land can be classified as community land by council resolution after public

submissions have been invited (Local Government Act 1993, ss 27(2), 33, 34). However, to classify community land as operational, an LEP must ordinarily be prepared or amended (s 27(1); see [8.180]), and a public hearing must be held (s 29). Where the council does not own the land, it must obtain consent to such a LEP from the owner (for example, the Planning Department) (s 28). A LEP may expressly provide that, once reclassified as operational, land is freed from restrictions on its use such as those stemming from the terms of any reservation, covenant or trust (s 30). Decisions about how public land should be classified cannot be delegated to council officers (s 377(1)(1)). The council may, however, delegate by resolution this function to the General Manager, or any other person or body.

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[8.340]

[8.370]

Land unsuitable for public amenities or services [8.340] The only situation in which councils can reclassify existing community land as operational outside the LEP process is where land dedicated under section 94 of the Environmental Planning and Assessment Act 1979 (see [5.1890]) is unsuitable for public amenities or public services for specified reasons (for example, size or location) (Local Government Act 1993, s 32(2)). In these limited circumstances, councils can simply resolve to reclassify, after taking public submissions and holding a public hearing, provided that they indicate why the land is unsuitable for community amenities or services (ss 27(2), 29(2), 32(2) - (3), 34). The land can then be sold. The proceeds of any sale of land dedicated under section 94 of the Environmental Planning and Assessment Act 1979 must be dealt with as a monetary contribution under that section (Local Government Act 1993, s 32(5)).

•

In Golden Paradise Corporation v Kogarah Municipal Council [2003] NSWLEC 155, the Land and Environment Court held that a resolution for reclassification of community land (in this case, used as a driveway) that did not address any of the specified reasons under section 32(2), and was made five months after the sale of the land only as a response to the litigation in this case, was invalid. Upon appeal (Kogarah Municipal Council v Golden Paradise Corporation [2005] NSWCA 230), however, the Court of Appeal held that because the purchaser was not itself responsible for the breach of the Local Government Act 1993 (at [58], [84]) and upon transfer the land became neither community land nor public land owned by the council (at [64]-[65], [86]), the registered transfer of the land could not be overturned.

• • •

Initial classification of public land under the Local Government Act [8.350] There are provisions in the legislation designed to protect public reserves existing at the time the legislation came into operation. As from 1 July 1993, certain categories of land were categorised as community land (Local Government Act 1993, Schedule 7, cl 6(2)), and could only be classified as operational through the LEP process. An example is provided by Save Little Manly Beach Foreshore Inc v Manly Council (No 2) [2013] NSWLEC 156, wherein the Council owned two parcels of land between the street and the beach. The first parcel at 34 Stuart St was acquired by Council on 2 May 1977, and remained vested in the Council when the Local Government Act 1993 commenced on 1 July 1993. On 21 June 1994, the Council made a resolution to classify the site, together with the neighbouring land at no 36, as operational land ([27]). Subsequently, on 10 December 2012, Council made a resolution to sell the two properties, subject to establishment of a right-of-way across the rear of the properties ([35]). Biscoe J of the Land and Environment Court decided that because the no 34 site was automatically categorised as community land on 1 July 1993, the Council has "no power to reclassify by resolution such land as operational land" ([40]). At that time, the land at no 34 was zoned Open Space under former Manly LEP 1988. As the land was vested in Council and zoned as open space, it was automatically classified as community land under the transition to the Local Government Act 1993 (see [5], [40]; Local Government Act 1993, Schedule 7, cl 6(2)(d)). Therefore, the Council's attempt to reclassify the site as operational land outside the LEP process was invalid ([40]). The categories immediately categorised as community land upon the commencement of the Act are:

•

public reserves, including "public parks" (Local Government Act 1993, s 3, Dictionary). In North Cronulla Precinct Association Inc v Sutherland Shire Council (1999) 107 LGERA 274,

chapter 8 Local government

the NSW Court of Appeal confirmed that it was not necessary for a council to formally dedicate land as a "public park" for that land to be considered a public park. Ultimately, the use of a given piece of land by the council (and therefore how the council allowed that land to be used by the public) determined whether or not the land was a public park (at 279, 289-290, 294-295). This reasoning was confirmed by the NSW Court of Appeal in Bonaccorso at 301-304) land subject to a trust for a public purpose. In Bathurst City Council v PWC Properties (1998) 195 CLR 566, the High Court declared that land transferred to the council for the purpose of developing a car park was subject to what the Court labelled a "statutory trust" for a public purpose (that is, the provision of car parking spaces) (at 592). This land was therefore community land (at 573). Note, unlike "public park" land, it is the manner and purpose for which car park land is transferred to a council that will determine whether it is subject to a trust for a public purpose, not the use of that land: Transport Infrastructure Development Corp v Parramatta City Council (2005) 143 LGERA 415 at 424-427 land dedicated under section 94 of the Environmental Planning and Assessment Act 1979 land reserved or zoned under an EPI for use as open space (providing it is owned by the council or is under its care and control; that is, not privately owned land) land belonging to the Planning Department (Environmental Planning and Assessment Act 1979, s 8(1)) that is under the day-to-day control of councils.

Existing public land that did not fall into any of these categories was nevertheless classified as community land on 1 July 1994, unless during this period the relevant council resolved to classify it as operational or community land after considering public submissions (Local Government Act 1993, Schedule 7, cll 6(3) - (7); see also s 34).

Land acquired by a council in the future [8.360] Where land has been acquired by a council after 1 July 1993, the general position is that the council can resolve to classify it as community or operational land after giving notice and considering submissions. But it is classified as community land if there has not been a resolution after three months (Local Government Act 1993, ss 27(2), 31, 34).

Amalgamation of councils [8.370] An ongoing concern for many people involved in local government is the potential of council amalgamations. Since the introduction of compulsory incorporation in 1906, the number of local councils has more than halved. This is despite the fact that the area of incorporated land across NSW had significantly expanded. A major factor was the Barnett Report, namely the Report of the Committee of Inquiry into Local Government Areas and Administration in New South Wales, published in 1974. This led to some amalgamations, especially in relation to bringing townships and surrounding rural areas into single units. In the mid-1990s, the State government under Premier Carr established the Local Government Reform Task Force which, together with other reports and discussion papers from various sources, steered towards strengthening ROCs (see [8.170]) and encouraging cooperative means to share resources. Only a handful of mergers occurred. In 2003, the Carr Government's

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emphasis moved from optional to mandatory amalgamations, with a reduction from 177 to 152 councils - the same number that prevails today. A plethora of subsequent of reviews and appraisals has since arisen. One outcome was the Review of Local Government Service Delivery in the New England Area, published in 2010, which recommended that three of the four councils investigated be amalgamated. This has not transpired. A broader review, this time focused on local government across the State and again requested by the relevant NSW Minister for Local Government, is Revitalising Local Government: Final Report of the NSW Independent Local Government Panel, published in 2013. This Report puts forward many recommendations, options and ideas. For example, in relation to Metropolitan Sydney, it recommends two "alternative futures": heavy reliance on joint organisations (such as ROCs), or "substantially reduc[ing] the number of councils" (p 98). For rural regions, it suggests "that as a general rule a population of less than 5,000 is unlikely to be sufficient to support a 'stand alone' local government" (p 111). The NSW Independent Local Government Panel's report was a major factor behind the State government's announcement of the Fit for the Future (FFTF) reform program in 2014, with local councils required to express their intentions on how they could meet the FFTF's propositions. Before the submission date of 30 June 2015, the State government appointed the Independent Pricing and Regulatory Tribunal (IPART) to evaluate local government's proposals. Its report, entitled Assessment of Council For Fit the Future Proposals, was released in October 2015 . It covered 144 councils while excluding eight in the Far West. It accepted four merger proposals but found that "87 [of a total of 139] proposals as not being fit for the future" relating to "sufficient scale and capacity" and/or "financial criteria" (p 2). The report is detailed and has attracted controversy. Even more recently on 29 October 2015, the NSW Legislative Council 's General Standing Committee No 6 published Local Government in New South Wales. The Committee' s report "calls on the NSW Government to commit to a policy of no forced amalgamations" unless it "can be established that a council is severely financially unsustainable to the point of bankruptcy or unable to maintain an acceptable level of service provision" (p xviii). The two reports demonstrate a strong divergence between those who support or oppose forced amalgamations. The continuing debate on council mergers raises key environmental issues. For instance, might larger councils lead to less or greater detail in generic plans of management for community land? Will there be enhanced opportunity for bigger councils to provide more useful information in their SoERs to enable improved biodiversity conservation? Might larger councils be in a better position to recruit expert officers in environmental management?

Constitutional recognition of local government [8.380] Local government played no role in the establishment of Federation in 1901. This does not mean that council representatives failed to attend the official and unofficial Conventional Conventions; the situation was that local government fell into the realm of residual powers of the States. At that stage, councils were regarded as dealing with "house-keeping" tasks, such as building and maintaining local infrastructure including roads, bridges and parklands. The character of local government has since changed exponentially. New crucial functions have emerged such as land-use planning, biodiversity conservation and environmental management.

(8.380)

chapter 8 Local government

The sheer importance of local government is now widely recognised. These and many other matters have led to two attempts to enshrine local government into the Australian Constitution via different approaches under:

• •

the Whitlam Government in 1974 the Hawke Government in 1988. Both referenda failed.

More recently, an External Panel on Constitutional Recognition of Local Government was established in August 2011, which submitted its Final Report in December 2011 identifying four potential methods for Constitutional change. In December 2013, a Joint Select Committee on Constitutional Recognition of Local Government was inaugurated. The Final report on the majority finding of the Expert Panel on Constitutional Recognition of Local Government: the case for financial recognition, the likelihood of success and lessons from the history of constitutional referenda, was issued in March 2013. This led to notice from Prime Minister Gillard that a referendum on amending s 96 of the Constitution to provide for direct financial assistance to local government would be held on the then proposed date of the Federal Election on 14 September 2013. But due to the election being held earlier, the change of Prime Minister before then, and moreover the subsequent change of Government, this issue has largely fallen away. Despite this, the inclusion of local government in the Federal Constitution remains a continuing issue. Perhaps more importantly, local government's robust involvement in Australian governance persists. Its crucial role in environmental management is ongoing without any desired Constitutional change.

351

9 Pollution control and waste disposal Sarah Wright Sessional Lecturer and PhD Candidate School of Law, University of Wollongong

Approaches to pollution control ............................................................................................................................ [9.20] Role of the Commonwealth ..................................................................................................................................... [9.40] Chemicals ...................................................................................................................................................................... [9.120] Dangerous goods ...................................................................................................................................................... [9.520] The Protection of the Environment Operations Act ............................................................................... [9.550] Marine pollution ...................................................................................................................................................... [9.2140] Waste management ........................................................................................................................................... [9.2390] Contaminated sites ............................................................................................................................................... [9.2570]

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[9.10] One simple legal approach to controlling pollution is to ban environmentally harmful activities, such as polluting industries, or environmentally harmful substances, for example DDT.

• •

However, banning polluting activities and harmful products is only feasible where: less harmful practices or alternative products exist, and the environmental harm caused by the activity or product is perceived to exceed its social and economic benefits or usefulness.

So most pollution and waste management law regulates polluting practices rather than banning them, by, for example:

• setting emission limits • imposing planning controls • imposing pollution licence conditions.

Approaches to pollution control Criminal law [9.20] Pollution is mainly regulated by the States and Territories (see [9.40]). Historically, the first generation of NSW pollution laws in the 1960s-1970s were centred on controlling pollution through the use of licensing and criminal sanctions in the event of failure to comply. For example, if you pollute water except in accordance with a licence, you commit a criminal offence, and can thus be fined. Unlike other .criminal law, in which both a guilty intent and a wrongful act must be proved, there is no need,to prove intent for most pollution offences (see tier 2 offences on (9.1200]). To prove the offence of water pollution, for example, it is sufficient to prove that an act or omission has caused the pollution, subject to the defence of honest and reasonable mistake of fact (see [9 .1440]). Whether the polluter intended to pollute water is only relevant in sentencing for the offence.

Broader approaches to pollution management [9.30] The second generation of NSW pollution laws in the 1990s introduced a broadened range of regulatory instruments and a new regulator, the Environment Protection Authority (EPA). The legislation allows for more flexible and innovative approaches to be taken to address pollution and waste. Licensing and criminal sanctions still play an essential part in controlling pollution. Licensing is the main way that the EPA regulates pollution from the more environmentally harmful industrial activities and the EPA runs a number of criminal prosecutions each year where breaches of the legislation occur. However, licensing and criminal offences are now complemented by a number of other tools which allow for technological, market, fiscal and co-regulatory approaches to be implemented. Importantly, regulation is supported by education and voluntary environmental improvement programs and incentives. Examples of this broadened regulatory approach include:

[9.40]

• • •

chapter 9 Pollution control and waste disposal

Extensive education and awareness campaigns that have been undertaken by the EPA such as the "Hey Tosser!" litter campaign, and the "Love Food, Hate Waste" campaign. The wood smoke notice powers introduced in 2006 were accompanied by an extensive awareness-raising and educational program when they took effect, including detailed information and training for council officers who respond to community complaints. Waste management has improved as a result of costly levies imposed on the weight of waste disposed at landfills. As a result, much waste previously sent to landfill is now recycled and reused. Levies and licence fees provide a financial incentive to manage wastes in ways that are less environmentally harmful.

• In many inland catchments treated sewage that once polluted waterways now fertilises rural land, as a result of load-based licensing (see [9.1650]) of treatment works. • Financial incentives have been provided to buy more environmentally efficient household

appliances (eg washing machines), replace out-dated equipment (eg old wood-fired domestic heaters) or buy more environmentally friendly business technology (eg on-site recycling equipment for business premises though the Bin Trim Rebates Program, which has $9.4 million in funding allocated to the program: see http://www.epa.nsw.gov.au/wastegrants/bin-trim-rebates.htm). The extended producer responsibility schemes under the Waste Avoidance and Resource Recovery Act 2001 provide an example of a co-regulatory approach. Target industries are put on notice that they need to improve their waste management practices voluntarily, or risk government regulation. Educational, technological, market and co-regulatory approaches seek cleaner production, beyond the minimum controls stipulated by law.

Role of the Commonwealth [9.40] The Commonwealth has used its external affairs power under the Constitution (s 51(xxix)) to enact legislation giving domestic effect to Australia's obligations under a number of international conventions dealing with pollution and waste disposal at sea (see [9.2320]) and protection of the ozone layer (see [9.400]). Other constitutional powers allow the Commonwealth to introduce legislation regulating most polluting activities by major industries. Under the corporations power (Constitution, s 51(xx)), the Commonwealth can regulate polluting spillovers from the manufacturing activities of trading corporations. Under the trade and commerce power (Constitution, s 51(i)), it can regulate pollution stemming from the production of goods destined for overseas or interstate trade. Alternatively, under the taxation power (Constitution, s 51(ii)), it can use fiscal instruments, such as pollution taxes, to make polluters pay.

In practice, it would be impossible for the Commonwealth to become involved in the detailed day-to-day administration of pollution licensing. It is even anxious to transfer to the States its obligations under international conventions relating to pollution and waste disposal in the three-mile coastal sea, allowing Commonwealth legislation to be "rolled back" when satisfactory State legislation is in place (see [9.2320]). Until this occurs, Commonwealth legislation that is a valid exercise of the external affairs power prevails over any inconsistent State legislation (Constitution, s 109: see [1.520]).

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[9.50]

Regulation of both point-source and diffuse-source pollution has been left primarily to the States. (See [9.1220] for an explanation of these two terms.) It is now clear that the Commonwealth government is not prepared to use its powers under the Constitution to set pollution standards that would apply generally throughout Australia. Instead, the Intergovernmental Agreement on the Environment (May 1992; see [1.540]) provides for a cooperative approach to environmental management. An important initiative resulting from the Intergovernmental Agreement on the Environment was the establishment of the National Environment Protection Council.

National environmental protection measures The Notional Environment Protection Council [9.50] The National Environment Protection Council was established under section 8 of the National Environment Protection Council Act 1994 (Cth) (NEPC Act). Complementary legislation has been passed by each of the States, for example, the National Environment Protection Council (New South Wales) Act 1995.

The National Environment Protection Council comprises a ministerial representative from each of the States and Territories and the Commonwealth (NEPC Act, s 9). The Council can establish nationally applicable national environmental protection measures (NEPMs) (ss 12, 14 ), but must give notice of its intention to make them (s 16).

What con be covered? [9.60] NEPMs can only be made in relation to the following (very limited) range of matters (NEPC Act, s 14(1)):

• ambient air quality • ambient water quality • noise, where uniformity is required because of the existence of a national market for goods or services • assessment of site contamination • environmental impacts associated with hazardous wastes • the reuse and recycling of used materials • motor vehicle emissions or noise.

(9.110)

non-compliance. The only mechanism for monitoring State compliance is a duty to report annually to the Council on the implementation and effectiveness of NEPMs (s 23). These reports, together with a report from the Council, are tabled in the Commonwealth Parliament (s 24).

Ambient air and water standards [9.90] There is no commitment to the introduction of legally binding, quantifiable standards (see s 14(3)). The Council may determine that it is more effective to set goals, which are simply "desired environmental outcomes", or to lay down guidelines on possible means of meeting desired outcomes (ss 6(1), 14(3)). Even if it does opt for standards, the Council has no power to lay down air and water pollution discharge limits on the quality and quantity of emissions from industrial point-sources that can be enforced against individual polluters. All it can do is set ambient air and water standards; that is, standards relating to overall air or water quality in a particular area or watercourse, based on existing information about the adverse effects of different pollutants. It is then left to each State to determine what particular emissions it will permit within these overall limits.

Variations between States [9.100] States that have relatively few sources of pollution, or environments that disperse pollution more rapidly, can be more generous when it comes to discharge standards for individual polluters. In other words, even when ambient air and water standards are fixed by the Council, there will still be variation in discharge standards between the States, and as a result some States will continue to have a competitive advantage when it comes to attracting investment. This makes nonsense of one of the claimed objectives of the NEPM arrangements "that decisions by business are not distorted and markets are not fragmented by variations between jurisdictions" in environmental protection measures (s 3(6)).

Current notional environmental protection measures [9.110] Seven NEPMs have been made:

• The national pollutant inventory NEPM (February 1998, as varied in August 2000, August •

Procedure [9.70] A draft NEPM and an impact statement must be prepared and exhibited for public comment (NEPC Act, ss 16 - 19). Promulgation of the measure requires a two-thirds majority of the Council (s 28). The final NEPM must be tabled in the Commonwealth Parliament, and can be disallowed by either House (s 21).

Enforcement [9.80] Once a NEPM has been made, it is the responsibility of each State and the Commonwealth to implement and enforce it (NEPC Act, s 7). The Council does not impose sanctions for

chapte1- 9 Pollution control and waste disposal

•

2007 and November 2008) requires industries that use certain toxic substances to report their annual emissions and transfers to air, land and water to a national database or inventory. This data is then made publicly available. The NEPM on ambient air quality (June 1998, as varied May 2003, variations proposed as at July 2015) sets ambient air quality standards and goals, and monitoring and reporting protocols, for certain air pollutants (carbon monoxide, nitrogen dioxide, photochemical oxidants (such as ozone), sulphur dioxide, lead and particles as PMl0. It does not apply to indoor air pollution. Advisory reporting standards for fine particles 2.5 micrometres or less in size (PM2.5) were introduced in 2003. Variations which are currently proposed seek to change the advisory reporting standards for PM2.5 to performance standards and to introduce tougher standards for PMlO and PM2.5. The NEPM on movement of controlled waste between States and Territories (July 1998, as varied December 2004, November 2010 and December 2012) imposes waste licensing, tracking and prior notification requirements in relation to the movement of hazardous controlled wastes across State and Territory borders.

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• •

•

[9.120]

The purpose of rhe air toxics NEPM (December 2004, minor variations made October 2011) is to improve the information database on ambient air toxics, for example, volatile and semi-volatile organic compounds, polycyclic aromatic hydrocarbons, heavy metals and aldehydes, with a view to then developing standards for these air toxics. The NEPM for assessment of contaminated sites (December 1999, amended April 2013) provides a nationally consistent process for assessing site contamination, and a series of general principles to follow in assessing contaminated sites. The diesel vehicle emissions NEPM (June 2001, varied June 2009) provides a framework for the management of emissions from existing (in-service) diesel powered vehicles. It is designed to facilitate compliance with in-service emissions standards, and includes inspection, maintenance, smoky vehicle and retrofit program guidance.

• The used packaging materials NEPM (July 1999, remade 2011, with retrospective effect

from 15 July 2005, due to issues regarding registration of previous variations) aims to promote used packaging material reuse and recycling by supporting and complementing the Australian Packaging Covenant, an industry self-regulatory instrument (see [9.2410]). As part of the current development of a National Clean Air Agreement between the Australian Environment Ministers, further consideration is being given to whether some of the NEPMs require amendment or should be revoked (see Department of the Environment (Cth), Working Towards a National Clean Air Agreement: Discussion Paper (March 2015)). The agreement is proposed to be finalised by December 2015 (see http://www.environrnent.gov.au/protection/airquality/national-clean-air-agreernent). The text and other information about the implementation of the NEPMs can be found on the National Environment Protection Council website (http://www.nepc.gov.au/horne).

Chemicals The National Chemical Information Gateway [9.120] In 2004, the Environment Protection and Heritage Council launched a useful information

resource, the National Chemical Information Gateway web page (http:// www.apps5 a .ris.environrnent.gov.a u/pu bgate/cig_pu blic/! CI GPPUBLI C. pStart). The web page provides information and resources on topics including household chemicals, exposure and safety, chemicals by name, chemicals and the environment, chemicals in agriculture, chemicals and human health, regulators and legislation, main organisations, international portals, chemicals databases, chemicals in business, hobbies and the arts, and education and research. The assessment of chemicals is one area in which the Commonwealth has been prepared to invoke a range of powers under the Constitution to validate intervention. There are separate schemes dealing with the assessment of:

• agricultural and veterinary chemicals • industrial chemicals • medicines • food additives.

(9.150]

chapter 9 Pollution control and waste disposal

The agricultural and veterinary chemicals scheme relies on a cooperative arrangement with the States and is discussed in Chapter 11. The medicines scheme is regulated by the Therapeutic Goods Act 1989 (Cth), and the food additives scheme by the Food Standards Australia New Zealand Act 1991 (Cth).

Assessment of industrial chemicals [9.130] Industrial chemicals are regulated under the Industrial Chemicals (Notification and Assessment) Act 1989 (Cth). This Act claims Commonwealth constitutional power in dealing generally with the manufacture of industrial chemicals, on the grounds that it is implementing obligations under international conventions (Constitution, s 51(:xxix)).

The legislation complements the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth).

The industrial chemical assessment scheme [9.140] The industrial chemical assessment scheme is known as the National Industrial Chemicals Notification and Assessment Scheme (NICNAS). It is administered by the Commonwealth Department of Health. The environmental assessment of chemicals is undertaken by the Commonwealth Department of the Environment and considered by NICNAS as part of its decision making. A 2014 handbook to help manufacturers and importers of industrial chemicals comply with the scheme is available from the NICNAS website (http://www.nicnas.gov.au/ regulation -and-cornpliance/nicnas-hand book).

The aims of the scheme include assisting in the protection of both people and the environment "by finding out the risks to occupational health and safety, to public health and to the environment that could be associated with the importation, manufacture or use of the chemicals" (Industrial Chemicals (Notification and Assessment) Act 1989 (Cth), s 3(a)). The scheme distinguishes between listed and new chemicals (s 5).

Listed chemicals [9.150] The particulars of listed chemicals are given in the Australian Inventory of Chemical Substances. In July 2015 there were approximately 40,000 chemicals listed. Listed chemicals can be imported or manufactured without obtaining an assessment certificate or permit (s 11).

The inventory is available to the public, except for a confidential section (ss 15, 16). It can be accessed online via the NICNAS website (http://www.nicnas.gov.au/regulation-and-cornpliance/ aics). A chemical is included in the confidential section if publication of its particulars: could reasonably be expected to prejudice substantially the commercial interests of the applicant; and the prejudice outweighs the public interest in the publication of those particulars (ss 14(4), 18A(2)). There are limits on how long a chemical can remain in this section (s 19).

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[9.160)

New chemicals [9.160] It is an offence to manufacture or import an unlisted (new) industrial chemical without an assessment certificate (ss 21(1), (lA)). Anybody can apply for an injunction to prevent the commission of an offence under the Act and to require that positive action be taken (s 83).

• • • •

There are a number of exceptions to the requirement for an assessment certificate: a commercial evaluation permit lasting for up to two years (and renewable once) can be granted to enable the commercial evaluation of quantities of chemicals not exceeding 4000 kilograms (ss 21(2)(a), 21A- 21P) a low volume permit can be issued for the manufacture or import of up to 100 kilograms of a chemical, or 1,000 kilograms in certain circumstances, Australia-wide, if the Director of NICNAS is satisfied that the intended use does not constitute an unreasonable risk to occupational health and safety, health or the environment (ss 21(2)(6), 21Q, 21U). Conditions can be varied after the permit has been issued (s 21W) the Director can issue a controlled use permit in respect of a new industrial chemical that poses only a low health or environmental risk because its use, handling and disposal are highly controlled (ss 21(2)(c), 22A- 220) the Minister has a broad discretion to issue an introduction permit to someone who has applied for an assessment certificate, if satisfied that it is in the public interest to act without delay while the chemical is being assessed, and consistent with the "reasonable protection of occupational health and safety, public health and the environment" (ss 21(2)(d), 30).

In 2011 amendments were made to allow new industrial chemicals to be included in the Australian Inventory of Chemical Substances without obtaining an assessment certificate if the chemical is currently in use in Australia and it was previously regulated under certain Commonwealth legislation (ss 15AA- 15AB). Before including such a chemical in the inventory the Director of NICNAS is required to:

• "consider whether the use of the chemical poses an unreasonable risk to occupational health and safety, public health or the environment" • notify the proposed inclusion in the Chemical Gazette • consider any public submissions (s 15AA).

Various other exemptions also apply in relation to matters such as development and research, and cosmetics (ss 21(3) - (6)).

[9.210)

chapter 9 Pollution control and waste disposal

For other chemicals, a manufacturer or importer of a new industrial chemical applying for an assessment certificate must submit a written notification statement about the chemical, as well as any other relevant information that it ought reasonably to be aware of (ss 23, 28) . The statement must include information about occupational health and safety and environmental impact (eg, likely releases into the environment and disposal). It must, for a number of new chemicals, also ordinarily include information, obtained by specified methods and from specified raw data, on:

• human and animal toxicity • biodegradability • potential to bioaccumulate (s 23, Schedule).

The NICNAS Director may waive these requirements in certain circumstances (s 24). There is no provision requiring the Director to consult others who might have relevant information.

The assessment report [9.190] .The NICNAS Director prepares an assessment report reviewing an application. Among other thmgs, the assessment report must contain such recommendations "as may reasonably be made" on appropriate uses, methods of disposal and controls to limit environmental emissions including permissible emission levels (s 33 ). '

After the applicant has been given the opportunity to request variations to the report (s 37) copies must be given to appropriate State and Commonwealth authorities, unless the applicatio~ is withdrawn (s 38). A notice must then be published in the Chemical Gazette, indicating that members of the public can obtain copies of the public report on the NICNAS website (s 38(5)). An assessment certificate is issued within seven days of a copy of the assessment report being given to the prescribed Commonwealth, State and Territory authorities (s 39(1)).

The public report [9.200] The public report consists of the assessment report, minus material exempted on the grounds of potential commercial prejudice (ss 38(5)(c), 34, 75).

A person, including the applicant, can apply to have the public report varied. It is only at this point that members of the public can participate by advancing reasons why a report should be varied or why a variation should not be made (s 40).

Assessment of new industrial chemicals

Limited purpose of the assessment certificate

The object of the assessment [9.170] The object of the assessment is to determine the risk of adverse health, safety and environmental effects arising from not only the manufacture, but also the use, storage, handling and disposal of the chemical, including the extent to which the risk can be reduced by compliance with procedures relating to the manufacture, use and discharge into the environment of the chemical or waste products (s 32).

Applying for an assessment certificate

[9.21 OJ Assessment certificates do not guarantee safety. In the end, the applicant must be given an assessment certificate, and after five years the particulars of the chemical must be included in the Australian Inventory of Chemical Substances (s 14(1)). There is no provision for the assessment to be followed by Commonwealth regulation of the chemical. The issue of whether regulatory measures should be taken in light of the findings of the assessment is left to the States (see [9.290]). The purpose of the assessment certificate is simply to certify that the chemical has been assessed under the provisions of the legislation, not to indicate that manufacture and use are safe, or that this will only be so under certain conditions.

[9.180] Certain chemicals of low concern can be self-assessed, with the application form being adopted as the assessment report (ss 23A, 33A- 33B).

Proceedings cannot be taken against the Commonwealth by anyone who suffers damage as the result of relying on an assessment (s 101).

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[9.220]

Reassessment [9.220] The assessment report may require the Director of NICNAS to be notified if certain circumstances occur in the future (s 64(1)), and the Director may then, in effect, insist on a reassessment if importation or manufacture is to continue (ss 65(1), 67, 68(1)). The legislation sets out other post-assessment changes that trigger this notification requirement (eg, if additional information becomes available about health or environmental risks or if the method of manufacture changes and this could result in increased risks) (s 64(2)). In these circumstances, the Director may also require a reassessment (ss 65(2), 67, 68). There is no provision for members of the public to participate in the reassessment process (see s 69(1)).

Assessment of listed industrial chemicals Priority existing chemicals [9.230] The legislation makes no commitment to the eventual assessment of all listed (existing) chemicals. If, however, the Director of NICNAS has reasonable grounds for believing that the manufacture, handling, storage, use or disposal of a listed chemical, or a chemical subject to a commercial evaluation permit, may present a risk of adverse health or environmental effects, the Director may recommend to the Minister that it be declared a priority existing chemical (s 50). The recommendation (and the declaration by the Minister, if that occurs) must specify (ss 50B, 51):

• •

whether the recommendation applies to the chemical generally or is restricted to its manufacture, handling, storage or use in a specific geographical area, in specific circumstances or for specific purposes what matters must be taken into account in preparing the assessment report on the chemical and the information required to accompany the application.

The Minister must also specify whether a preliminary or a full assessment is required (s 51(2)(6)). The Director may give notice that they are considering making a recommendation in the Chemical Gazette, requiring anyone involved in the importation or manufacture of the chemical to provide relevant information (s 48) . There is no provision for members of the public to participate unless the Director considers that they have such information (s 48(2)(a)). The Director must prepare a summary of the information supplied within 90 days, and give notice in the Chemical Gazette as to where a copy of the summary can be obtained (s 50A) . It is an offence to import or manufacture a priority existing chemical unless an application for an assessment has been made (s 56). If no application is made, the Director can order an assessment (s 57(2)).

What the assessment must consider [9.240] Matters that can be required to be considered in the assessment of priority existing chemicals include:

• •

the properties of the chemical its intended use

[9.280]

• •

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any adverse effects on people or the environment that may result from the use "the extent to which the environment, persons in a particular occupation or the public will be exposed to the chemical" (s 51(3)) .

If a full assessment is intended further matters may be required (ss 51(3), 51(5)). Information may be sought by notice in the Chemical Gazette, not only from those involved in importation and manufacture, but from anybody thought to have it (s 58). Failure to comply with a notice without reasonable excuse is an offence (s 58(8)).

The assessment report [9.250] On completion of the assessment, a draft assessment report must be prepared (s 60C). A final assessment report, incorporating any corrections or variations made, is then prepared (s 60F). The report must "include a summary of the health, safety and environmental matters considered in the assessment", and recommend precautions and restrictions to ensure the safe handling, storage and disposal of the chemical (s 60B). Once the final assessment report is published, the chemical ceases to be a priority existing chemical (s 62).

Regulation of priority existing chemicals [9.260] Regulatory measures are left to the States. But during the period between declaration of a priority existing chemical and finalisation of the assessment, the Minister can take regulatory measures where there are reasonable grounds for believing that an activity involving the chemical, including use and manufacture, "gives rise to an unacceptable risk of adverse health effects or adverse environmental effects". In this situation, a notice must be issued prohibiting the activity (s 61).

Registration of importers and manufacturers [9.270] The Industrial Chemicals (Notification and Assessment) Act 1989 (Cth) imposes a registration scheme for all importers and manufacturers of industrial chemicals (ss 80A- 80W). It is an offence to introduce industrial chemicals in any registration year without being registered (s 80B). Applications for registration must be made to the Director of NICNAS and must include specified information and a registration fee (ss 80E - 80F). If an application is approved, a registration certificate, which is valid until the end of the registration year, is issued (ss 80H, 80J). Details of the person registered and information about the chemical (other than confidential commercial information) are then recorded in a publicly available Register of Industrial Chemical Introducers (ss 80C - 80D). Registrations must be renewed annually (s 80K).

Improvements to NICNAS and its implementation in NSW [9.280] The Existing Chemicals Program for priority existing chemicals was reviewed by the Commonwealth government in 2006. NICNAS was also reviewed in 2012-13 with reforms

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[9.290]

currently proposed (see below). A lack of information about the estimated 40,000 chemicals listed on the Australian Inventory of Chemical Substances inhibits the ability to effectively prioritise the review of these chemicals based on existing scientific literature. Since July 2012 NICNAS has been using a framework known as Inventory Multi-tiered Assessment and Prioritisation (IMAP) in order to assess the environmental and health impacts of 3,000 existing chemicals. The IMAP framework aims to determine if the chemical poses no concern, further measures are needed for the chemical to be used safely, or if further assessment of potential environmental and health risks of the chemical is required. The framework makes use of existing international information (see http://www.nicnas.gov.au/chemical-information/imapassessments/accelerated-assessment-of-industrial-chemicals-in-australia and the links on that page).

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s 15(2)). To do so, the EPA must first advertise its intentions and invite submissions (s 19). In making an assessment, it must consider the likely effects of the chemical on the environment arising from activities involving the chemical, including manufacture, use and disposal, as well as other matters relevant to the public interest and the protection of the environment (s 17). Following an assessment (ss 17, 18), the EPA can make a chemical control order (s 20) . The order can absolutely prohibit activities or, on the recommendation of the Hazardous Chemicals Advisory Committee (which is now defunct - see [9.2560]), require them to be licensed (ss 23, 24). It can only prohibit an activity outright if:

• •

it is reasonably "necessary to prevent or minimise any adverse effect on the environment", and a recommendation of the Hazardous Chemicals Advisory Committee or the Minister's consent is obtained (s 22).

In June 2007 the Environment Protection and Heritage Council endorsed the National Framework for Chemicals Environmental Management (NChEM). This framework aims to improve co-ordination of the implementation of NICNAS assessments by States and Territories. Four key actions targeted through the NChEM framework are strengthening environmental risk assessment of chemicals, nationally agreed actions to control environmental risks from chemicals, improving information gathering about chemicals, and considering priority and emerging chemical issues affecting the environment.

Appeals

In 2007 and 2008 a range of cooperative agreements between the Commonwealth, States and Territories further progressed a streamlined and harmonised system of national chemicals and plastics regulation through non-legislative means such as improved administration and communication.

[9.l00] Anybody at all can appeal to the Land and Environment Court against the EPA's decision to make a chemical control order. One ground for challenge is that the basis on which the decision was made was erroneous, thus allowing the prior assessment to be reviewed (EHC Act, s 38).

A review of NICNAS was undertaken in 2012-13. In May 2015 the Commonwealth Government announced that it would be reforming the assessment procedure in order to simplify it and implement a proportionate risk-based approach, with regulatory emphasis being placed on chemicals of higher risk. The proposed reforms will establish three classes of new chemicals based on the level of risk of the chemical. Class 1 will be very low risk, Class 2 low risk and Class 3 medium or high risk. The level of assessment required will vary for each class. Class 1 chemicals will not require assessment. Class 2 will require self-assessment and notification to NICNAS. Class 3 chemicals will require an assessment certificate. Amendments are also proposed to streamline the assessment of priority existing chemicals. The reforms are expected to be progressively implemented between 2016-2018 (see http://www.nicnas.gov.au/about-nicnas/ nicnas-reforms and the links on that page). Reforms have also been proposed to modernise the Environmentally Hazardous Chemicals Act 1985 (NSW) (EHC Act) and ensure it works better with the Commonwealth scheme (see EPA, Proposed Reforms to Environmentally Hazardous Chemicals Legislation: Discussion Paper (2015); see also [9.2560]).

Regulation of chemicals in NSW Chemical control orders [9.290] In practice chemicals assessment occurs under Commonwealth laws (see above). However, the earlier NSW legislation allows the EPA to assess existing chemicals (EHC Act,

Once a chemical is subject to a chemical control order, the legislation labels it an environmentally hazardous chemical (s 3(1)).

There is nothing in the EHC Act specifically allowing a chemical control order to be made following an assessment under the National Industrial Chemicals Notification and Assessment Scheme, although in practice this is used as the main method of giving teeth to the Commonwealth assessment scheme in NSW.

Reassessments [9.ll0] If the EPA or (on appeal) the court, makes a chemical control order, that is still not the end of the matter. Anybody who wishes to carry out an activity that is either prohibited or subject to a licensing requirement under the order can apply to the EPA for an assessment of that specific activity in relation to the chemical (EHC Act, s 13(1)). The EPA has no option but to comply, and the whole process is reactivated (s 15(1)). The EPA can also order a reassessment on its own initiative (s 15(2)). So far, only a small number of assessments of existing chemicals have been carried out and five chemical control orders are in place as at July 2015. These include chemical control orders for polychlorinated biphenyl wastes and scheduled chemical wastes (a list of 24 significant chemicals which are persistent, bioaccumulate or are toxic to living things). At the time of writing the chemical control orders are under review. For a detailed discussion of the assessment process, chemical control orders, licensing provisions and third-party rights, see the discussion of chemical wastes, which are also covered by the EHC Act, at [9.2560].

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Radioactive substances and apparatus (9.320] Radioactive substances are specifically excluded from the operation of the EHC Act

(s 3(1)). They are regulated under the Radiation Control Act 1990. The Act aims to protect humans and the environment from:

• •

harmful radiation exposure "to the maximum extent that is reasonably practicable, taking into account social and economic factors and recognising the need for the use of radiation for beneficial purposes" security enhanced sources (s 3(1)).

The Radiation Control Act 1990 (NSW) creates licensing, accreditation and safety obligations in relation to radioactive substances, sealed source devices and radiation apparatus (including x-ray machines used for diagnostic imaging) (ss 6 - 9). A number of amendments were made to the Act by the Radiation Control Amendment Act 2010 to ensure improved management of radiation sources, particularly from the radiation security perspective. The amendments were progressively commenced from the date of assent, with a number of the changes coming into force in July 2013. The Radiation Advisory Council can provide advice to the EPA in relation to its licensing and accreditation functions. It can also provide advice to the Minister on certain matters, such as granting exemptions (Radiation Control Act 1990, s 30). The Council has 17 members, including persons with specified expertise in radiation practices and health issues arising from radiation (s 29).

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20 October 2010 (Frank Sartor, Minister for Climate Change and the Environment)). The Act now requires a single radiation management licence to be held by a "person responsible" for "regulated material" (s 6). "Regulated material" means radioactive substances, ionising radiation apparatus, prescribed non-ionising radiation apparatus and sealed source devices (s 4(1)). A "person responsible" includes:

• • •

the owner persons storing, selling or giving regulated material away persons that have possession of regulated material, except if they are using the regulated material and hold a radiation user licence (see below), or they are only transporting the regulated material (s 6 (1 )).

The Minister may grant a licensing exemption and certain other exemptions apply (s 6(3); Radiation Control Regulation 2013 (NSW), cl 8 and Sch 3). It is an offence not to obtain a radiation management licence where one is required. The maximum penalty is $165,000 for a corporation and $27,500 and/or two years imprisonment for individuals (s 6(2)).

Radiation user licences [9.350] Individuals that "use" regulated material are required to have a radiation user licence

[9.330] The Act contains three radiation protection principles that are required to be taken into

(s 7). This includes people that operate regulated material, use regulated material during manufacture, possess it for use, or handle or manipulate the regulated material (s 4(1)). Individuals that may need a radiation user licence include those such as radiographers, dentists, vets, service engineers, technologists, and scientists (see http://www.epa.nsw.gov.au/radiation/ licensing/licenceuse.htm). Certain exemptions apply (Radiation Control Regulation 2013, cll 9 - 11).

consideration by any person exercising functions under the Act, as well as licence holders (s 3(3)). These principles are:

It is an offence not to obtain a radiation user licence where one is required. The maximum penalty is $27,500 and/or two years imprisonment (s 7).

Radiation protection principles

• • •

justification of a practice: assessing whether the benefits of ionising radiation exposure outweigh the detriments optimisation of protection: ensuring that individual doses, people exposed and likelihood of exposure to ionising radiation are "kept as low as reasonably achievable taking into account economic and social factors" dose and risk limitation: implementing dose limits or other measures to ensure that human health risks from ionising radiation exposure are kept within acceptable levels (s 3(2)).

The principles aim to ensure that patients, medical workers and the public have cancer risks resulting from exposure to harmful ionising radiation minimised (New South Wales, Parliamentary Debates, Legislative Assembly, 20 October 2010 (Frank Sartor, Minister for Climate Change and the Environment)).

Details of licences are listed on the public register maintained by the EPA (s 13C). The public register is available on the EPA's website: http://www.epa.nsw.gov.au/publicregister/index.htm.

Security requirements [9.360] Certain sealed radioactive sources are specified by the Regulation to be a "security enhanced source" (s 4(1); Radiation Control Regulation 2013, cl 6). The Act and Regulation contain security and identity checking requirements in relation to security enhanced sources in order to prevent them from being misused for purposes such as terrorism. This includes:

• • •

requirements to prepare security plans; implementing security protection measures; and carrying out identity checks of certain persons (ss 14 - 14B; Radiation Control Regulation 2013, ell 15 - 25).

Radiation management licences [9.340] Previously the Act required each individual sealed source device and certain radiation

apparatus to be registered. This resulted in individual health service providers having to obtain numerous registrations (see New South Wales, Parliamentary Debates, Legislative Assembly,

Accreditation requirements [9.370] Persons carrying out activities that are specified in the regulations as activities of a

consulting radiation expert or radiation security assessor must obtain accreditation from the EPA

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[9.380]

(s 8; Radiation Control Regulation 2013, ell 12 - 13 ). Activities of consulting radiation experts include advising on and assessing certain radiation safety matters in order to certify compliance with relevant radiation management licence conditions (cl 12). Radiation security assessors can review and assess security plans for compliance with s 14 of the Act and endorse their compliance (cl 13).

Other powers in the Act (9.380] The investigation powers in the Protection of the Environment Operations Act 1997

(NSW) (POEO Act) extend to the Radiation Control Act 1990 and regulations (Radiation Control Act 1990, s 15) (see [9.1740) in relation to POEO Act investigation powers). The EPA has various other powers to address radiation issues under the Act. These powers include:

• issuing notices to avoid or remedy contraventions or unnecessary radiation exposure or contamination (s 18) • powers to remedy dangerous situations (s 19) • decontaminating and acquiring premises that are contaminated by radioactivity (s 21) • requiring radiation management licence holders to provide a financial assurance, for example, to cover the costs of any potential remediation or clean-up required (Part 3A).

[9.410]

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the Code of Practice for the Safe Transport of Radioactive Material must be observed in the transport of radioactive substances (cl 36; Code of Practice for the Safe Transport of Radioactive Material published from time to time by the Australian Radiation Protection and Nuclear Safety Agency)

• radiation accidents must be reported, investigated and recorded (cll 37 - 39) • procedures for dealing with faulty radiation apparatus and sealed source devices must be followed (cl 40) • there is a general duty on persons responsible for regulated material to protect the public from ionising radiation exposure above specified dose limits (cl 42) • warning signs must be displayed at premises where regulated material is kept (cl 46) • the loss or theft of regulated material must be reported to the Chairperson of the EPA (cl 44) • the loss, theft, intentional damage or unauthorised access of a security enhanced source, in

circumstances where a prescribed security measure has been breached, must be reported to the EPA and Police (cl 45). From May 2009, the now repealed Part 4A of the Radiation Control Act 1990 had placed controls on the use of ultraviolet radiation solarium tanning units. Since 31 December 2014 these services were then banned under the Regulation which provides that commercial "cosmetic tanning services" which use radiation apparatus emitting ultraviolet radiation to tan human skin are banned (cl 41).

The amendments also introduced a new offence of abandoning a radiation substance without a reasonable excuse (s 33A).

Ozone-depleting substances Radiation safety provisions (9.390] The Regulation contains additional provisions in relation to radiation safety and the

Commonwealth legislation

protection of public health (Radiation Control Regulation 2013, Pt 4).

(9.400] When it comes to certain chemical substances identified as contributing to depletion of the ozone layer, the Commonwealth has legislated to control rather than simply assess through the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth). The Act reflects Australia's international obligations under the Montreal Protocol (s 3). The Act is currently under review with an interim report proposed for public comment around mid-2015 (see http://www.environment.gov.au/protection/ozone/legislation).

In addition to their obligations under the Work Health and Safety Act 2011 and related regulations, employers must comply with the workplace radiation safety obligations contained in the Radiation Control Regulation 2013 that:

• • •

set ionising radiation dose limits (cl 26) require occupationally exposed persons to be informed (cl 27) require preparation and implementation of a radiation management plan where directed by the Chairperson of the EPA (cl 28)

The Montreal Protocol

occupationally exposed persons, recording of personal radiation exposure, monitoring of radiation at a premises, and maintenance of monitoring devices (cll 29 - 32)

production of certain chlorofluorocarbons (CFCs) at 1986 levels from 1989, followed by a timetabled reduction. Halons were to be frozen at 1986 levels from 1992.

• require provision of personal monitoring devices to

• require a radiation safety officer or radiation safety committee to be appointed where directed by the Chairperson of the EPA (cl 43). Other safety provisions in the Regulation provide that:

• the consent of the Chairperson of the EPA must be obtained before regulated material is disposed of (cl 34) • records must be kept of disposal of regulated material (cl 35)

(9.410] The 1987 Montreal Protocol to the Vienna Convention provided for a freeze on the

In 1990 and 1992, the protocol was reviewed and agreement reached to accelerate the phase-out of CFCs by 1996, including a number of lesser known CFCs not originally covered. Time-tables were also set for the phase-out by 1996 of halons, methyl chloroform, carbon tetrachloride and hydrobromofluorocarbons (HBFCs). In 1992 it was agreed to freeze production of hydrochlorofluorocarbons (HCFCs) by 1996, followed by a time-tabled reduction and phase-out by 2030. From 1995 methyl bromide was frozen at 1991 levels.

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[9.420]

Following a review of the legislation in 2001, further amendments in 2003 extended it to cover synthetic greenhouse gases used as alternatives to ozone depleting substances. Synthetic greenhouse gases do not directly harm the ozone layer, but they have a greenhouse impact thousands of times greater than that of carbon dioxide. The 2003 amendments:

•

introduced a licensing system (with a licence application fee, activity levy and reporting obligations) for refrigeration and air-conditioning equipment imported into Australia containing HCFC or the synthetic greenhouse gas hydrofluorocarbon (HFC)

• provided for national consistency in end-use regulation of ozone depleting substances and

their synthetic greenhouse gas alternatives through a power to create regulations for this purpose, replacing State and Territory end-use regulations that varied in both nature and scope (see Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 (Cth), Pt 6A).

Ozone depleting substance licences [9.420] The Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth) regulates the manufacture, import and export of ozone depleting substances and synthetic greenhouse gases through a licensing system tailored to different chemicals and activities. It provides for four types of licences (s 13A(l)): 1.

a controlled substances licence

2.

an essential uses licence

3.

a used substances licence

4.

an ODS/SGG equipment licence.

Licences stay in force for two years (s 8A), but can be terminated by the Minister if this 1s necessary to give effect to amendments to the Montreal Protocol (s 19A). Controlled substances licences

[9.430] A controlled substances licence is required for the manufacture, import and export of HCFCs, methyl bromide and synthetic greenhouse gases (ss 13(1), (lAA), (lA)), with the exception of the import or export of recycled or used HCFCs or methyl bromide which requires a used substances licence (s 13(1AB); see below). The Act provides for the imposition of tradeable quotas (s 35) on licensees engaging in activities involving HCFCs (ss 18, 23 - 35). The Commonwealth Environment Minister may, on the application of a licensee, allocate a quota for HCFCs, having "regard to Australia's international obligations, and the policies of the Commonwealth Government, in relation to the manufacture, importation or consumption of scheduled substances" (s 28). Quota periods generally last for two years (s 8(1)), and towards the end of this period applications must be made for renewal (ss 27 -28). At this point, quotas can be reduced, not only to satisfy Australia's international obligations, but also Commonwealth government policies.

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Used substances licences

[9.450] A used substances licence allows the licensee to import or export specific recycled or used substances (s 13A(4)). Recycled substances are substances "collected from machinery, equipment or containers during servicing or before disposal of the machinery, equipment or containers; and [which are] intended to be re-used or destroyed" (s 7). An essential uses licence and a used substances licence are required for activities in relation to stage-1 or stage-2 scheduled substances (CFCs, halons, carbon tetrachloride, methyl chloroform and bromochloromethane) which were phased out in 1996 (ss 13(4) - (6)). Thus, by way of exception, a licence can permi.t some activities in relation to these chemicals even though they have been phased out. 005/SGG equipment licences

[9.460] An ODS/SGG equipment licence allows the licensee to import:

• •

ODS equipment: air-conditioning or refrigeration equipment containing HCFCs (ss 8C, 13A(5)). SGG equipment: equipment or products that contain an HFC, perfluorocarbon (PFC) or sulphur hexafluoride (unless the equipment or product is excluded) (ss 8D, 13A(5)).

Refrigerants and fire protection agents [9.470] During 2005, controls commenced in stages on the trading or handling of:

• methyl bromide • CFC • HCFC (hydrofluorocarbons) • HFC • PFC • halon for refrigeration, air conditioning and fire protection. •

The controls are as follows: Anyone who carries out work in relation to refrigeration or air-conditioning equipment must hold a refrigerant handling licence, except in certain specified circumstances (Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 (Cth), reg 111).

• Anyone who acquires, possesses or disposes of CFC, HCFC, HFC or PFC refrigerants must hold a refrigerant trading authorisation (reg 112). • Anyone who possesses halon must hold a permit (reg 113). • Controls are placed on methyl bromide imported after 1 January 2005 (regs 200 - 245). • Controls are in place in relation to the handling of ozone depleting substances contained in fire protection equipment and extinguishing agents (regs 302 - 304 ).

Offences Essential uses licences

[9.440] An essential uses licence is required for the manufacture, import or export of specific chemicals for essential uses (ss 13(4), (5)). What constitutes an "essential use" is defined by a decision of the parties adopted under the Protocol (s 7).

[9.480] Activities are prohibited unless they are licensed and (where relevant) within quota. The Act contains both criminal offences and civil penalty provisions that apply where a breach of the Act occurs. The civil penalty provisions commenced in November 2010 and provide a useful alternative to prosecution (see ss 65AH - 65AJ), particularly for more minor matters.

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[9.490]

The maximum penalty in respect of a criminal prosecution for failing to obtain a licence under the Act or complying with licence conditions is $85,000 (Ozone Protection and Synthetic Greenhouse Gas Management Act 1989, ss 13, 18(7); Crimes Act 1914 (Cth), s 4AA). The maximum penalty under the civil penalty provisions may be much higher than for the equivalent criminal offence (see ss 64C(4), (4A)). One prosecution brought under the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 related to the importation of a stage-1 CFC without a licence. The company concerned pleaded guilty to seven charges of illegally importing CFCs and was placed on a good behaviour bond on condition that it contribute $168,000 towards ozone research (Director of Public Prosecutions v Semal Pty Ltd (unreported, Magistrates Court Melbourne, 8 June 1995)). In addition to criminal proceedings and the civil penalty provisions, the Act also provides that any person can bring civil proceedings to obtain an injunction in order to restrain a breach of the legislation and require action to be taken (s 56).

Manufacture and import prohibitions [9.490] The Act goes beyond Australia's international obligations by prohibiting the manufacture and import of specified products containing specified chemicals or using specified chemicals during operations. This includes (s 38, Schedule 4):

• dry cleaning equipment • vehicle air-conditioning maintenance kits containing small quantities of the chemicals • polystyrene packaging and insulation • aerosol products.

and non-refillable refrigerant containers

These provisions rest their claim to constitutional validity on the corporations and trade and commerce powers (see [1.460], [1.490]) rather than the external affairs power, with consequent limitations on their coverage (s 37). Exemptions can be granted in some situations where there is no practical alternative to using one of the chemicals (s 40).

NSW legislation [9.500] The Commonwealth legislation specifically allows for the enactment of State legislation that is capable of operating alongside it (s 4 ). In NSW, the Ozone Protection Act 1989 contains a system of controls on ozone depleting substances (ss 6 - 13) however the related Regulations were allowed to lapse in August 2006. As a result, offence provisions in NSW legislation (Protection of the Environment Operations Act 1997, s 117) have no practical application (see [9.1110]). The load-based licensing scheme (see (9.1650]) has also been extended to ozone producing chemicals which have higher environmental impacts during the hotter summer weather.

Minimising photochemical smog through vapour recovery at petrol stations [9.510] The chemical reaction of petrol vapours creates compounds which cause photochemical smog and ultimately ozone, particularly in warmer weather. To combat this problem new

[9.520]

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controls for petrol stations now apply. From July 2010 all new petrol stations need to capture petrol vapours from petrol deliveries and larger operators also need to collect vapours emitted when petrol bowsers are used. A number of existing stations are now required to have fitted this equipment. Others will need to fit this equipment by 2017 (Protection of the Environment Operations (Clean Air) Regulation 2010 (NSW), Pt 6 Div 5).

Dangerous goods [9.520] Dangerous goods are regulated under international and national standards which are implemented through NSW laws, which also control storage and transport. International model standards for classifying and labelling dangerous goods are reflected in the Australian Dangerous Goods Code. On-site storage and use of dangerous goods is regulated by WorkSafe NSW and the transport of dangerous goods is regulated by the EPA. The Dangerous Goods Act 1975 (NSW) was repealed on 1 September 2005. At that time, as part of the implementation of national reforms into NSW laws, dangerous goods in workplaces became regulated under the Occupational Health and Safety Act 2000 and regulations made under that Act. That Act was repealed and replaced from 1 January 2012 by the Work Health and Safety Act 2011 (NSW) (WHS Act) which was introduced as part of a national harmonisation of laws in relation to occupational health and safety. The WHS Act places a number of obligations on employers and others to ensure the health and safety of workers and other people in the workplace. The Act also generally applies to the handing and storage of specified dangerous goods outside of the workplace, provided that the amount of the dangerous goods is above a listed threshold (WHS Act, Sch 1; Work Health and Safety Regulation 2011 (NSW), cll 10(1), (lA)). In addition to the obligations contained in the Act, Chapter 7 of the Work Health and Safety Regulation 2011 (NSW) (sets out a number of specific obligations in relation to "hazardous chemicals", a term which is now used in the Regulation to encapsulate dangerous goods. The Regulation places a series of duties in relation to hazardous chemicals on different people, such as manufacturers, importers, suppliers and any "person conducting a business or undertaking at a workplace". Manufacturers and importers, as well as persons that supply hazardous chemicals to workplaces, must ensure that the hazardous chemicals are properly packed and labelled, and that safety data sheets are provided (cll 329 - 340). Persons conducting a business or undertaking at a workplace have a number of obligations in relation to hazardous chemicals including:

• ensuring proper labelling of hazardous chemicals (cll 341 - 343) • obtaining safety data sheets and making these available to workers and others that are "likely to be exposed to the hazardous chemical at the workplace" (cl 344) • maintaining a register of hazardous chemicals at the workplace, and in certain circumstances maintaining a manifest and notifying WorkSafe NSW of certain matters (ell 346 - 348 ) • displaying "outer warning placards" for specified hazardous chemicals (ell 349 - 350) • risk management, including matters such as (ell 351 - 388): - ensuring appropriate safety signage - preventing fires and explosions

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(9.530]

preventing other chemical hazards and incidents containing spills providing for appropriate emergency, fire and safety equipment controlling risk relating to handling and storage health monitoring of workers due to potential exposure to specified hazardous chemicals providing workers with appropriate supervision and training obtaining authorisations in relation to the use, handling or storing of certain carcinogens and prohibiting workers from using, handling or storing certain hazardous chemicals.

Underground fuel storage tanks [9.530] Since 1 June 2008 specific laws have been in place to prevent leaks from underground fuel tanks. The Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2014 (NSW) applies to the installation, use, modification, repair, decommissioning and monitoring of underground fuel tanks. The EPA is the appropriate regulatory authority for underground fuel tanks until 1 June 2017 (Protection of the Environment Operations (General) Regulation 2009, cl 91; see (9.640] in relation to the concept of an "appropriate regulatory authority"). After this time it is expected that local councils will take over these responsibilities and be able to issue clean-up and prevention notices to fix problems caused by leaking tanks.

Under the Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2014, owners and operators must have systems in place to detect leaks in their storage and handling systems for petroleum products, including leaks in fuel tanks and pipes (ell 3(1), 16 - 22). The person responsible for an underground fuel tank (usually the owner/operator) is required to:

• have an environment protection plan for the facility (cl 19) • have secondary leak detection systems (either groundwater monitoring wells or an alternative appropriate system) and a program to test them (cll 16, 21) • implement measures for checking, maintaining and recording data for gauges, indicators, secondary leak detection systems and any other measuring instruments within the storage system (cl 20)

• where leaks have been detected, implement action to identify where the leak is coming from and fix it (cl 22) • have systems in place for record keeping and reporting of leaks (cll 23 - 24). •

The Regulation also includes requirements to ensure that: new storage systems, and any modifications made to existing systems, are properly designed and installed by appropriately qualified persons in accordance with industry standards (cll 5 - 6, 9 - 10)

• new

and modified systems have the mandatory pollution protection equipment and secondary leak detection systems in place (ell 7, 11, 16 - 18).

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[9.550]

The local council must be notified when an underground fuel tank is decommissioned, usually within 60 days of it being decommissioned or, if necessary, remediated (cl 15). The EPA website contains detailed technical notes and guides about implementing requirements under the Regulation.

Transport [9.540] Revised national measures for the transport of dangerous goods are implemented in the NSW Dangerous Goods (Road and Rail Transport) Act 2008, which seeks to protect the environment, as well as public safety and property (s 3 ). The Act and the Dangerous Goods (Road and Rail Transport) Regulation 2014 (NSW) apply the Australian Code for the Transport of Dangerous Goods by Road and Rail. To this end, the Act and Regulation set up a scheme for:

• • • •

setting out the duties which apply to manufacturers, owners, consignors, packers, loaders, prime contractors, rail operators and drivers the licensing of drivers and vehicles absolute prohibitions on the transport of certain categories of dangerous goods secure and distinct packaging and labelling.

There is a general obligation under the Act to ensure, as far as practicable, that dangerous goods are transported by road or rail in a safe manner (s 9( 1) ). Anyone who breaches the Act and who knows, or ought to know, that the breach would be likely to endanger persons, property or the environment, commits an offence (s 9(2)). Goods must not be transported by road or rail if identified by the Dangerous Goods (Road and Rail Transport) Regulation 2014 as too dangerous for such transport (s 8).

The Protection of the Environment Operations Act [9.550] Media-specific pollution legislation was enacted in NSW commencing in the 1960s.

• •

The next round of regulatory reform occurred in the 1990s, and consisted of: the Protection of the Environment Administration Act 1991 (NSW) (POEA Act), which established the EPA to administer the pollution legislation the Protection of the Environment Operations Act 1997 (NSW) (POEO Act), which introduced integrated pollution management legislation, repealing and replacing: -

the the the the the

Pollution Control Act 1970 (NSW) Clean Air Act 1961 (NSW) Clean Waters Act 1970 (NSW) Noise Control Act 1975 (NSW) Environmental Offences and Penalties Act 1989 (NSW).

The POEO Act also contains regulatory provisions for waste management. The Minister for the Environment is responsible for the administration of both pieces of legislation.

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Objects [9.560] The objectives of the EPA are set out in section 6 of the POEA Act, and include the protection, restoration and enhancement of the quality of the environment, having regard to the principles of ecologically sustainable development, as well as reducing the risks to human health and preventing environm~ntal degradation. The POEO Act has three main objects: 1.

to "protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development"

2.

to ensure increased opportunities for public involvement and access to information

3.

to reduce risks to human health and prevent degradation of the environment (s 3).

Preventing environmental degradation [9.570] The POEO Act objectives identify mechanisms that can be used to prevent environmental degradation and human health risks. These include:

• pollution prevention • cleaner methods of production • reduction to harmless levels of the discharge of substances likely to cause harm to the environment • recycling • progressive environmental improvements (s 3(d)).

These mechanisms indicate a move away from reliance on "end-of-pipe" controls such as licensing of point-source emissions, to a new more holistic approach that encompasses pollution prevention and environmental improvement.

Regulating pollution [9.580] The POEO Act complements the environmental planning and project control provisions of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). Under the integrated development provisions of that Act (see [9. 700]), the EPA can put pressure on proponents of high environmental impact projects to incorporate cleaner production technologies at the design and planning consent stage. At the same time, the POEO Act acknowledges that controls over development can never completely eliminate pollution at source when we live in a society that is concerned not only with the damage caused by pollution, but also with the benefits produced by polluting activities. Pollution is tolerated provided it occurs in controlled conditions contained in pollution licences, regulations or environment protection notices. The instruments and strategies available under the POEO Act to prevent or control pollution include:

• protection of the environment policies • environment protection licences • environment protection notices, and other notices directed to specific companies, individuals or public authorities

(9.600)

• • •

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criminal offences directed to individuals and companies, as well as government authorities environmental audits economic measures.

The environment protection legislation binds the Crown (s 315), which means that government authorities and bodies such as government departments, Sydney Water, Endeavour Energy and Forestry Corporation of NSW, as well as individuals and corporations, must comply with it.

Protection of the environment policies [9.590] The POEO Act makes provision for protection of the environment policies (PEPs) designed to set overall policy objectives for environment protection. They give the EPA a statutory framework for developing its policies. Previous noise and air legislation, for example, afforded no regulatory policy context for the granting of individual licences.

• •

PEPs may be made: to further the objectives of the EPA to manage the cumulative impact of existing and future human activities on the environment (s 10).

Chapter 2 of the POEO Act outlines the contents of PEPs and the procedures for developing and implementing them. PEPs may be made in relation to:

• the whole or any part of the State • the environment generally or any part of it • any activity that may impact, or has impacted, on the environment • any form of pollution • any aspect of waste • technologies or processes • chemicals or substances that have or may impact the environment (s 11(4)).

PEPs may also be made for implementing a NEPM agreed to by the National Environmental Protection Council (s 11(3); see [9.50]). In preparing a draft PEP, the EPA must have regard to a number of matters, including (s 13 ):

• the environmental, economic and social impact of the policy • relevant environmental planning instruments under the EPA Act • NEPMs. Impact statements

[9.600] The EPA must prepare an impact statement when making a draft PEP. The impact statement must address a number of matters, including (s 16(2)):

• •

the desired environmental outcomes a statement of alternative methods of achieving these outcomes and the reasons why those alternatives have not been adopted

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(9,610]

the environmental impact of not making the PEP.

Consultation and advertising [9.610] During the preparation of the draft PEP, the EPA must consult with such public authorities, organisations or persons as the Minister directs, or it considers appropriate (s 18).

Notice of the draft PEP and the impact statement must be advertised in accordance with s 17. The public must be allowed to make submissions during a period of at least three months (ss 17(1), (3)) and any submissions made must be taken into consideration by the EPA (s 19). The authority must then submit the draft PEP to the Minister together with a report on submissions received and any consultation undertaken (s 20). The PEP is then formally made by the Governor on the recommendation of the Minister, either in the form of the draft PEP submitted by the EPA to the Minister, or with such alterations as may be recommended by the Minister (s 25). The Minister can direct that PEPs be made without observing the procedures for advertising and public submissions (in ss 15 - 20) in certain cases where:

• the PEP will implement a NEPM • the PEP makes minor amendments, corrects errors or clarifies the intention of another PEP, or • there are special reasons why the PEP should be made without delay. In this case the PEP

becomes an interim PEP; it must include a statement of the special reasons, and will expire after 12 months (ss 22, 23, 27).

Legal effect of PEPs [9.620] The EPA and other regulatory authorities must consider any relevant PEP when exercising the following powers under the POEO Act (s 28):

• • • •

making a licensing decision issuing an environment protection notice granting an exemption exercising any other licensing or environment protection function (this obligation extends to other legislation defined as "environment protection legislation", such as the Contaminated Land Management Act 1997 (NSW) and the Pesticides Act 1999 (NSW) ).

However, PEPs are not binding on the decision-maker; they are only factors to be taken into consideration (like development control plans under the EPA Act; see [5.1310]). Because PEPs can be used to promote integration with the land-use planning process, PEPs must also be considered when granting consent or approval under the EPA Act, or in preparing an EPI under that Act (POEO Act, s 29). A PEP may not create an offence for contravention of its provisions (s 36). This is because PEPs are intended to relate to ambient standards and goals. Failure to comply with a procedural requirement in the course of making a PEP will not invalidate a PEP if there has been substantial compliance (s 38). The validity of a PEP can only be challenged within three months after the date of publication in the Government Gazette (s 37).

[9.640]

chapter 9 Pollution control and waste disposal

Why are there no PEPs? [9.630] The inclusion in the POEO Act of a whole chapter dedicated to the making of PEPs was received with much fanfare. However, since these laws commenced in 1999 no PEPs have been made. The EPA has indicated that the option of using PEPs has been considered occasionally, but in the end other existing tools have provided a solution. The dormant PEP provisions could be used to encourage cross-government policy integration of planning, native vegetation, biodiversity, water licensing and pollution licensing aspects of catchment management. A recent parliamentary inquiry into the performance of the EPA suggested that the EPA make "greater use" of PEPs: Legislative Council General Purpose Standing Committee No 5, Parliament of New South Wales, Inquiry into the Performance of the NSW Environment Protection Authority (2015), p 97.

Responsibility for regulating pollution - The appropriate regulatory authority [9.640] Under the POEO Act a number of the mechanisms that can be used to control pollution can generally only be utilised by the "appropriate regulatory authority" (ARA), for example, environment protection licences, clean-up notices or prevention notices. It is therefore important to determine who the ARA is (although there are some fall-back provisions in the event that the incorrect body exercises ARA powers: ss 212C - 212D). The Act (and regulations) differentiates clearly between premises or activities regulated by the EPA and those that are the responsibility of local councils or another specialised regulatory body, such as the Marine Parks Authority.

• • • • • •

The EPA is the ARA for (s 6): any functions in relation to licences under Chapter 3 of the POEO Act scheduled activities, that is, activities listed in Schedule 1 of the POEO Act which are the activities which require a licence under the POEO Act (see [9.670]; the EPA is the ARA whether or not the activity is currently licensed) non-scheduled activities that hold a licence because of water pollution (see [9. 780]) activities involving the state government or a public authority activities involving an "authorised network operator" (as defined in the Electricity Network Assets (Authorised Transactions) Act 2015) other activities specified under the regulations (see Protection of the Environment Operations (General) Regulation 2009 (POEO (General) Reg) Ch 7 Pt 1 for other activities for which the EPA is the ARA).

Local councils are the ARAs for most non-scheduled, non-licensed works and activities within their local government area. Other public authorities are nominated as the ARA in relation to specified matters either by other provisions of the POEO Act or by the regulations. The marine authority is the ARA in connection with noise control notices relating to boats (s 263) . It also has responsibilities in relation to noise abatement directions relating to boats (s 275). The "marine authority" is the Minister administering the Ports and Marine Administration Act 1995 or Roads and Maritime Services. Roads and Maritime Services is also the ARA for certain non-scheduled activities in relation to non-pilotage vessels in navigable waters (POEO (General) Reg, cl 86).

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[9.650]

Chapter 7 Part 1 of the POEO (General) Reg nominates the ARA for a number of specific areas/activities, for example marine parks, navigable waters, certain entertainment activities and underground fuel tanks.

[9.700]

•

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waste management.

Once an environment protection licence is required to be issued for one form of pollution, it can regulate all pollution resulting from the activity which requires a licence and any other activities carried out at the licensed premises (s 44 ).

"One site, one regulator" [9.650] The principle of "one site, one regulator" now determines responsibility for environmental regulation under the POEO Act. Accordingly, once the EPA has licensed premises for one medium, eg, water, it is the ARA for all pollution from the premises - eg, it is responsible for air and noise emissions and waste management as well as water emissions.

Primary tools for ARAs to control pollution [9.660] Notices are the primary tools used by ARAs, such as local councils, for controlling pollution from unscheduled and unlicensed activities:

• • •

Prevention notices can be issued to prevent and control all forms of pollution - air, water, land, noise and waste. They can be issued where an activity is carried on in an environmentally unsatisfactory manner (see (9.960)). Clean-up notices can be used to prevent or clean up pollution and can require immediate action (see [9.930)). Noise control notices can prohibit activities on premises that emit noise above a specified level (see [9.1010)).

Licences are the primary tool used by the EPA for controlling pollution from licensed activities (see [9.670)). Notices can also be used by the EPA to initiate pollution control in relation to licensed activities, eg clean-up notices. However, for systematic pollution issues, the EPA is more likely to impose or vary a licence condition. Criminal prosecutions are also an important regulatory tool available to ARAs where a breach of the POEO Act occurs (see (9.1720)). Civil proceedings are also an option (see (9.2060)), but notices and licensing variations (combined with penalty notices - see [9.1480)) are generally more convenient, quicker and cheaper methods of regulation for the ARA to utilise.

Scheduled development work [9.680] A licence is required for scheduled development work (s 47(1)) - that is, work on a premises undertaken to enable scheduled activities to be carried on at the premises later (s 47(3)). In other words, a licence is required when the start-up of a new project or the modification of existing processes contemplates any activities listed in Schedule 1. After the construction phase is complete, the licence conditions can be amended so that the licence applies to carrying on the scheduled activity as well. Alternatively, a licence can cover the construction phase (that is, the "scheduled development work") and the carrying on of activities from the outset.

Scheduled activities [9.690] Most scheduled activities involve heavy industrial polluters and certain quarrying and mining activities. Whilst these activities corresponded very closely to the schedule of designated development under the EPA Act (see (5.330)) when the list of scheduled activities was developed in the mid-1990s, over time this has diminished. After a review in 2009 of the activities listed in Schedule 1 the licensing requirements for some "lower risk" activities were removed. These activities no longer require a licence and the ARA will control their impacts through other mechanisms, such as notices (see [9.910)). However, in 2014 the licensing thresholds for some waste activities were reduced. This includes resource recovery, waste processing and waste storage. These activities will now be subject to greater control through licensing and regulation by the EPA.

Integration with the planning legislation

Env ironme nt protection licences [9.670] Environment protection licences are required when works and scheduled act1v1t1es (listed in Schedule 1 of the POEO Act) are undertaken (ss 47 - 49). Most of the activities listed in Schedule 1 are premises-based (Schedule 1, Pt 1) but certain mobile activities that are not premises-based are included, namely transport and mobile processing of waste (Sch 1, Pt 2). A single integrated licence is required for:

• air pollution • water pollution • noise pollution • land pollution

[9.700] Under the POEO Act, a licence relating to a development that requires development consent under Part 4 of the EPA Act must not be granted or varied by the EPA until development consent has been granted by the relevant authority (POEO Act, s 50). The determination of development applications is co-ordinated with the determination of licence applications under the POEO Act. Where a proposal has been declared to be State significant development or State significant infrastructure (see [5.2700) and [5.2750)), an environment protection licence cannot be refused and its terms must be substantially consistent with the consent or approval granted by the Minister under the EPA Act (EPA Act, ss 89K(1)(e)), 115ZH(1)(e)) (see (5.2730] and (5.2760]), although this no longer applies when the licence is reviewed at the end of 5 years (ss 89K(2)(c)), 115ZH(2)(c)). Where a proposal has not been declared to be State significant, it will be dealt with under the integrated development procedure (see [5.370)).

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(9.710]

Practical considerations in granting licences [9.710] The factors the EPA must take into account in deciding whether or not to issue a licence and what conditions to attach are listed in section 45 of the POEO Act. They include the "practical measures" that could be taken to prevent or control pollution and to protect the environment (s 45(d) ). In addition, the PO EA Act provides that the EPA has general responsibility for "ensuring that the best practicable measures are taken for environmental protection " in accordance with legislation (s 7(2)(a)).

The expressions "practical measures" and "practicable measures" indicate that some degree of pollution is recognised as inevitable. The EPA seeks to balance the harmful effects of pollution against the economic and social benefits to the community of the activities causing it, including the economic implications for the polluter who has to comply with the latest pollution control technology. As the NSW Court of Appeal has recognised, the terms of a licence "may reflect a compromise between what is desirable and what is practicable" (Macquarie Generation v Hodgson [2011] NSWCA 424 at [55]).

Cost to industry [9.720] The Land and Environment Court has confirmed that cost to industry is a relevant factor for the EPA to take into account when issuing pollution licences (Brown v Environment Protection Authority [No 2] (1992) 78 LGERA 119). Justice Pearlman held that the adoption of the "best available technology economically achievable" was permitted.

Ecologically sustainable development [9.730] Ecologically sustainable development (ESD) is also a consideration for the EPA (POEO Act, s 45(6)). One of the objectives of the POEO Act is "to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development" (s 3(a)).

The POEO Act does not define how ESD is to be achieved. However, the POEO Act adopts the meaning of ESD contained in s 6(2) of the POEA Act. That provision states that ESD can be achieved through:

• the precautionary principle • inter-generational equity • conservation of biological diversity and ecological integrity • improved valuation and pricing of environmental resources (s 6(2)(a) - (d)).

The definition emphasises that "ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes" (s 6(2)). See Chapter 1, [1.190] for a more detailed discussion of ESD.

Licence conditions [9.740] The POEO Act allows a wide range of conditions to be attached to licences (ss 63, 65 - 76). Licence holders can, for example, be required to:

[9.750]

•

chapter 9 Pollution control and waste disposal

monitor and certify compliance with licensing requirements (s 66) (where such a monitoring condition is imposed the licensee is now required to publish that monitoring data on their website, or if they have no website, the monitoring data must be provided free of charge to any person who requests it: s 66(6); see [9.2090])

• comply with the requirements of mandatory environmental audits (ss 67, 174 - 179; see [9.1580]) • undertake and submit pollution studies and pollution reduction programs to the EPA (s 68) (see [9.750]) • provide financial assurances to guarantee funding of remediation or pollution reduction programs (ss 70, 296 - 307; see [9.1680]) • undertake remediation work in connection with the activities authorised (s 71) • provide information about waste, or regulate its management, transportation or disposal, • • •

or meet post-closure requirements in respect of licensed premises (remediating landfills) (ss 75 - 76) have insurance cover (s 72) implement tradeable emission schemes or other economic measures (ss 69, 293 - 295; see [9.1620]) contribute to the implementation of environmental monitoring programs developed by the EPA to monitor the impact of licensed activities on health and the environment, and pay an environmental monitoring levy where this is required by regulations (ss 69(d), 295Y - 295ZA; see [9.1670]).

These are only examples of conditions that can be attached to a licence (s 65). There is nothing to prevent the EPA from attaching other conditions, such as a requirement to introduce new pollution control equipment or make changes to processes and industrial plant as advances in technology are made. The authority can ordinarily vary a licence at any time, by attaching, amending or omitting conditions (s 58). However, a licence granted in relation to integrated development cannot be amended until the first licence review (see [9.770]) (EPA Act, ss 90A, 93). Similarly, a licence granted in relation to State significant development or State significant infrastructure must be substantially consistent with the consent or approval granted by the Minister under the EPA Act until the first licence review (EPA Act, ss 89K(l)(e)), 115ZH(l)(e); see [5 .2730] and [5.2760]).

If the variation of a licence will authorise a significant increase in the impact of an activity and no previous assessment and public consultation has taken place under the EPA Act in relation to the variation, public notice must be given and submissions invited (POEO Act, s 58(6)).

Pollution reduction programs [9.750] Pollution reduction programs can be required through a licence condition. A pollution reduction program may include "requirements to carry out works or to install plant for the purpose of preventing, controlling, abating or mitigating pollution" (s 68(3)). In practice, the pollution reduction program pathway is commonly used by the EPA and many larger licensees will negotiate a regular five year improvement program. For example in 2006 the EPA negotiated performance improvements for Sydney Water' s sewerage system licences through

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a five year pollution reduction program with an estimated cost of $158 million to 2010. Many other licences include site-specific pollution reduction program conditions for one-off plant upgrades. An inherent tension in negot1at10ns between the authority and licensees over pollution reduction concerns the economic feasibility of a licensee moving towards lower emission levels over a particular period of time. Load-based licensing (see [9.1650]) can help drive this pollution reduction. The authority now has access to information and records on the financial position of particular companies (s 191), but its licensing officers must have sufficient expertise to negotiate realistic and efficient pollution reduction targets in light of this information. There is also the crucial question of the approach to be taken to economically marginal operations that simply cannot afford to implement pollution reduction programs and the challenging global economic conditions which provide further difficulties in financing plant upgrades.

Suspension, revocation and surrender

[9.820)

prohibition against all water pollution (POEO Act, s 120). Licences can however be issued for a non-scheduled activity for the purpose of regulating water pollution (s 43(d)). If such a licence is issued, compliance with the conditions of the licence will provide a defence to the offence of polluting waters (s 122).

EPA discretion [9.790] The EPA, as the ARA, may grant or refuse an application for the issue of a licence (s 55), including a licence for the regulation of water pollution from premises with non-scheduled activities. However, it must give notice and consider any submissions from the applicant before refusing to grant a licence (s 55(2)).

The refusal of a licence effectively removes the defence in section 122 to the criminal offence of polluting water. In refusing a licence, therefore, the authority must be satisfied that the pollution of waters could be reasonably avoided, for example by disposal of effluent on land in a way that would not pollute waters.

[9.760] Licences do not have to be renewed on a periodic basis. Once issued, a licence continues in force unless it is suspended, revoked or surrendered (s 77).

Discharge into sewers

The Minister can suspend or revoke a licence on conviction of a tier 1 offence or those tier 2 offences that carry a maximum penalty of at least $1,000,000 for corporations or $250,000 for individuals (s 82; see [9.1100] for discussion of the various tiers of offences). The Land and Environment Court can suspend a licence in civil proceedings taken to remedy or restrain a breach or threatened breach of the POEO Act or regulations (s 252(7); see also s 253), or where an enforceable undertaking has been breached (s 253A(4)(d); see [9.2060] in relation to civil proceedings and [9.1970] in relation to enforceable undertakings).

Access to sewers

The EPA has broad powers to suspend or revoke licences at any stage after taking into account the considerations listed in section 45 of the POEO Act (ss 79, 81). A licence may be suspended for a specified period, or revoked, for a number of specified reasons, including if:

• any of the licence conditions are contravened

• •

the licence has been obtained improperly the activities have been completed (s 79).

It is an offence to operate when a licence is suspended (see ss 4 7 - 49, 77). In Environment Protection Authority v Hogan [2008] NSWLEC 125, the EPA prosecuted a manager of a company who continued to unlawfully receive waste after the company's licence was suspended.

Review of licences [9.770] The EPA is required to review each licence at least once every five years. Public notice must be given of the review (s 78; see [9.2010]).

chapter 9 Pollution control and waste disposal

[9.800] In practice, large quantities of industrial as well as domestic waste water are not sent directly into natural waters covered by the POEO Act but are initially discharged into the sewers, with the approval of the Sydney Water Corporation (operating under s 12(1)(6) of the Sydney Water Act 1994 (NSW)), and the Hunter Water Corporation (operating in accordance with the terms of a licence issued under s 12(1) of the Hunter Water Act 1991 (NSW)). The area of operations for these bodies includes the whole of metropolitan Sydney, the Illawarra, the Blue Mountains and Newcastle (Sydney Water Act 1994, s 10; Hunter Water Act 1991, s 16).

Access to sewers in some areas outside the Sydney and Hunter regions (for example Cobar, Gosford, Wyong) is regulated under the Water Management Act 2000 (NSW) (s 286 and Schedule 3).

Local councils [9.810] In other parts of the State, trade waste discharges are managed by local councils. Councils can grant an approval to discharge trade waste into their sewers (Local Government Act 1993 (NSW), s 68 (Table, Pt C, item 4)). Any application for such an approval must contain the information in Table 1 of the NSW government guidelines (Local Government (General) Regulation 2005 (NSW), ell 3, 25). The 2007 Best Practice Management of Water Supply and Sewerage: Guidelines set outcomes for trade waste management by water supply authorities. The guidelines are supported by the 2009 Model Policy for Liquid Trade Waste Regulation. Water supply authorities were required to develop trade waste policies which comply with the model policy by June 2011.

A council may impose an annual charge for waste management services (Local Government Act 1993, s 501).

Water pollution

Supervisory licences

[9.780] Some activities that may cause water pollution (eg, aquaculture) are listed on Schedule 1 to the POEO Act and therefore require a licence. In addition, however, there is a blanket

[9.820] Sydney Water, Hunter Water and other water supply authorities are themselves regulated by the EPA, and their water pollution control plants, through which sewage is passed

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for varying degrees of treatment before discharge into inland or ocean waters, must be licensed in accordance with the provisions of the POEO Act. In practice, sewage is given a much higher level of treatment when it is to be discharged into inland waters than when it is to be discharged by ocean outfall.

EPA practice [9.830] The practice of the EPA is to direct industry to approach Sydney Water to discharge trade waste into its sewers, rather than to allow discharges directly into inland or ocean waters under a licence issued by the authority. Sydney Water therefore plays a significant role in water pollution control. The EPA has the power to direct it to continue to provide this service should it ever consider withdrawing cooperation (POEAAct s 12; see [9.1690]).

Currently Hunter Water and Sydney Water administer the major trade waste schemes in NSW. These schemes require that approval be obtained for all discharges other than from normal domestic premises. The Sydney Water Act 1994 requires Sydney Water to protect the environment by conducting its operations in compliance with the principles of ecologically sustainable development (s 21(1)(6)).

Discharges under contract

[9.880)

• •

•

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volume discharge limits management requirements for certain pollutants monitoring, sampling and metering requirements (see Sydney Water, Getting Connected: How to Connect to Sydney Water Services and What to do Once you Are (2013), p 47).

Fees and charges apply to the discharge of wastewater, except for deemed process~s. Information about trade wastewater requirements can be found on the Sydney Water website http://www.sydneywater.com.au/SW/your-business/index.htm.

Trade waste breaches [9.860] Where there is a breach of an agreement or permit, the def_ault notice_ procedure given in the agreement or permit documents will apply. Customers are required to notify Sydney Water m circumstances where their discharge limits are exceeded or the discharge may harm the environment or Sydney Water staff, services or assets. Non-compliances can result in a number of actions being taken by Sydney Water including suspension or review of the agreement, suspension or restrictions on discharges, and increased fees. Offenders may be prosecuted under the Sydney Water Act 1994; alternatively, a prosecution for pollution of waters could be brought under section 120 of the POEO Act. A discharge of pollutants into a sewer falls within the definition of water pollution as amplified in the Protection of the Environment Operations Act (General) Regulation 2009 (cl 56 and Schedule 5).

[9.840] It is an offence to discharge any substance into a work owned by Sydney Water without its written agreement (Sydney Water Act 1994, s 49(1)). The Act allows discharges in accordance with a customer contract, or other contract or arrangement with Sydney Water (Sydney Water Act 1994, s 49(2)). Under its licences issued by the EPA, Sydney Water is subject to conditions regarding discharges from its licensed sewage treatment systems which also makes it necessary for Sydney Water to regulate discharges to the sewer via trade waste agreements with customers.

However the main incentive for cleaner production from industrial customers is the Sydney Water pricing policy. Industrial trade waste agreement holders who can reduce the volume and concentration of pollutant discharges can reduce their trade waste fees.

An owner of land connected to a sewer is taken to have entered into a customer contract on the terms and conditions set out in the relevant operating licence for the provision of sewerage services (s 55). This means that trade waste cannot be discharged into any Sydney Water sewers or stormwater channels except in accordance with an agreement or permit issued by Sydney Water. This applies to both direct and indirect discharges, so that trade wastes that wash into a drain are covered.

[9.870] There is 110 blanket prohibition against air or noise pollution, as there is wit~ water pollution. For criminal offences dealing with air and noise pollut'.on, see [9.1240] (air) and [9.1320] (noise). There is a blanket prohibition against land pollut10n (s 142~; see [9.138~]), subject to the defence of polluting land in accordance with a licence and certam other spec1f1ed defences (ss 142B - 142E). However, although the EPA has power to issue a licenc~ for water pollution for non-scheduled activities in order to provide a defe~ce to th~ water pollution offe~ce (see ss 43(d), 122; [9.1210]), there is no equivalent power to issue a licence ~or land pollut10n arising from non-scheduled activities. Polluters would need to rely on the spec1f1C land pollunon defences, such as those related to unlicensed landfill sites, pesticides and fernhsers, or authonty

Trade waste agreements (9.850] Businesses that discharge trade wastewater must enter into an additional services agreement with Sydney Water containing approval to discharge trade wastewater. Sydney Water differentiates between commercial and industrial trade wastewater. Permits for commercial trade waste cover businesses such as restaurants, butchers, bakeries, service stations, mechanical workshops, laundromats, shopping centres and municipal swimming pools. Some commercial customers have approval as a "deemed process", provided that they have certain pre-treatment and other requirements in place. Examples include dental surgeries, dry cleaners and hairdressers.

Industrial customers enter into more detailed trade waste agreements. Permits and agreements will specify matters such as:

• any required pre-treatment • acceptance standards (quality) that must be met before discharge

Air, land and noise pollution

conferred by the regulations (ss 142B - 142E).

Licensing scheduled activities [9.880] If there is any air, land or noise pollution from carrying out a scheduled act~vity or scheduled development work, conditions regulating such emissions can be mcorporated mto the environment protection licence.

A direct obligation to obtain a licence is placed on occupiers of premises throughout NSW on which scheduled development work or scheduled activities (see [9.670]) are being carried out. If they do not, the person responsible is automatically guilty of a criminal offence, regardless of whether or not activities on the premises are actually causing pollution (POEO Act, ss 4 7 - 49).

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Odours cannot be emitted from scheduled activities unless permitted under a specific licence condition (s 129). For example, in Environment Protection Authority v Shoalhaven Starches [2006] NSWLEC 685 the defendant was fined $125,000 for offensive odours coming from its wastewater storage ponds and was required to undertake an environmental audit to prevent and minimise odours at the premises. Noise, land or air pollution caused by a non-scheduled activity can be regulated by the local council through notices and directions (see below). The legislation relating to the management of contaminated land may also be relevant where land has been polluted (see [9.2670]) .

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[9.930]

3.

prohibition notices (s 90) .

Other notices that can be issued under the POEO Act are:

• compliance cost notices (ss 104, 267B; see [9.980]) • notices for breach of licensing requirements (s 86; see [9.1000]) • noise control notices (s 264; see [9.1010]) • notices to repair motor vehicles (s 161; see [9.1020]) • smoke abatement notices (ss 135A- 135D; see [9.1030]). Notices are issued by the ARA except for:

Ambient standards Woteiwoy classifications [9.890] When the Clean Waters Act 1970, a predecessor of the POEO Act, was enacted in 1970, the intention was to classify the waters of NSW into a number of categories (eg, "specially protected waters", "controlled waters") based on the uses to which they were to be put. The aim was to move some way towards setting ambient water standards. In practice, this process proved too time consuming and a drain on limited resources.

Changes made in 2006 replaced the classified waters scheme with a general requirement that environmental values of water, as set out in the Australian and New Zealand Guidelines for Fresh and Marine Water Quality 2000 be considered in licensing functions or when issuing prevention notices (POEO Act, ss 45(fl)(i), 96(3A)).

• prohibition notices, which can only be issued by the Minister, • motor vehicle notices which are issued by EPA authorised officers, and • smoke abatement notices which are issued by authorised officers of a local authority that is the ARA (see [9.1030]). An administration fee ($506 from 1 July 2015, increased annually) is payable by the recipient of a clean-up, prevention or noise control notice (ss 94(2), 100(2), 267 A(2); POEO (General) Reg, cl 99).

Notices and critical infrastructure projects [9.920] Clean-up notices, prevention notices and prohibition notices cannot be issued so as to prevent or interfere with the carrying out of critical State significant infrastructure approved under Part 5.1 of the EPA Act (EPA Act, s 115ZG(3)(d)) (see [5.2770]).

Cleon-up notices PEPorNEPM [9.900] Standards can be specified in a protection of the environment policy (PEP) (see [9.590]) since a PEP can specify environment protection goals, standards, guidelines or protocols (s 11). Thus a PEP could be used to specify ambient air and water standards. A national environment protection measure (NEPM) was made in 1998 for ambient air quality. However, this has been implemented administratively in NSW (see the EPA's National Environment Protection Measure for Ambient Air Quality: Air Monitoring Plan for NSW (2001)), rather than through a PEP (s 11(3)).

Regulation through notices

[9.910] The purpose of clean-up notices is to provide a quick response to pollution incidents. The ARA has the power to issue a clean-up notice to either the owner or occupier of premises from which it is reasonably suspected a pollution incident has occurred, or alternatively to the person reasonably suspected of causing a "pollution incident" (s 91(1)). (The POEO Act was amended so as' to include an option to issue a clean-up notice to an owner of the premises effective from 1 January 2015). In an emergency, the notice can be given by the EPA even if it is not the ARA (s 91 (2) ). The EPA can also issue clean-up notices to a public authority (s 92(1)) or a public authority can act voluntarily (s 92(2)). The term "pollution incident" extends to actual or potential leaks, spills or escapes, or the deposit of a substance, which results or is likely to result in pollution. "Pollution" is defined to mean water, air, noise or land pollution. "Pollution incident" includes unlawful depositing of waste, but does not cover incidents involving only the emission of noise (POEO Act Dictionary). "Clean-up action" is broadly defined to include action to:

Types of notice [9.910] Environment protection notices are major administrative tools for ensuring compliance with the POEO Act. There are three kinds: 1.

clean-up notices

2.

prevention notices

• prevent, minimise, remove, disperse, destroy or mitigate pollution • ascertain the nature and extent of the incident or pollution and • prepare and carry out a remedial plan of action (POEO Act Dictionary). In Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 10; [2008] NSWCA 278 the NSW Court of Appeal held that there must be "a reasonable degree of

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proportional relationship between the pollution incidents which are reasonably suspected as having occurred or occurring and the clean-up action required by the notice" (Allsop P at [159] (Beazley and McColl JJA agreeing)). However, this does not require a pedantic or limited approach to be taken to action that can be required under a clean-up notice (at [159]). In the circumstances of that case a clean-up notice which had the effect of closing the recipient's business did not constitute a reasonably proportionate response to the pollution incidents (at [159]). Clean-up notices can be given orally, but cease to have effect unless confirmed in writing within 72 hours (s 93). The recipient of a notice has no right of merit appeal, and it is an offence not to comply without reasonable excuse (s 91(5)). The maximum penalty for corporations is $1 million and a daily penalty of $120,000 for continuing offences. For individuals the maximum penalty is $250,000 and a daily penalty of $60,000 for continuing offences (s 91(5)). In Cessnock City Council v Quintaz Pty Ltd [2010] NSWLEC 3 the defendant company was prosecuted for failing to comply with a clean-up notice issued by the council regarding stockpiles of building demolition waste that were on the company's property. The actual and potential harm was minimal. However, Justice Pepper did take into account the continuing nature of the offence and the company was fined $112,500.

(9.960]

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Polluter pays [9.950] In keeping with the polluter-pays principle, a person who has complied with the clean-up notice despite not having caused the pollution may recover the cost of complying with the notice from the polluter (s 91(4)).

Prevention notices [9.960] Prevention notices are intended to address more systemic pollution problems. Rather than waiting for pollution to occur, they allow a proactive stance to be taken to preventing pollution. Where there are reasonable grounds to believe that an activity is being conducted in an "environmentally unsatisfactory manner", prevention notices can be issued by the ARA to either the occupier of premises or the person carrying on the activity (s 96(1)). The notice can require the person to take specified action to ensure the activity is conducted in an environmentally satisfactory manner (s 96(2)) . An appeal to the Land and Environment Court against a prevention notice can be made by the notice recipient within 21 days (s 289). The phrase "environmentally unsatisfactory manner" encompasses:

Procedural fa irness in issuing clean-up notices

•

[9.940] An ARA has a duty to accord procedural fairness before issuing a clean-up notice. The duty extends to identifying the person reasonably suspected of causing the pollution (or presumably the person that is the owner or occupier of premises and whether the pollution occurred from those premises wheres 91(1)(a) is relied on), whether the notice should be issued and its terms (Liverpool City Council v Cauchi (2005) 145 LGERA 1; [2005] NSWLEC 675 at [36]). The content of the duty varies depending on the circumstances and may be confined in urgent situations (Liverpool City Council v Cauchi (2005) 145 LGERA 1; [2005] NSWLEC 675 at [51]; see also Precision Products (NSW) Pty Ltd v Hawkesbury City Council [2008] NSWCA 278 at [156]) . Factors that the courts have considered in determining the content of the duty include how serious the pollution incident is, how urgent any perceived threats are, the extent of the impact on the recipient's business, and whether the measures required by the notice are straightforward simple measures or complicated (see, for example, Precision Products (NSW) Pty Ltd v Hawkesbury City Council [2008] NSWCA 278; Liverpool City Council v Cauchi (2005) 145 LGERA 1; [2005] NSWLEC 675; Ryding v Kempsey Shire Council [2008] NSWLEC 306; Lismore City Council v Ihalainen [2013] NSWLEC 149). For example, in non-urgent situations which require costly or complicated measures procedural fairness may, for example, be accorded by providing the proposed recipient with a draft of the notice and giving them an opportunity to comment within a reasonable period of time.

• activities that cause, or are likely to cause, a pollution incident

Failure to accord procedural fairness may provide the person to whom the notice was issued with a defence of reasonable excuse under s 91(5) (Liverpool City Council v Cauchi (2005) 145 LGERA 1; [2005] NSWLEC 675). It is therefore important that the ARA comply with the duty to provide procedural fairness otherwise the notice may be held invalid, and any prosecution for failure to comply with the notice may fail.

• •

activities carried on in contravention of the Act, regulations, licence conditions or exemptions

activities that are not carried on by such practicable means as may be necessary to prevent, control or minimise pollution, noise emissions or waste generation activities not carried on in accordance with good environmental practice (s 95).

The types of activities which can be the subject of a prevention notice are very broad. In Udy v Hornsby Shire Council [2007] NSWLEC 242 the recipient of a prevention notice requiring the removal of fill argued that the notice powers did not apply to residential land or to "one-off" type activities which have been completed. The Court rejected both of these arguments. An objective examination of the performance of the premises is required, not just a mere suspicion (Cantarella Bros Pty Ltd v City of Ryde Council [2003] NSWLEC 388 at [17]). Care needs to be taken to correctly identify the occupier of the premises. In Thaina Town v City of Sydney [2006] NSWLEC 624 a restaurant operator successfully argued that it was not the operator of an exhaust system which extended through the common property to a rooftop plant room of an apartment block. Actions required by the notice may include installing, repairing, altering, replacing, maintaining or operating plant, ceasing to use the plant or altering the way it is used or reviewing the way an activity is carried out (s 96(3)). In Cobreloa Sporting Club & Ethnical Club Ltd v Fairfield City Council [2007] NSWLEC 54 the Council successfully used a prevention notice to control noise from a club which did not require any development consent to operate as it had existing use rights (see [5.420]).

If the recipient does not comply with the prevention notice, the ARA may effect the necessary improvements and recover the costs incurred (ss 98, 104(4)). Failure to comply with the requirements of a prevention notice is also an offence (s 97). In Oberon Council v Australian

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Game Meats Ltd [2002] NSWLEC 96 an abattoir operator failed to conduct an environmental audit and to prepare waste management plans as required by a prevention notice issued by the council. The Land and Environment Court regarded the failure to comply with the notice as a serious offence, and despite late provision of plans to the council (on the day before the hearing), the company w~s fined $27,000.

Prohibition notices [9.970] The Minister has the power to issue prohibition notices directing either the occupier of premises or the person carrying on an activity, or both, to cease carrying on the activity, or part of it, for a specified period (POEO Act, s 101(2)). This action can only be taken where the EPA has reported an emission or discharge of pollutants from the premises where the activity is carried on, which is (s 101(1)):

• • •

causing or likely to cause harm to the environment likely to be injurious to public health, or

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Hornsby City Council's response to a liquid waste spill by a metal dye caster in May 2004 illustrates how councils can use notices and fines. A holding tank for waste acid collapsed on premises, causing liquid to flow into a degraded creek. The council responded with a clean-up notice to the occupier (first issued orally, then confirmed in writing), requiring it to remove the acid from where it had pooled on the premises and in the creek. In the meantime the council provided sand, labour and plant to halt the flow of the acid and clean up the road leading to the creek. It then issued a prevention notice requiring the dye caster to:

• install appropriate bunding around its liquid storages • prepare an environmental emergency action plan and an inventory and site plan indicating the nature and location of materials stored onsite • provide environmental response training for its employees.

The council recovered its clean-up costs through a compliance cost notice. As it assessed the actual environmental harm caused to the dry, degraded creek bed to be minimal, it issued a penalty notice for water pollution, rather than initiating a prosecution.

causing or likely to cause discomfort or inconvenience to anyone not associated with the management or operation of the activity.

The notice recipient has no right of appeal against a prohibition notice, and failure to comply, without reasonable excuse, is an offence (s 102). If the recipient does not comply with the notice, the EPA may take action to achieve compliance (s 103).

Compliance cost notices Recovering costs [9.980] The regulatory authority that issues an environment protection notice or noise control notice (see [9.1010]) may generally issue a compliance cost notice to recover:

• •

(9.1020)

the reasonable costs incurred in taking the action required under the notice where it has not been complied with costs reasonably incurred in connection with monitoring action under the notice and ensuring that the notice is complied with (ss 104, 267B).

To secure payment, compliance costs notices issued in relation to environment protection notices may be registered as a charge against any land owned by a person to whom a compliance cost notice was given (ss 106, 107(2)). For example, a builder of home units in Campsie stockpiled many tonnes of demolition materials on adjacent land owned by Canterbury City Council. Because of concerns about the solvency and capacity of the builder, the council engaged a contractor to clean up the materials and issued a compliance cost notice to the builder to recover its costs. It registered the compliance cost notice as a charge on the land title to one of the home units and, when the property was sold, was reimbursed its costs of $31,000.

Other notices under the POEO Act Notice of a breach of licensing requirements [9.1000] When work has been conducted by an occupier without the required environment protection licence, the EPA may issue a notice requiring the occupier of the premises to: remove the work, or

• •

restore the premises to their previous state (s 86(1)).

Noise control notices [9.101 O] The ARA may issue a notice prohibiting an occupier of premises, or the person carrying on an activity, from using or operating articles or from carrying on the activity where noise is emitted in excess of a specified level when measured at any specified point (whether within or outside the premises) (s 264). This can also extend to circumstances where an activity or the use of an article has yet to occur, but is proposed. The prohibition may apply to certain days or times. There is a right of appeal against a noise control notice (s 267).

Breaching the requirements of a noise control notice is not automatically an offence. It must also be established that noise was emitted that "was able to be detected or perceived outside those premises without the aid of an instrument, machine or device" (s 265(2)). The complex technical issues that can arise in the specification of noise limits is illustrated in . Sumar Produce Pty Ltd v Griffith City Council [2000] NSWLEC 72; [2000] NSWLEC 104, which concerned a noise control notice to limit noise from the operation of a frost control fan on an orchard near homes.

Pollution control by local councils

Motor vehicle emissions

[9.990] Notices and on-the-spot fines (see the discussion of penalty notices at [9.1480]) are the enforcement tools most frequently used by local councils. Some metropolitan councils issue many notices each month.

[9.1020] An authorised EPA o_ffi_f~r who reasonably suspects that a motor vehicle emits excessive impurities into the air may, by written notice, direct the owner to service or repair the vehicle or install, restore or adjust an anti-pollution device (s 161).

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Smoke abatement notices: smoke from residences (9.1030] If smoke can be seen from a residential chimney over a continuous period of not less

than 10 minutes, including a period of at least 30 seconds when the smoke can be seen at least 10m from the chimney, a local council authorised officer can issue a smoke abatement notice to the occupier. The occupier must not allow such excessive smoke to be emitted for 6 months beginning 21 days after the notice (s 135B).

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Effect of the direction (9.1080] Once a noise abatement direction has been issued, the offensive noise must cease and not start up again during the next 28 days, or, unless there is a reasonable excuse, an offence is committed (s 277).

Power to seize equipment and enter premises

Notices and licences compared

[9.1090] The police can seize equipment being used to contravene a noise abatement direction

Non-licensed activities

However, the powers of enforcement bodies in relation to residential premises are limited. Without the occupier's consent, only the police may enter dwelling houses to give a direction or investigate whether there has been a breach of a direction, and then only after obtaining a search warrant. A warrant can be issued over the phone (s 280).

[9.1040] Provisions allowing councils and the EPA to regulate polluting act1V1t1es through

notices are particularly important in relation to non-licensed activities. Because prevention notices can be issued whenever an activity is being conducted in an environmentally unsatisfactory manner, councils cm use them extensively as a trigger for achieving environmental improvement. They can be very detailed, and can extend to setting environmental operation conditions for a non-licensed activity similar to the conditions attached to a licence for a licensed activity.

Licensed activities (9.1050] If preventative action needs to be taken in respect of a licensed activity, the EPA generally amends the licence conditions to require the action to be taken, rather than issuing a prevention notice. For example, a variation could take the form of a new condition requiring the staged upgrade of air emission control equipment. This is effected by serving notice of the variation on the licensee (POEO Act, s 58).

Noise abatement directions

(s 282).

The EPA website has a brochure Dealing with Neighbourhood Noise (April 2013).

Criminal offences [9.1100] The POEO Act classifies criminal offences into three tiers. Tier 1 comprises the most

serious environmental offences, tier 2 comprises mid-range offences and tier 3 provides for "on-the-spot" infringement notices for dealing with relatively minor environmental law enforcement issues. The relevant factors in classifying offences are:

• the "mental" element with which the offence was committed • the seriousness of the harm caused.

[9.1060] Noise abatement directions can be issued to the occupier of any premises from which

"offensive noise" has been emitted during the previous seven days, as well as to any person responsible for making the noise (POEO Act, s 276). EPA authorised officers can issue noise abatement directions which affect the activities of:

• government or public authorities • any scheduled activity or work for which a licence is held (ss 275 - 6, 278).

Police or authorised officers can issue directions for other activities (s 275(a)). Roads and Maritime Services officers and employees can issue notices in relation to vessels in navigable waters (s 275(6)).

What is offensive noise? (9.1070] Offensive noise is defined in broad terms. It is sufficient if the noise is "likely to be harmful to" a person outside the premises or to interfere unreasonably with their comfort or repose (POEO Act, Dictionary). Everything depends on the f_a_cts of each case. What would be offensive noise at night may not be so during the day. What would be offensive noise in a residential area where there is a low level of background noise may not be so in an industrial area.

Tier l offences [9.1110] Part 5.2 of the POEO Act provides a set of serious offences which result in harm or likely harm to the environment - the tier 1 offences. These offences may arise in relation to land, air and water pollution, but unlike tier 2 offences are not drafted so as to relate to a specific receiving environment (see the discussion of environmental harm at [9 .1140] ). They require proof of mens rea - either wilfulness or negligence. These offences are punishable with fines of up to $5 million (wilfulness) or $2 million (negligence) when committed by a corporation. For individuals, fines of up to $1 million and/or imprisonment of up to seven years (wilfulness) or $500,000 and/or four years imprisonment (negligence) can be imposed (s 119).

There are two operative tier 1 offences which are contained in ss 115 and 116 of the POEO Act (see below). While s 117 of the POEO Act contains offences relating to the emission of czone depleting substances in contravention of the regulations made under the Ozone Protection Act 1989 (NSW), as there are no regulations under that Act, s 117 is currently inoperative (see [9.500]). The tier 1 offences involve wilfully or negligently doing the following without lawful authority and in a way that harms or is likely to harm the environment:

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disposing of waste (s 115(1)(a)) or causing any substance to leak, spill or escape (s 116(1)(a)).

The tier 1 offences also apply to other persons associated with the waste or substance that resulted in the offence. In relation to the tier 1 waste disposal offence this includes the owner of the waste, or the owner immediately prior to its disposal (ss 115(1)(6), s 115(3)). In relation to leaks, spills and escapes of substances the tier 1 offences also include:

• • • •

owning a substance that someone has caused to leak, spill or escape (s 116(1)(6)) being in possession of a substance and wilfully or negligently causing, or contributing in a material respect to, the conditions that give rise to the commission of the offence (s 116(2)(a)) being the owner of a container and wilfully or negligently causing, or contributing in a material respect to the conditions which give rise to the commission of the offence (s 116(2)(6)) being the owner or occupier of land on which a substance (including a substance in a container) is located and wilfully or negligently causing, or contributing in a material respect to the conditions which give rise to the commission of the offence (s 116(2)(c) - (d)), see the discussion of Environment Protection Authority v Warringah Golf Club [2003] NSWLEC 140 below).

In Environment Protection Authority v Warringah Golf Club [2003] NSWLEC 140, the golf club, as occupier of land from which pesticide escaped, was held to have negligently contributed to the escape by failing to install bunding around stormwater pits or the compound in which chemicals were mixed, and by failing to write and implement policies or guidelines for the handling of chemicals.

What is waste? [9.1120] "Waste" is broadly defined in the POEO Act Dictionary. It includes any discarded, unwanted or surplus or abandoned substance, whether in solid, liquid or gaseous form, so that it covers significant air pollution as well as other forms of pollution. See also [9.2500] for a discussion of the meaning of "waste" in relation to tier 2 waste offences.

What is lawful authority? (9.1130] Lawful authority is a defence to the tier 1 offences (ss 115(2), 116(4 )). Lawful authority can be constituted by acting in accordance with the conditions of a licence issued by the EPA, or in accordance with the conditions of a development consent issued under the EPA Act. In many situations, both will be required to prove lawful authority (see also illegal dumping at [9.2500]).

What is harm to the environment? [9.1140] Definitions of "environment" and "harm" are contained in the legislation to make it

easier to prove "harm to the environment". These terms were not defined in the legislation that preceded the POEO Act in its original form, and this turned out to be a significant obstacle to prosecutions (State Pollution Control Commission v Caltex Refining Pty Ltd [1990] NSWLEC 89). "Harm" is defined expansively in the POEO Act to include "any direct or indirect alteration of the environment that has the effect of degrading the environment", and any act or omission that results in water, air, noise or land pollution, which are also broadly defined (POEO Act,

[9.1160]

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Dictionary). Water pollution, for example, includes anything which involves placing or introducing matter into waters which produces a change in the physical, chemical or biological condition of the waters. Air pollution is defined as meaning emitting any air impurity into the air (POEO Act, Dictionary). The tier 1 offences do not focus on any specific "receiving" environment but on the environment in general. The legislation is very wide-ranging, and makes it clear that the "environment" harmed can consist not only of land, waters and the atmosphere, but also any organic or inorganic matter and any living organism or interacting natural ecosystems, as well as human-made or modified structures (POEO Act, Dictionary).

What does wilfully or negligently mean? [9.1150] One important question is the degree of fault that the prosecution must prove. The

legislation makes it clear that offences can be committed not only by those who act deliberately ("wilfully"), but also through negligence - that is, through falling short of the standards of awareness and behaviour that a reasonable person would have exhibited (see [2.590]). What this means is that defendants cannot hide behind the fact that they are not properly qualified to make an assessment of the likelihood of escape or of harm to the environment, or that they have not made adequate investigations. However, the legislation does not specify whether the degree of fault that must be proved is the high degree of negligence referred to as "gross" or "criminal negligence" or a lesser degree.

Case study: Negligence [9.1160] The decision of the Court of Criminal Appeal in Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 provides some clarification as to the degree of negligence required to be proved in tier 1 offences. Ampol was the owner and lessor of a fuel depot containing underground tanks that were used for storing petroleum products. While filling a tank, an employee of the lessee of the depot, Brir Pty Ltd, allowed it to overflow into the stormwater system, polluting a nearby creek. It was alleged that Ampol was negligent in not providing a draining, bunding and holding or shut-off system or tank alarm to ensure the containment of such a spillage. The system actually used was a kind commonly found in the petroleum industry, and it complied with all regulatory instruments and EPA requirements. Ampol had also provided the lessee with a manual explaining the correct operational procedures. Ampol was charged with a tier 1 offence, in that, as the owner of land on which the substance or container was located at the time of the escape, it "negligently, in a material respect, caused or contributed to the conditions which gave rise to the commission of the offence" (s 116(2)(c)). Justice Pearlman referred the case to the Court of Criminal Appeal for clarification of the standard of negligence required for conviction. The court held that when the word "negligence" appears in a criminal statute, its meaning is to be determined through standard statutory construction; that is, what is meant by the term as it appears in the statute. Back in the Land and Environment Court, Justice Pearlman, in convicting Ampol, adopted a measure of negligence based on the obligations imposed by the statute to

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avoid or minimise environmental harm (Environment Protection Authority v Ampol Ltd (1994) 82 LGERA 247). Her Honour pointed out that the risk of harm to the environment was foreseeable, and relevant pollution prevention equipment such as bunding, a shut-off valve and a high level alarm were not used. Consequently, the fact that Ampol had carried out and complied with relevant industry codes, standards and practices did not absolve it from liability; rather, the defendant had "a general obligation to avoid or minimise environmental harm" (at 255). Ampol's conduct did not amount to "gross negligence" in the criminal sense. Even though Ampol had complied with standard industry practice, it was still found to be negligent. Ampol's appeal to the Court of Criminal Appeal against the conviction was dismissed (Ampol Ltd v Environment Protection Authority, unreported, NSWCCA, 26 October 1995). Special leave to appeal to the High Court was refused (Ampol Ltd v Environment Protection Authority, unreported, High Court of Australia, 15 June 1996).

Case study: Wilful disposal of waste [9.1170] In Environment Protection Authority v N (1992) 26 NSWLR 352; 76 LGRA 114, the Court of Criminal Appeal held that on a charge of wilfully disposing of waste "in a manner which harms or is likely to harm the environment", the prosecution had to prove not only that the defendant deliberately disposed of the waste, but also that the defendant intended harm to the environment, or at least was aware or wilfully blind to the fact that the disposal of the waste would harm or was likely to harm the environment. It was not sufficient simply to prove that harm to the environment had actually occurred or was likely to occur. At the same time, the court conceded that the alternative charge of negligently disposing of waste would only require proof that the risk of such harm was foreseeable to a reasonable person in the defendant's position (at 120).

In other words, the EPA can avoid the more stringent proof requirements stemming from a charge of wilful disposal by bringing a charge of negligent disposal (State Pollution Control Commission v NSW Sugar Milling Co-operative Ltd (1991) 73 LGRA86). Apart from this, since the facts in Environment Protection Authority v N (1992) 76 LGRA 114 occurred, the definition of "harm to the environment" has been watered down (see (9.1140]), making it easier to prove that the defendant did in fact appreciate the risk of such harm.

The due diligence defence to tier 1 offences [9.1180] There is a special defence to tier 1 offences. For the defence to succeed, the defendant must prove that the commission of the offence was due to causes over which they had no control, and they took "reasonable precautions and exercised due diligence" to prevent it occurring (s 118).

(9.1200]

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For most of the tier 1 offences there is no room for the successful operation of this defence because, before it becomes relevant, the prosecution must prove wilful or negligent acts within the offence definitions. If the prosecution has succeeded in convincing the court of negligence beyond a reasonable doubt, it will ordinarily be logically impossible to show that the defendant had no control over the causes of the offence, or took reasonable precautions and exercised due diligence (compare State Pollution Control Commission v NSW Sugar Milling Co-operative Ltd (1991) 73 LGRA 86 at 103). The exceptions to this are offences alleged to have been committed by the owner of waste or an escaping substance where the legislation does not specifically require the prosecution to prove fault on the part of the owner. Here, it appears that the prosecution only has to prove, for example, that someone wilfully or negligently caused the escape; then it is up to the owner of the substance to resort to the special defence.

Case study: Defence to tier 1 offences [9.1190] In State Pollution Control Commission v Blue Mountains City Council

(1991) 72 LGRA 345, the council contracted out the management of its tip to an independent contractor, an employee of whom deliberately breached the wall of a leachate dam. Justice Stein held that the council had proved an earlier version of the special defence; that is, that the offence was due to causes over which it had no control and against which it was impracticable to take evasive action. He acknowledged that the defence contemplated a broad approach that involved going beyond the council's participation in the precise event and included the terms and administration of the management agreement with the contractor. He concluded, however, that there had been no failure of supervision by the council. The operator was essentially embarking "on a venture of his own making and volition - a frolic of his own". In these circumstances, it would have been impracticable to prevent the incident. With the change in wording since this decision, the defence requires the defendant to establish not only that the offence was due to causes over which the defendant had no control, but also the taking of reasonable precautions and due diligence (s 118). This makes the defence more difficult to establish.

Tier 2 offences [9.1200] Tier 2 offences are all offences under the POEO Act and regulations made under the Act that are not tier 1 offences (s 114(2)). However, where tier 2 offences are dealt with by way of penalty notice, they are classified as tier 3 offences (s 114(3)) (see [9.1480]).

There are a number of different tier 2 offences contained in the POEO Act and regulations relating to matters such water, air, noise or land pollution, waste, duty to notify pollution incidents and offences relating to the exercise of investigation powers. Some of the offences are discussed in more detail in the following sections. Waste offences are discussed at [9.2490]. Tier 2 offences also include:

• carrying out scheduled development work or scheduled activities without the appropriate environment protection licence (ss 47, 48, 49)

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breaching the conditions of a licence (s 64) failing to comply with a clean-up, prevention or prohibition notice (ss 91(5), 97, 102).

The maximum penalties in the POEO Act for offences relating to water, noise and land pollution and the more serious air pollution offences when they are dealt with as tier 2 offences are $1 million for corporations and $250,000 for individuals (ss 123, 132, 141, 142A). The tier 2 waste offences relating to the unlawful transportation or use of land as a waste facility also carry maximum penalties of $1 million for corporations and $250,000 for individuals (ss 143, 144). Amendments made to the POEO Act which took effect from 1 October 2013 made imprisonment available as a sentencing option for the first time for some tier 2 waste offences (see [9.2520]-[9.2530]). This includes allowing repeat waste offenders to be imprisoned for up to two years and extends to situations where waters have been polluted by waste or land pollution has occurred (s 144AB). Substantial daily penalties can be imposed for a continuing offence.

Water pollution [9.121 0] Under the POEO Act, it is a tier 2 offence to pollute waters, which includes to cause or permit any water pollution (s 120). However, it will be a defence if a licence is held and the conditions of the licence were not contravened (s 122). The POEO Act takes a very broad view of what will amount to water pollution, which includes anything producing a change in the physical, chemical or biological condition of waters (POEO Act Dictionary). In Environment Protection Authority v Pancorp Australia Pty Ltd [2002] NSWLEC 38 the defendant was fined a total of $32,000 for polluting three farm dams as a result of pesticide spray drift from nearby weed control treatment occurring along a rail corridor.

To be guilty of an offence, the unlicensed polluter does not have to actually discharge the pollutant directly into the waters. It is sufficient for it to be put in a position from which it ends up in waters or is likely to do so: POEO Act, Dictionary (definition of water pollution, par (d)); see also Mathews v Gou/burn Wool Processors Pty Ltd (1987) 10 NSWLR 419; State Pollution Control Commission v NSW Sugar Milling Co-operative Ltd (1991) 73 LGRA 86. Pollution is regarded as "likely" to end up in waters if there is a real chance or possibility that this will occur. It does not have to be "more probable than not". The presence of intervening contour banks impeding the flow of the pollutant or diverting it away from the waters are factors to be considered (State Pollution Control Commission v Blayney Abattoirs Pty Ltd (1991) 72 LGRA221).

Diffuse source pollution [9.1220] Water pollution is caused not only by point-source pollution - direct emissions into

watercourses from specific sources such as factories and sewage treatment works. Uncontrolled surface water flow, picking up pollutants such as eroded soil, salts, fertilisers, pesticides, manure, oil and the debris of urban life, is also a major cause of water pollution. This is usually referred to as diffuse-source pollution. The EPA has tackled the diffuse-source water pollution problem in recent years through stormwater education and engineering programs. The offences under section 120 of the POEO Act of polluting waters and causing waters to be polluted are broad enough to encompass diffuse-source pollution, including salinisation and sedimentation of watercourses stemming from disturbance to vegetation in the course of

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agricultural and forestry activities. These offences are reinforced by the deeming provision in the definition of water pollution (POEO Act, Dictionary) covering matter placed in positions where it is likely to end up in waters (see [9.1210]). It has been held that pesticide sprayed on land in Queensland, washed off the land by rain and deposited into a NSW river falls within the offence under section 120 (Brownlie v State Pollution Control Commission (1992) 76 LGRA 419). In practice, however, the licensing provisions of the legislation have been used in a very limited way to control diffuse-source pollution. Licences relating to diffuse pollution have been issued only to State Forests in relation to logging activities and corporatised privatised irrigation areas. This practice is continued under Schedule 1 of the POEO Act. As these licences recognise, however, the only effective way of controlling diffuse-source pollution is through techniques of land management. Activities on the land in water catchment areas play a vital part in determining the degree to which watercourses are polluted and the nature of the pollution. There are a number of other government agencies with powers to regulate land-based activities likely to lead to sediment pollution of watercourses in catchment areas, and to require remedial steps to be taken. These include:

• •

Water NSW (see [15.980]) Local Land Services (see [16.210])

• Sydney Water Corporation, Hunter Water Corporation and the water supply authorities in •

their own areas of operation and, outside these areas, local councils (see [9.800]) . These bodies have extensive powers to control catchment areas in order to prevent the pollution of domestic water supplies. The Department of Primary Industries jointly administers the Soil Conservation Act 1938 with the Office of Environment and Heritage. Under this Act the Soil Conservation Commissioner has broad powers designed to encourage landholders to take soil conservation and erosion prevention measures and, where this fails, to order action to be taken (see [11.440]).

Case study: What are waters? [9.1230] In Electricity Commission of New South Wales v Environment Protection

Authority (1992) 77 LGRA 424, the Court of Criminal Appeal held that the defendant was guilty of the offence of polluting waters even though the waters that had been polluted were entirely on its own land and had been specially constructed as a cooling pond for adjacent power stations. The defendant only had an excuse to the extent that pollution was permitted under the terms of its licence. The court drew attention to the broad definition of "waters" (POEO Act, Dictionary), which includes water stored in artificial works, mains, pipes and channels. It countered suggestions that, on this reasoning, an offence would be committed every time someone used chlorine in their swimming pool by arguing that this would not involve a change in the condition of the water contemplated by the definition of "pollute". It also pointed to the fact that the law does not concern itself with trifles.

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Air pollution [9.1240] It would be unrealistic to try to prohibit all forms of air pollution. Instead, the POEO Act allows for standards to be set in respect of the concentration and rate of "point source emissions" from activities that are carried out or plant that is operated at any premises (ss 128(1), 128(1A)). "Point source emissions" are defined to mean emissions "released from a chimney, stack, pipe, vent or other similar kind of opening or release point" (s 128(1A)). An emission standard might, for example, stipulate the maximum quantity of specified pollutants (such as sulphur dioxide or chlorine) that can be present in a cubic metre of gases at the point of emission. Non-compliance with such a standard is a tier 2 offence (s 128(3)).

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The problem with such vague requirements is that those subject to them are never quite sure what precisely they have to do in order to abide by the law, while the EPA and local councils are never quite sure what is required to convince a court that an offence has been committed.

Case study: Failure to minimise emissions [9.1270] In Environment Protection Authority v Unomedical Pty Ltd (No 3) [2010) NSWLEC 198 the defendant was prosecuted for failing to minimise the emission of a known carcinogenic chemical emitted from its sterilisation process. There was evidence that the company could have afforded to install equipment that would have significantly reduced the emissions. In deciding what amounted to "such practicable means as may be necessary" the Court assessed what was reasonable in totality by reference to the nature and cause of the risk, current scientific and engineering knowledge (including at overseas operations) and the technical means by which the air pollution could have been prevented or minimised. The Court also confirmed that the offence in s 128 applies even if no actual or likely environmental harm has occurred. The defendant was fined $90,000 and ordered to publicise the offence (Environment Protection Authority v Unomedical Pty Ltd (No 4) [2011] NSWLEC 131).

Air pollution emission standards [9. 1250] Standards have been laid down for a range of air pollutants that can be emitted by activities and plant (Protection of the Environment Operations (Clean Air) Regulation 2010). These standards were extensively updated and expanded in 2005. Maximum emission levels are specified for scheduled premises that require a licence because they are listed in Schedule 1 of the POEO Act in relation to, for example, sulphur, halogens (chlorine and fluorine), oxides of nitrogen, solid particles, smoke, soot, chlorines, dioxins, furans and heavy metals (Protection of the Environment (Clean Air) Regulation, cl 38, Schedules 2 - 4). Operational requirements also apply to certain afterburners, flares, vapour recovery units and other treatment plant at premises that require a licence. Maximum emission levels are specified for non-scheduled premises in relation to solid particles and smoke (Protection of the Environment Operations (Clean Air) Regulation 2010, cl 44, Schedule 6). The Regulation also prescribes control equipment and procedures to be used in the use of high sulphur liquid fuels and the transport and storage of volatile organic liquids (such as petrol) (Parts 5 and 6).

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Odours [9.1280] Occupiers of premises at which scheduled activities are carried on under a licence must not cause or permit the emission of an offensive odour (POEO Act, s 129(1)). This is defined as an odour that "by reason of its strength, nature, duration, character or quality" is harmful to, or unreasonably interferes with the comfort of a person outside the premises from which it is emitted (POEO Act, Dictionary).

It is a defence if:

When the Regulation was amended in 2005 the EPA estimated that the changes would prevent the emission of 26,727 tonnes of solid particles, 366,062 tonnes of nitrogen oxides and 94,316 tonnes of sulphur dioxide emissions in the next 20 years (Department of Environment and Conservation, 2005/06 Annual Report, p 33).

• •

Where no standard is stipulated

Significant fines have been imposed for this offence, for example $125,000 in Environment Protection Authority v Shoalhaven Starches [2006] NSWLEC 685.

[9.1260] Where a standard has not been laid down for a particular point source emission, or for all non-point source emissions, occupiers of premises are faced with the vague instruction that they should conduct their activities "by such practicable means as may be necessary to prevent or minimise air pollution" (POEO Act, s 128(2)). In some cases this requirement is clarified through:

• conditions attached to licences, including individualised emission standards • obligations expressed in notices.

In other cases, occupiers are left to work out for themselves precisely what this instruction means in the context of their own operations (State Pollution Control Commission v AC Hatrick Chemicals Pty Ltd (1992) 76 LGRA 346 at 353-354 ).

the environmental protection licence for the premises contemplates the emission of the odour, and conditions aimed at minimising it have been complied with, or the odour affects only those engaged in the management or operation of the premises (s 129(2)).

Open fires and incinerators

Controls on lighting fires [9.1290] The EPA can prohibit open fires or specified classes of incinerators for a period of up to seven days when it considers weather conditions warrant it (ss 133(1), 133(2)), through an order published in a daily newspaper circulated in NSW or broadcast by radio or television (s 133(4)).

• • •

There are other legislative controls on fire-lighting under:

Rural Fires Act 1997 National Parks and Wildlife Act 1974 Native Vegetation Act 2003 (see Chapter 12)

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Threatened Species Conservation Act 1995 (see Chapter 12).

Authorised officers can issue a notice requiring any fire to be extinguished immediately. They can order that fires be extinguished where they are health hazards or likely to cause "serious discomfort or inconvenience" (POEO Act, s 134 ).

General obligation [9. 1300] Under Part 3 of the Protection of the Environment Operations (Clean Air) Regulation 2010 there is a general obligation to prevent or minimise air pollution when burning, for example by:

• considering potential smoke impacts

•

making sure that material being burnt is dry and suitable for burning (cl 10).

Tyres, coated wire, paint and solvent containers and certain treated timber cannot be burnt except in a licensed incinerator (cl 11).

Controls in certain council areas [9.131 0] Different prohibitions apply in some local council areas. These prohibitions and the

affected council areas are listed in three parts of Schedule 8, Protection of the Environment Operations (Clean Air) Regulation 2010. In Sydney, Wollongong, Newcastle and other council areas listed in Schedule 8, Part 1 all burning is prohibited except with approval (cl 12(1)). In the council areas listed in Schedule 8, Part 2, vegetation cannot be burnt except with approval (cl 12(2)). In the council areas listed in Schedule 8, Part 3, domestic waste can be burnt on residential premises if no collection service is available, but other burning of non-vegetative matter is prohibited except with approval (cl 12). There are a number of exceptions (see cl 12(4 )).

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can be heard inside a "habitable" room of any other house (Protection of the Environment Operations (Noise Control) Regulation 2008, cll 50 - 52).

Further information [9.1350] The EPA website has publications and videos on noise control, including in relation to neighbourhood noise, barking dogs, noise from vehicles, intruder alarms, noise guide for local government, road traffic noise, NSW industrial noise policy and rural noise.

See also noise control notices and noise abatement directions at [9.1010] and [9.1060].

Maintenance and operation of plant [9.1360] The POEO Act requires occupiers who operate any plant to maintain it in an "efficient

condition" and to operate it in a "proper and efficient manner". If they do not, they are guilty of a tier 2 offence if any air pollution or noise results (ss 124, 139; State Pollution Control Commission v Blayney Abattoirs (1991) 72 LGRA 221).

• •

is of a prescribed class that is not properly fitted with prescribed noise control equipment (s 137(1)), or

• is of a prescribed class that is fitted with noise control equipment that has not been

maintained in accordance with the Regulations (it is a defence to prove that all reasonable steps were taken to ensure the equipment was properly maintained) (ss 137(2), 137(3)).

Hours of use [9.1340] Articles such as lawnmowers, chainsaws, air conditioners, power tools and musical instruments cannot be used on residential premises during certain hours if the noise they make

cause either air or noise pollution by not processing, handling, moving, storing or disposing of materials (including raw materials and waste materials) in a "proper and efficient manner" (ss 126, 140).

In Jones v John Lysaght (Australia) Ltd (1983) 51 LGRA 90, it was held that the fact that the defendant held a licence covering the storage of materials under the former Clean Air Act 1961 did not absolve it of its responsibility to store materials in a proper and efficient manner.

Sale of noisy articles emits noise in excess of the prescribed level, where the article is of a prescribed class (s 136), or

carry out maintenance work but fail to carry it out in a "proper and efficient manner", and air pollution results (s 125)

[9.1370] In Smith v Cnizonom (unreported, Land and Environment Court, 25 March 1982), Justice Cripps rejected the argument that the demand for activities to be carried out in a proper and efficient manner merely required economic efficiency. Non cost-effective anti-pollution standards had also to be considered.

[9.1320] There is no provision in the POEO Act for setting general noise emission standards. Noise limits and hours of operation are often set in licence conditions. In Environment Protection Authority v Hochtief AG [2006] NSWLEC 200 the defendant was fined a total of $44,000 for two offences committed by its contractor which operated during a long weekend outside of the licence conditions.

• •

Tier 2 offences are also committed by occupiers if they:

Case studies: A proper and efficient manner

Noise

[9.1330] It is a tier 2 offence under the POEO Act to sell an article (including a vehicle) that:

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Land pollution [9.1380] It is a tier 2 offence under the POEO Act to pollute land, or cause or permit land to be

polluted (s 142A). The tier 2 waste offences (as well as the tier 1 waste disposal offences ins 115) will also be relevant where land pollution has occurred as a result of illegal waste dumping. These offences include:

• •

transport waste to a place that cannot lawfully be used as a waste facility (s 143(1); see [9.2500]), or use or cause or permit a place to be used as a waste facility when it cannot lawfully be used for that purpose (s 144; see [9.2510]). Land pollution is defined by the POEO Act Dictionary to mean:

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•

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"placing in or on, or otherwise introducing into or onto, the land (whether through an act or omission) any matter, whether solid, liquid or gaseous: that causes or is likely to cause degradation of the land, resulting in actual or potential harm to the health or safety of human beings, animals or other terrestrial life or ecosystems, or actual or potential loss or property damage, that is not trivial" (definition, par (a)), or placing or introducing onto the land matter prescribed in the Regulations (definition, par (6 )). This includes hazardous waste, restricted solid waste, asbestos waste that is greater than 10 tonnes, waste tyres of greater than 5 tonnes and greater than 500 waste tyres (Protection of the Environment Operations (General Regulation) 2009 cl 109). Volumes less than those amounts of asbestos waste or tyres may nevertheless constitute land pollution under the first point above.

Case study: Land pollution offences Env ironme nt Protection Authority v Du Pont [Australia} Ltd [9.1390] In Environment Protection Authority v Du Pont (Australia) Ltd (2013] NSWLEC 98 Justice Pepper considered the proper construction of the land pollution offence. Her Honour held it is a strict liability offence (at (25]). In relation to the phrase of placing matter in or on the land, Pepper J held that the offence "requires a deliberate, but not necessarily intentional, direct act or omission to have occurred that results in the matter being put or moved in or on the land" (at (54]). However, in relation to the phrase "or otherwise introducing", either a direct or indirect action may suffice (at (55]). For example, the emission of a pollutant into the atmosphere by a defendant which then falls onto land would satisfy the phrase "or otherwise introducing" onto land, but not "placing" matter on land. Her Honour also discussed the meaning of "cause" in the context of the land pollution offence. For example, a defendant could be taken to have caused land pollution in circumstances where a pollutant was emitted or escaped from a factory because of a failure by the defendant to contain it and, as a result of the wind and the pollutant settling by gravity it was therefore introduced into or onto land (at (88]).

Bankstown City Council v Hanna

In Bankstown City Council v Hanna (2014] NSWLEC 152 the defendant was prosecuted for illegally dumping approximately 80 tonnes of building waste containing asbestos on a vacant private property and a further load of approximately 10 tonnes on a council park. He was prosecuted with a land pollution offence (s 142A) and a waste transportation offence (s 143) in relation to each piece of land ie four offences in total. The defendant was fined a total of $225,000 and ordered to publicise the offence.

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Duty to notify pollution incidents [9.1400] The POEO Act imposes a duty to report a "pollution incident" in circumstances where material harm to the environment is caused or threatened (s 148(1)) . Material harm means:

• actual or potential harm to the health or safety of humans or to ecosystems that is not trivial • actual or potential loss or property damage exceeding $10,000 (s 147(1)).

The POEO Act requires various persons, including the person carrying on an activity, the occupier or an employer to notify the ARA and various other "relevant authorities" of pollution incidents (s 148) . Previously the duty was to report "as soon as practicable after the person becomes aware of the incident". As of 6 February 2012 the section was amended so that the person must report the incident "immediately after the person becomes aware of the incident" (s 148(2)). Employees are also required to immediately notify their employer of an incident, or the "relevant authorities" in situations where they are unable to contact their employer (s 148(3)). In addition to notifying the ARA, the other "relevant authorities" that must be notified are the EPA and local council (in situations where they are not also the ARA), the Ministry of Health, WorkSafe NSW and Fire and Rescue NSW (s 148(8)). The duty previously did not require incidents which only involved odour emissions to be reported. As from 1 January 2015 odour incidents must also be reported (this requirement arises from the repeal of 148(7) of the POEO Act by the Protection of the Environment Legislation Amendment Act 2014, Sch 2.1, item 6) . Failure to notify is a tier 2 offence (s 152). However, this offence now carries maximum penalties that are double that of any of the other more serious tier 2 offences (such as water pollution or land pollution), namely $2 million for a corporation and $500,000 for an individual. Daily penalties also apply. Pollution incidents must be notified even though it may incriminate the person reporting the incident (s 153(1)). However, any notification is not admissible in evidence against the person who made it (s 153(2)). In Environment Protection Authority v Ramsey Food Processing Pty Ltd [2010] NSWLEC 23 the defendant was fined $80,000 for failing to notify the EPA as soon as practicable after the escape of untreated abattoir effluent from a split pipe on its premises. The incident was notified four days after it occurred. The failure to notify impeded the EPA's response to the pollution and its ability to require prompt clean-up measures to prevent ongoing water pollution. In Environment Protection Authority v Caltex Australia Petroleum Ltd [2007] NSWLEC 647 the company was prosecuted by the EPA for its failure to notify the council of a leaking pipe which also had the potential to cause water pollution. The EPA did not become aware of the incident until more than three years after it had occurred. Caltex was ordered to pay $27,000 towards a council project to restore a river near where the incident occurred. In Environment Protection Authority v Orica Australia Pty Ltd (the Hexavalent Chromium Incident) [2014] NSWLEC 106 the defendant was prosecuted for failing to report an incident which occurred at its Kooragang Island plant "as soon as practicable". The incident involved the release of hexavalent chromium into the air which was not reported to the EPA until approximately 16.5 hours after the incident occurred. The company was ordered to pay $36,750 towards a dyke restoration project within Hunter Wetlands National Park to be undertaken by the Office of Environment and Heritage. It was also ordered to pay $175,000 towards the same project as a penalty for an offence of

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breaching its licence conditions in relation to the same incident. The amendment to the POEO Act requiring pollution incidents to be notified immediately was introduced as a result of recommendations made in a report of an independent inquiry into this incident (see Brendan O'Reilly, A Review into the Response to the Serious Pollution Incident at the Orica Australia Pty Ltd Ammonium Nitrate Plate at Walsh Point, Kooragang Island on August 8, 2011 (September 2011)).

Case study: When does the duty to notify arise? [9.1410] In Environment Protection Authority v Bulga Coal Management Pty Ltd

[2014] NSWLEC 5 the defendant was prosecuted for an offence of failing to notify a pollution incident that caused or threatened material harm to the environment. The incident was reported to the EPA nearly 24 hours after an employee of the defendant became aware that an incident had happened. It was reported shortly after the defendant's employees determined that the incident was a reportable incident, namely that due to the clean-up method to be adopted the costs would be greater than $10,000 which satisfied the definition of "material harm to the environment" ins 147. The charge was in relation to the previous wording of s 148(2), namely that the defendant had failed to notify the EPA of the incident "as soon as practicable after the person becomes aware of the incident". Justice Pain held that the offence of failure to notify was not a strict liability offence and requires proof of mens rea. The prosecutor had to prove not only that the defendant was aware of the incident, but also that the defendant was aware that the pollution incident caused or threatened material harm to the environment. This was a subjective fact. That is, the duty to notify the incident "as soon as practicable" would not arise until the defendant was aware that the pollution incident caused or threatened material harm to the environment (at [94]-[95]). Her Honour rejected the EPA's argument that it was enough for the prosecutor to establish objectively that the pollution incident caused or threatened material harm to the environment. However Pain J also held that actual knowledge could be established through "wilful blindness". Therefore a defendant cannot "sit on his or her hands and ignore threatened or actual harm" (at [91]-[93]).

Environment Protection Authority v Forbes Shire Council [2014) NSWLEC 26 was the first prosecution under the amended duty to notify provisions which require immediate notification of a pollution incident that causes or threatens material harm to the environment. Justice Pain referred to one of the elements of the offence under the new provisions as being "awareness that the pollution incident caused or might cause material harm to the environment" (at [37]). The Bulga decision was referred to in support. Her Honour therefore again held that this amended provision is not a strict liability offence. The matter was a guilty plea and there does not seem to have been any arguments raised on this point by the parties in relation to the amended wording of the legislation.

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Preparation and implementation of pollution incident response management plans [9.1420] Licensees are now required to prepare a written pollution incident response management plan (PIRMP) (POEO Acts 153A; POEO (General) Reg cl 98B(1)). The regulations can also specify other industrial premises for which the EPA may require the occupier to prepare a PIRMP (s 153B). PIRMPs must be kept at the licensed premises, or for non-premises based activities, it must be kept "where the relevant activity takes place" (s 153D). The PIRMP must also be tested as provided by the regulations (s 153E, POEO (General) Reg cl 98E). In circumstances where there is a pollution incident that may result in material harm to the environment (ie where there is a duty to notify a pollution incident under s 148), the person that is conducting the activity is required to immediately implement the PIRMP (s 153F). Failure to prepare, keep a PIRMP at the required place, test or implement a PIRMP is a tier 2 offence (ss 153A- 153B, 153D - 153F).

• • • •

PIRMPs must contain details of (s 153C): the procedures that the licensee or occupier will follow to notify certain persons of the pollution incident, namely landowners or occupiers in the vicinity, the local council, any other local council whose area may be affected by the pollution, and, if the pollution incident may result in material harm to the environment, the "relevant authorities" that must be notified under s 148 (see [9.1400]) the action that the licensee or occupier will immediately take in order to reduce or control pollution "the procedures to be followed for co-ordinating, with the authorities or persons that have been notified, any action taken in combating the pollution caused by the incident and, in particular, the persons through whom all communications are to be made" any other information specified by the regulations. This includes matters such as the likely hazards that may result from the incident in relation to human health or the environment, potential pollutants relating to the activity, and equipment that can be used if a pollution incident occurs in order to contain or control it (POEO (General) Reg, cl 98C).

It is noted that a PIRMP does not have to be prepared as a stand-alone document. It can form part of another legally required document, such as one required under work health and safety laws or as a condition of a licence or development consent. However, this is provided that "the information required to be included in the plan is readily identifiable as such in that other document" (POEO (General) Reg, cl 98B(2); EPA, Environmental Guidelines: Preparation of Pollution Incident Response Management Plans (2012), p 3).

Strict liability [9.1430] A strict liability offence is one constituted by the polluting act or omission, regardless of whether the polluter had a guilty intent. However, the excuse of honest and reasonable mistake of fact is available to the defendant (He Kaw Teh v The Queen (1985) 157 CLR 523; CTM v The Queen [2008] HCA 25); that is, the defendant believed, even though mistakenly, that factual circumstances existed which would have made their actions innocent, provided that this was a reasonable belief (see [2.630]). Where the defence is raised by a corporation, "the mistaken belief of fact must be held by a person whose belief can relevantly be the belief of the corporation, often the directing mind and will of the corporation" (The Hills Shire Council v Kinnarney Civil &

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Earthworks Pty Ltd [2012] NSWLEC 45 at [173] c1tmg Director-General Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) (2009) 172 LGERA 225 at [78]-[95]).

If the defence produces enough evidence to raise the possibility that the defendant held such a belief, the prosecution must prove beyond reasonable doubt that:

• •

the defendant had no such belief, or the belief was not a reasonable one.

It has been held in a number of cases involving water pollution that the tier 2 offence is an offence of strict liability (Nicolaisen v Coal Cliff Collieries Pty Ltd, unreported, Land and Environment Court, 18 June 1984; Woodward v Cleary Brothers (Bombo) Pty Ltd (1984) 54 LGRA 409; Cooper v ICI Australia (1987) 31 A Crim R 267; Hunter Water Board v State Rail Authority of NSW [No 1) (1992) 75 LGRA 15; Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 75 LGRA 71) . It has also been held that tier 2 offences created by the Clean Air Act 1961 (now POEO Act, ss 124 - 26) are strict liability offences. The offence of causing or increasing air pollution from scheduled premises by failing to store materials in a proper and efficient manner (now found in POEO Act, s 126) has been held by Justice Stein to be an offence of strict liability (Environment Protection Authority v Australian Iron and Steel Pty Ltd [No 2) (1992) 78 LGERA 373). In Environment Protection Authority v Water Board (1993) 79 LGERA 103, Justice Bignold held that the offences now found in POEO Act, ss 124, 125 (inefficiently maintaining and operating plant, causing air pollution; inefficiently carrying out maintenance work on plant, causing air pollution) are also offences of strict liability. In Environment Protection Authority v Unomedical Pty Ltd (No 3) [2010] NSWLEC 198 it was held that the offence ins 128(2) of failing to carry on an activity or operate plant "by such practical means as may be necessary to prevent or minimise air pollution" is a strict liability offence.

The excuse of honest and reasonable mistake [9.1440] The decision of the Court of Criminal Appeal in State Rail Authority of New South

Wales v Hunter Water Board (1992) 78 LGERA 343 provides guidance on what "reasonable mistake of fact" covers. Mere absence of knowledge that pollution is likely to occur, based on a general assumption that everything is in order, is not sufficient. Defendants will not be excused on the basis that they had no particular reason to be aware of the fact that the operation of the plant and equipment in question might result in pollution. There must be a positive belief that the operation of the plant and equipment would not result in pollution, and this must be sufficiently specific to relate it to the elements of the particular offence; for example, a belief that the particular pipeline did not leak or, if it did, that the oil that escaped would not end up in waters covered by the Act. The decision in Environment Protection Authority v Brazel [2002] NSWLEC 7 further illustrates this principle. The defendant had caused stormwater pollution when injecting termicide into the foundations of a house. Drainage had not been discussed when the defendant drilled holes into a concrete slab. Charged with polluting waters, the defendant's assumption that everything would be in order (rather than a positive and specific belief regarding the location of stormwater pipes) was insufficient to establish the defence of honest and reasonable mistake of fact .

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The mistake must be one of fact, not law, and must be one that would render the actions of the defendant "innocent". So, for example, defendants cannot argue that they had breached discharge standards in the past without being prosecuted and this had led them to believe that the standards were only targets (State Pollution Control Commission v Broken Hill Pty Co Ltd [No 1) (1991) 74 LGRA 351). The mistake must be reasonable. In Woodward v Cleary Brothers (Bombo) Pty Ltd (1984) 54 LGRA 409, the defendant argued that it believed that a bank it had built would prevent polluted water from entering a creek. The bank had, in fact, collapsed. It was held that the belief that the wall was strong enough to withstand the water pressure was unreasonable, and the excuse of reasonable mistake of fact was not available. It is clear that the defence of honest and reasonable mistake is not easy to establish. However, in Environment Protection Authority v Milpharma Pty Ltd [1994] NSWLEC 189 the defence succeeded in relation to a charge of polluting waters under what is now POEO Act, s 120. Justice Bignold found that the belief by the managing director that there would be no overflow from a waste water tank into Sydney Water's sewer was honestly and reasonably held, and had not been displaced by the prosecution beyond reasonable doubt.

Due diligence distinguished [9.1450] References to the unreasonableness of the defendant's state of awareness look very much like a requirement for proof of negligence to obtain a conviction for a tier 2 offence. But we have already seen that tier 1 offences can be committed not only deliberately but also negligently, and that the negligence need not be of a high degree (see [9.1100]). There appear to be problems of overlap.

This issue was addressed by Justice Cripps's decision in State Pollution Control Commission v Australian Iron and Steel Ltd (1992) 74 LGRA 387. He held that the excuse of reasonable mistake of fact to a tier 2 offence does not include an excuse of due diligence (see [2.640]) . It is much narrower. Defendants must be convicted, regardless of how much care has been taken to prevent the incident from taking place, if:

• they are fully aware of all the facts that go to make up the offence, or • any mistake in relation to these facts is unreasonable.

In other words, defendants can be convicted of the offence even where the court is satisfied that they have taken every possible precaution to prevent it from occurring. Due diligence is not a distinct excuse, except where it is specifically provided for in the legislation. For example, a due diligence defence is available for tier 1 offences (see [9 .1180]). The decision in State Pollution Control Commission v Australian Iron and Steel Ltd was confirmed by the Court of Criminal Appeal in Australian Iron & Steel Pty Ltd v Environment Protection Authority [No 2) (1992) 79 LGERA 158.

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Liability of occupiers and employers

Occupiers [9.1460] Defendants sometimes argue that natural events or third parties "caused" pollution. For example, if stormwater enters a holding tank for waste liquid, causing it to overflow, or if a vandal turns on a tap allowing the liquid to escape, they argue that the rain or the vandal caused the pollution.

To counter this, the POEO Act deems occupiers liable for certain pollution unless they can prove on the balance of probabilities that:

•

the pollution was caused by another person who was not an employer, agent, licensee, contractor or sub-contractor of the occupier, and

• the occupier took all reasonable steps to prevent the pollution (s 257).

Licence holders have the same defence where they are charged with breach of a licence condition (s 64(2)). In Environment Protection Authority v Meta/corp [2001] NSWLEC 207 the defendant argued it should not be held responsible for licence breaches at its scrap metal recycling business. It argued that it had put in place reasonable measures to inspect whether metal being fed into the processor contained material such as cigarette lighters that would cause explosions. The Land and Environment Court held that the fact that the defendant had been able to implement measures since the offences to reduce the explosions suggested there were reasonable measures which could have been put in place at the time of the offences.

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the pollution" where the person who actually caused the pollution was an employee, agent, licensee, contractor or sub-contractor of the occupier. In this context, there is no longer any requirement for the prosecutor to prove the employer or head contractor to be exercising control.

Tier 3 offences [9.1480] Tier 3 offences are tier 2 offences under the POEO Act or regulations made under that Act, which can be dealt with by way of a penalty notice imposing a fine (POEO Act, ss 114, 222). Schedule 6 of the POEO (General) Reg lists the specific offences which can be the subject of a penalty notice.

Penalty notices are used in relation to relatively minor infringements. The circumstances in which penalty notices are an appropriate response to an alleged offence are set out in the EPA Prosecution Guidelines (2013) http://www.epa.nsw.gov.au/resources/legislation/ 20130141EPAProsGuide.pdf.

An enforcement officer may withdraw a penalty notice regarded as inappropriate, and must withdraw it if directed by the EPA. A prosecution for an offence may be commenced if the penalty notice is withdrawn (s 228). Since March 2010 the Fines Act 1996 has given agencies who issue penalty notices an express discretion to issue an official caution (s 19A) instead of a penalty notice. Agencies may also conduct an internal review of a decision to issue a penalty notice (ss 24A- 24J). Internal reviews should follow guidelines issued by the Attorney-General.

Service of notices

Occupiers of land, therefore, should take steps to prevent air pollution, water pollution, land pollution, unlawful discharges to the sewer, noise pollution and other environmental offences by taking preventive actions to deal with foreseeable acts of vandalism or natural events. For example, they should properly maintain and protect (through such means as fencing, roofing, contouring, fire breaks or locked gates) any liquid storage tanks or other plant and equipment exposed to the elements or to mischief from vandals.

[9.1490] Penalty notices can be issued by an enforcement officer authorised by the EPA or any other regulatory authority (POEO Act, s 187). However, the authorisation of officers appointed by regulatory authorities other than the EPA is limited to the functions of the regulatory authority under the Act (s 188(3)).

Employers and head contractors

A penalty notice can be served by an enforcement officer either personally or by post or, where the relevant offence relates to an owner of a vehicle or vessel, it may be left on or attached to the vehicle or vessel (s 224 and POEO (General) Reg, cl 83).

[9.1470) In the past issues have arisen about whether employers are liable for acts of employees that cause water pollution where these acts are carried out in the course of their employment (vicarious liability). The Court of Criminal Appeal has held that they are liable even in cases where employees' actions amounted to a quite improper way of doing their jobs. For example, in one case employees were supposed to use pumps to keep the liquid in a leachate dam below a certain level, but they sped things up by breaching the dam's walls (Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 75 LGRA 71).

Head contractors have also been held liable for the acts of those they contract with and their employees but only in circumstances where they exercise control over them (State Pollution Control Commission v Australian Iron and Steel Ltd (1992) 74 LGRA 387; Environment Protection Authority v Snowy Mountains Engineering Corporation Ltd (1994) 83 LGERA 51; Environment Protection Authority v McConnell Dowell [2003] NSWLEC 70. Where pollution from "premises" is involved this matter is now directly addressed by section 257 of the POEO Act. This provides that an occupier of premises is "taken to have caused

The penalty notice specifies the fine, which must be paid within 28 days (ss 223, 227) unless the defendant chooses to go to court and fight the charge (s 223).

Fines [9.1500] Fines for tier 3 offences vary (see POEO (General) Reg, Sch 6). From 29 August 2014 a number of the penalty notice amounts were substantially increased. For some of the more serious tier 2 offences that can be dealt with as a tier 3 offence by way of a penalty notice, the penalty notice amount was increased ten-fold to $15,000 for a corporation and $7,500 for an individual if the penalty notice is issued by the EPA. This includes offences such as failing to obtain a licence (ss 48 - 49), breach of licence conditions (s 64, except in relation to failure to submit an annual return on time for which the penalty notice amount is less), failure to comply with a clean-up or prevention notice (ss 91, 97) water pollution (s 120), emission of excess air impurities (s 128), land pollution (s 142A), and certain waste transportation and dumping offences (ss 143 - 144). Where other enforcement officers, such as local councils, are permitted to issue penalty notices

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for some of these offences, the penalty notice amount is $8,000 for a corporation and $4,000 for an individual. Amounts for other penalty notices vary from $80 to $4,000 for individuals and $400 to $8,000 for corporations.

Use of penalty notices [9.151 0] Penalty notices are an increasingly utilised enforcement tool. Based on data from the

EPA's annual report for 2013-14 in that financial year the EPA issued over 1200 penalty notices, local councils issued over 5000 penalty notices and other NSW government bodies issued over 2400 penalty notices for pollution and dangerous goods matters (p 90). The vast majority of penalty notices that are issued are in relation to littering, "smoky vehicle" and noise offences. Data from the Department of Environment, Climate Change and Water Annual Reports indicates that during the 2007-08 period local councils issued more than 22,500 littering related penalty notices when the litter prevention campaign was at its peak. Most penalty notices for littering offences (ss 144A - 146E) are issued in relation to littering from vehicles. It is easy to issue penalty notices for vehicle-related offences because section 146 deems vehicle owners liable for offences committed from the use of the vehicle unless they make a statutory declaration stating the name of the driver or other person responsible for the offence.

Debt recovery

[9.1540]

The POEO Act was amended with effect from 11 January 2013 so that directors and managers are only taken to have committed the same offence as a corporation in relation to specifically listed offences and specified circumstances. There are two different categories of corporate officer offences which require proof of different matters. For offences which are listed as being offences which attract " special executive liability", every person who is a director of, or person concerned in the management of, the corporation is also taken to have committed the same offence (s 169(1)). "Special executive liability" offences are listed ins 169(1A) and include the operative tier 1 offences (ss 115(1) and 116(1 ), 116(2)) as well as a number of tier 2 offences such as breach of licence conditions (s 64(1)), water pollution (s 120(1)), land pollution (s 142A(l)), unlawful waste transportation (s 143(1)), unlawful use of a place as a waste facility (s 144(1)) and failure to notify pollution incidents that may cause material harm to the environment (s 152). It is a defence to a prosecution in relation to an offence attracting special executive liability for a corporate officer to show that:

• •

[9.1520] An efficient debt recovery system underpins the issuing of penalty notices. The State

Debt Recovery Office follows up penalty notices issued by the EPA and local councils by issuing reminder letters and collecting payments. Further enforcement, if necessary, is undertaken by the State Debt Recovery Office or directly by the agency which issued the penalty notice.

Corporate and director liability Establishing intention (9.1530] The POEO Act provides that where it is necessary to establish the intention of a

corporation, it is sufficient to show that an officer, employee or agent, while acting in that capacity, had that intention (s 169C). This section overcomes the drawbacks of the common law approach in Tesco Supermarkets Ltd v Nattrass [1972] AC 153, where in order to render the corporation liable the requisite fault had to be found in the board of directors, the managing director, or persons to whom a function of the board had been wholly delegated. The approach in Tesco has many disadvantages, including opportunity for corporate evasion, particularly on the part of large corporations, and the fact that decisions that cause pollution are often not confined to the top levels of management.

The liability of corporate officers [9.1540] Previously the POEO Act provided that where a corporation committed an offence

under the POEO Act or the regulations, every person that was a director of, or concerned in the management of, the corporation was also taken to have committed the same offence. For example, in Environment Protection Authority v Eco Cycle Materials Pty Ltd and Scanlan [2003] NSWLEC 63 both the company and the director were convicted of operating an unlicensed facility designed to crush and grind materials for use in road construction.

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they were "not in a position to influence the conduct of the corporation in relation to its contravention of the provision" (s 169(1)(6)), or if they were in such a position, they "used all due diligence to prevent the contravention by the corporation" (s 169(1)(c)). The burden of establishing these statutory defences lies on the director or manager (s 169(1)).

The second category of offences for which a corporate officer can be held liable are those offences that are listed as being "executive liability offences" in s 169A(l). They include tier 2 offences such as failure to obtain a licence in relation to premises-based activities (ss 47(1), 48(2)), failure to comply with a clean-up or prevention notice (ss 91(5), 97), emission of offensive odours from licensed premises (s 129), providing false or misleading information about waste (s 144AA(l)), and offences related to the failure to prepare, keep, test or implement a PIRMP (ss 153A, 153B(2), 153D - F). Where a corporation has committed one of the executive liability offences a director or person "who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation" in relation to its commission of the particular offence is also taken to commit an offence where the prosecution can prove that the corporate officer: (i)

knows or ought reasonably to know that the executive liability offence (or an offence of the same type) would be or is being committed, and

(ii)

fails to take all reasonable steps to prevent or stop the commission of that offence (s 169A(2)).

The POEO Act gives examples of matters that may constitute "reasonable steps", such as ensuring that:

• • • •

assessments have been carried out in relation to the corporation's compliance with the relevant offence provisions, relevant training has been provided to employees, appropriate plant, equipment and systems have been implemented, and a "corporate culture" is adopted that does not foster non-compliance with the offence provisions (s 169A(7)).

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Corporate officers can also be held liable as an accessory to the commission of any offence committed by a corporation under the POEO Act or the regulations (s 169B).

Exemptions [9.1550] Under section 284 of the POEO Act, the EPA can exempt a person from specified legal

requirements in an emergency or when the authority is satisfied that:

• •

it is not practicable to comply with the relevant provisions by implementing operational changes to plant the exemption will not have any significant adverse effect on public health, property or the environment.

The authority's board must approve of the exemption and the exemption must be published in the Gazette and on the public register maintained by the EPA (ss 284, 308(2)).

Environmental audits [9.1560] The POEO Act provides for mandatory and voluntary environmental audits. An environmental audit is defined (s 172) as:

a documented evaluation of an activity (including an evaluation of management practices, systems and plant) for either or both of the following purposes: (a) to provide information to the persons managing the activity on compliance with legal requirements, codes of practice and relevant policies relating to the protection of the environment, (b)

to enable those persons to determine whether the way the activity is carried on can be improved in order to protect the environment and to minimise waste.

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The EPA may require that: the audit be undertaken by an approved environmental auditor, and an environmental audit report be prepared and submitted (s 174).

Local councils can require audits under prevention notices (see [9.960]) where an activity is not being carried out in an environmentally satisfactory manner. When sentencing an offender, the Land and Environment Court can also order a specified environmental audit (s 250(1)(d)). An audit was required in Environment Protection Authority v Shoalhaven Starches [2006] NSWLEC 685, in addition to a fine of $125,000 and a costs order of $235,000. There was a long standing history of odour complaints and the company had been prosecuted twice previously for odour-related offences. The Court noted that the cost of the proposed audit was estimated to be around $400,000. In Environment Protection Authority v Ramsey Food Processing Pty Ltd (No 2) [2010] NSWLEC 175 the court ordered that a specific consultant undertake an environmental audit costing $85,000. The company was required to report back to the court on the findings of the audit to inform the court' s further decision on an appropriate penalty. However, the defendant was later convicted of contempt for failing to carry out the environmental audit and was fined $300,000 (Environment Protection Authority v Ramsey Food Processing Pty Ltd (No 3) [2011] NSWLEC 180; Environment Protection Authority v Ramsey Food Processing Pty Ltd (No 4) [2011] NSWLEC 246)).

Accreditation of environmental auditors [9.1590] Although the POEO Act provides for regulations to deal with the accreditation of auditors (s 173), an accreditation scheme for environmental auditors generally (as distinct from auditors under the Contaminated Land Management Act 1997) had not been introduced at the time of writing (July 2015).

Offences

Voluntary audits [9.1570] A voluntary environmental audit can be undertaken in relation to licensed or unlicensed activities (s 180). The Act encourages industry to undertake regular compliance audits by protecting information obtained through voluntary audits. Documents prepared for the sole purpose of a voluntary environmental audit are not admissible in evidence in proceedings against any person unless the person seeks to rely on them (ss 182(1), 183). The EPA cannot obtain a copy of a voluntary audit or request information in relation to it (s 182(1)).

Mandatory audits [9.1580] In certain circumstances, the EPA can require a mandatory environmental audit as a condition of a licence (s 174). Such a condition may only be imposed if the authority reasonably suspects that:

• a licensee has contravened its licence conditions, the Act or regulations and this has resulted in harm or likely harm to the environment, or • the licensee is carrying out the activity in an "environmentally unsatisfactory manner" (s 175; see [9.960] as to the meaning of "environmentally unsatisfactory manner").

[9.1600] It is a tier 2 offence for a licensee to:

• • • • •

supply false or misleading information to an auditor fail to provide materially relevant information to an auditor, or not to retain audit documentation (s 177). It is a tier 2 offence for an environmental auditor to:

omit to include materially relevant information in an audit report, or provide false or misleading information in an audit report (s 177).

Information supplied by a person in relation to a mandatory audit can be used as evidence in a prosecution, and the privilege against self-incrimination does not apply (ss 178, 179).

Economic ins trument s [9.1610] The EPA has power to develop and implement schemes that utilise economic measures

(see [2. 720]) in order to achieve "cost-effective environmental regulation or protection" (POEO Act, s 293(1)).

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Tradeable emission schemes [9.1620] The EPA is required to consider any tradeable emission scheme or other scheme involving economic measures when exercising its licensing functions and may implement them though licence conditions (ss 45(e), 69, 293 - 295L). Such schemes extend the "polluter pays" principle to economic and market-based approaches to pollution as a means of achieving cost-effective, flexible and efficient environmental regulation.

Protecting the Hunter River [9.1630] Schemes involving economic measures have the potential to create financial incentives for innovation in pollution control technology once the set standard is achieved. Under the Protection of the Environment Operations (Hunter River Salinity Trading Scheme) Regulation 2002, discharges of saline water into the Hunter River are permitted only when the river is in high flow or flood flow, and only by holders of salt discharge licences, who also must hold discharge credits in the scheme. In practice no discharges are allowed during low flow periods. Credits can be traded and can only be used in accordance with strict environmental conditions. The effect has been to reduce the salinity of the Hunter River since the scheme commenced in 1995, with coal miners, power stations and irrigators having a financial incentive to invest in ways of storing more saline water in low flow periods for emission during high flow and flood flow, rather than discharging the saline water into the river at such times, when the environmental effect is worst. In May 2014, 200 credits were sold by auction at an average price of $830 per credit. The 10 companies allocated credits included mines and power stations.

Green offsets [9.1640] Amendments made in 2005 to the POEO Act allow the establishment of green offset schemes through regulations or licences. Offset programs can be proposed where it is no longer cost effective to further reduce pollution at a licensed premises, but where reductions of the same pollutant can be achieved nearby (s 295N(2)). These powers build on pilot programs which occurred between 2003 and 2005 at the Ulan coal mine, Norske Skog paper mill and Moree spa baths as part of the National Market-based Instrument Pilots Program, under the National Action Plan for Salinity and Water Quality.

Load-based licensing [9.1650] In addition to the administrative component of the licence fee paid by all holders of licences from the EPA, some of the largest licensed activities also attract a "load" component. These activities include sewage treatment plants, cement production, brickworks, paper production and refineries.

Load-based licensing is implemented through the POEO (General) Reg and a load calculation protocol. In conformity with the polluter pays principle, licence fees are linked to the load of pollutants discharged into the environment. The discharge fee depends on:

• the mass of a particular pollutant discharged • the toxicity of the pollutant • the sensitivity of the receiving environment.

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Annual pollutant load limits apply, and annual reporting of loads is required. Load-based licensing creates an incentive for the largest polluters to not merely avoid breaching daily limits but to reduce annual pollution loads below licensed levels. It has had particular success in encouraging regional sewage treatment plant operators to use effluent for irrigation rather than discharging it to waterways. Licence holders can enter into voluntary load reduction agreements under which they receive an upfront fee credit for works which will reduce their pollutant loads during the agreement period. The Regulatory Impact Statement for the review of the POEO (General) Reg reported that of the 30 load reduction agreements entered into since 1999 only seven were successful and six were partially successful. The load-based licensing scheme has been refined since it commenced in 1999, to better target pollutants of concern. In June 2004 the pollutant weightings for key air pollutants were significantly increased. In 2007 load-based licensing was extended to target certain types of air pollution in the Sydney region, with higher fees applying to ozone producing chemicals emitted during the hotter summer weather when the environmental effects of ozone are greatest. The load-based licensing scheme was further refined in 2009, with new industries added and new pollutants of concern added to industries already subject to load-based licensing.

Risk-based licensing [9.1660] From 1 July 2015 the EPA introduced a risked-based licensing scheme. Under this scheme the amount of the administrative component of a licence holder's licence fee will vary based on the licence holder's environmental management performance in the past three years. Licensees are placed into an environmental management category A-E. Good environmental performers (category A) will receive a five per cent discount on their administrative licensing fees. Licensees in the worst category (category E) will have to pay twice their base administrative licensing fee (POEO (General) Reg, cl 10). Administrative licence amounts varying depending on the particular licensed activities. The base fee ranges from a few hundred dollars to over $300,000 per year. The risked-based licensing scheme will apply to the payment of licensing fees from 1 July 2016.

A licensee's environmental management category is determined by the EPA applying the Environmental Management Calculation Protocol. Categories will be recalculated each year as part of a licensee's annual return process. Under the protocol the environmental management category is calculated by working out an environmental management score for the licensee. This takes into account regulatory actions taken in relation to the licensee such as prosecutions, enforceable undertakings, licence suspensions, mandatory environmental audits, penalty notices, official cautions and warnings, clean-up and prevention notices, pollution reduction programs and any incident related site inspections. A licensee's score for regulatory actions may be offset by environmental management systems and practices, and environmental improvement works and programs (EPA, Environmental Management Calculation Protocol, 2015). Tying the administrative licensing fee amount to environmental performance acts as an incentive to improve environmental performance. It also reflects the polluter-pays principle as poorer environmental performers will essentially pay the costs of a greater need for regulation by the EPA (EPA, Regulatory Impact Statement: Proposed Protection of the Environment Operations (General) Amendment (Licensing Fees) Regulation 2013 (2013)).

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The new fee system is part of the EPA's general move to a risk-based approach to regulating licence holders. Under a risk-based approach the level of regulatory activities conducted by the EPA in relation to a particular licence holder will depend on an overall risk level (1-3) calculated for the licensee in relation to its environmental and human health risks. The higher risk licensees in level 3 should expect to have a greater level of regulatory activity, such as more inspections or more onerous licence conditions. An important component of the overall risk level is the licensee's environmental management category, ie their environmental management performance. It also takes into account matters such as the particular operation and emissions, the risk that a pollution incident will occur, and how close the activity is to sensitive environments and receptors, such as residences, hospitals and schools (see EPA, Protection of the Environment Operations Risk-based Licensing: Guidance on Using the Risk Assessment Tool, 2015). A risk-based approach will also be applied to enforcement.

Environmental monitoring [9.1670] The EPA can institute environmental monitoring programs in relation to the

environmental and human health impacts arising from licensed activities (s 295Y(l)). Independent expert advice must be obtained in relation to the cost effectiveness of such a program (s 295Y(6)). The regulations can require licensees to pay environmental monitoring levies to cover costs of the monitoring program (s 295Z(l)). In February 2013 provisions were added to the POEO (General) Reg to formally establish the Upper Hunter Air Quality Monitoring Network. This is an environmental monitoring program which monitors the air quality in the local government areas of Muswellbrook, Singleton and the Upper Hunter Shire, with the ultimate aim of devising strategies to improve air quality (Ch SA, Pt 1). Specified licence holders are required to pay levies towards construction costs of an air quality monitoring facility as well as an annual levy (ell 79C, 79H). The licence holders are also required to provide information regarding the amount of emissions for particulate matter, oxides of nitrogen and sulphur dioxide, and for coal mines, "the amount of material moved" at the licensed premises (cl 791). The EPA is required to publish the monitoring results on its website (cl 79L). It must also prepare an annual report and periodic reviews of the effectiveness of the program (cl 79L). In February 2015 provisions were added to the POEO (General) Reg regarding the Newcastle Local Air Quality Monitoring Network. Its objective is to monitor the air quality in Newcastle and provide information to assess air quality changes and determine the major sources of pollutants that are being monitored under the program (cl 790). Premised-based licence holders in the Newcastle area are required to pay an annual levy (cl 79P). The EPA is required to publish the monitoring results on its website and conduct periodic reviews on the effectiveness of the program (ell 79V, 79W).

Financial assurances [9.1680] Financial assurances may be attached as conditions to licences to secure funding towards remediation work or pollution reduction programs (s 296(1)). A financial assurance may be in the form of a bank guarantee, a bond or another form of security specified by the EPA (s 298(2)). To require a financial assurance, the EPA must be satisfied that it is justified by:

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the degree of risk of environmental harm in relation to the activities; the remediation work that may need to be carried out; the licensee's environmental record; or whether financial assurances that have already been required are adequate (s 299; POEO (General) Reg, cl 105).

The EPA can determine the amount of the assurance, which must not exceed the total costs and expenses likely to be incurred in carrying out the work or program (ss 300(1), 300(2)). Financial assurances are most commonly imposed on waste facilities.

If the licence holder fails to carry out any work or program covered by a financial assurance, the EPA can have the work carried out and use the financial assurance to recover its reasonable costs and expenses (ss 302 - 303). Before seeking to access the financial assurance, it must give notice to the licence holder and consider any representations by it (s 303). If the EPA then decides to realise the financial assurance, the licence holder must be notified and reasons given (s 303(6)). Disputes can be referred to the Land and Environment Court (s 307). After the work has been carried out by the EPA, any excess amount must be returned to the licence holder (s 303(7)). Any shortfall may be recovered from the licence holder as a debt (s 303(8)). A financial assurance lapses if the EPA has given written notice to the licence holder that the work or program for which the financial assurance was required has been satisfactorily carried out (s 304). The fact that a financial assurance has been called upon does not preclude a prosecution or other action being taken against licence holder (s 306). In Environment Protection Authority v Buchanan (No 2) [2009] NSWLEC 31 the defendant was prosecuted as the sole director of a company which repeatedly breached its licence conditions arising from the operation of a hazardous industrial waste treatment and storage facility. Prior to the prosecution the $120,000 financial assurance held by the company had been used to pay for site clean-up costs. The court ordered the defendant to pay a further $464,000 towards these clean-up costs which had already been incurred by the EPA and landowner.

Administration and enforcement EPA power to direct public authorities [9.1690] The EPA has broad powers to direct public authorities, such as Sydney Water and local councils (POEA Act, s 3(1)) to do anything within their power that will, in the EPA's opinion, "contribute to environment protection" (s 12). This can include:

• • • •

pollution prevention waste minimisation and disposal recycling protecting, restoring and enhancing the quality of the environment (ss 3(1), 6).

The EPA must consult with the public authority before issuing a direction. If there is a dispute, the relevant ministers, or the mayor of the local council, must be given an opportunity to resolve it (ss 12(2), (3) ).

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If this does not work, the matter can be referred to the Premier, who must appoint someone either to make an assessment or conduct a public inquiry, the report of which must be made available to the public (s 12(4)). If the Premier does not follow the resulting recommendation, this decision must be tabled in both Houses of Parliament and noted in the EPA's next Annual Report (s 12(4)). If a local council is involved in a dispute and does not comply with the Premier's decision, the EPA can carry out the work and recover its costs from the council (s 12(6) - (7)).

Appointment of an administrator [9.1700] If the environment is likely to be harmed because of the way in which a local council, or another public body not under the control of a Minister, exercises or fails to exercise its functions, the Governor can appoint another person to exercise them (POEO Act, s 317).

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- noise pollution offences - littering offences - offences against the Regulations relating to the operation of a motor vehicle.

Excluded offences [9.1730] An excluded offence is an offence committed in relation to:

• scheduled activities • licensed activities or work (eg, scheduled development work) • activities carried on by the State or a public authority • activities that are carried on by authorised network operators, as defined by the Electricity Network Assets (Authorised Transactions) Act 2015 • in the case of a noise pollution offence, a vessel in navigable waters or premises used in connection with vessels and situated adjacent to, or over, navigable waters (s 218(6)).

Licensing [9.171 OJ The EPA is the body responsible for issuing environment protection licences, but it is

under the control of the Environment Minister (POEAAct, s 13(1)). The Minister may direct the authority to refer a specified licensing function in respect of a particular matter to the Minister, when the Minister considers it expedient in the public interest to do so (s 13A). In exercising its licensing functions the EPA is supervised by the Land and Environment Court, which determines appeals by applicants dissatisfied with its decisions (s 287). In practice, appeals are rare, reflecting the negotiated nature of licensing. Members of the public objecting to the grant of a licence have no right of appeal under the POEO Act. The courts can be bypassed where a licensing decision of the EPA involves a public authority. Either this body or the EPA can refer the matter for settlement to the Premier, who makes the final decision (s 316). This reflects a view that disputes between government bodies should be dealt with at a political level.

Investigation [9.1740] The EPA, local councils, regulatory authorities and authorised officers are given wide powers of investigation in connection with their responsibilities under the POEO Act. These powers also apply to other areas such as pesticides, radiation, waste resource recovery, ozone, national parks, threatened species and marine parks. Authorised officers are appointed by the EPA, local councils and other regulatory authorities (s 187). Authorised officers from regulatory authorities other than the EPA can only use investigation powers for matters that fall within the functions of their regulatory authority under the POEO Act (s 188(3)).

Investigation powers can only be exercised for the purposes listed ins 184 of the POEO Act; for example, determining whether there has been a breach of the POEO Act, the regulations or licence conditions.

Powers to enter and search [9.1750] Authorised officers are given wide powers in relation to the entry and search of

Powers to prosecute [9.1720] The main responsibility for prosecuting offences lies with the EPA and other ARAs (see [9.640]). The EPA may take criminal prosecutions in relation to any offence committed under the POEO Act or regulations. Other ARAs are limited to prosecuting offences that lie within their areas of authority as an ARA (POEO Act, s 217). Other regulatory authorities may bring proceedings in defined circumstances.

• A(seelocalbelow) authority may institute proceedings for any offence other than an excluded offence (s 218(1)) • A water supply authority (see [9.800]) may institute proceedings for a water pollution offence (other than an excluded offence) • The Marine Authority (currently Roads and Maritime Services) may institute proceedings •

for a noise pollution offence regarding boats, or premises adjacent to or over navigable waters that are used in connection with boats (ss 218(3), 218(6)) Police officers may institute proceedings for (s 218(4)):

premises (see ss 196, 198). However, any part of a premises which is used only for residential purposes can only be entered with a search warrant or the occupier's permission (s 197). "Premises" are defined in the POEO Act Dictionary to include buildings, structures, land or a place as well as mobile plant, vehicles, vessels and aircraft. In Gerondal v Eurobodalla Shire Council [2011] NSWLEC 77 Craig J held that in the context of that particular case the "part of the premises used only for residential purposes" would not extend to the entire piece of land, but rather to a "building, structure or particular place physically used to provide residential accommodation" and possibly its immediate curtilage (at [43]). It would not extend to any part of the land that was being used as a "waste facility" (at [40], [46]). Authorised officers can enter premises by means such as foot, vehicles and aircrafts (s 196(2)). They can be aided in entering a premises by such other authorised officers and police officers as are considered necessary and reasonable force can be used to enter a premises (s 196(3)). They can be accompanied by such other persons that are considered to be capable of providing the authorised officer with assistance (s 199A). Once a premises has been lawfully entered authorised officers can do things such as:

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• take samples, photos or videos • carry out examinations and tests • examine, inspect and copy records • seize things connected with offences (s 198). Power to question [9.1760] An authorised officer can require a person that is reasonably suspected to have knowledge of matters in relation to a breach of the POEO Act, regulations or licences, or for purposes related to administering the Act, to answer questions (ss 184, 203(1)). The EPA, or any other regulatory authority, may require a corporation to nominate a director or officer to be the corporation's representative for the purpose of answering questions (s 203(2)). Answers given by a nominee bind the corporation (s 203(3)). An authorised officer can require a person to attend at a specified place and time to answer questions (s 203(5)). Authorised officers are able to electronically record answers to questions (s 203A(2)) but the interviewee must be notified that the interview will be recorded and a copy of the recording must be given to the person as soon practicable after it is made (s 203A).

Power to require information and records [9.1770] The investigatory powers include a provision allowing either the EPA, the regulatory

authority or an authorised officer to issue a notice requiring any person to furnish "such information or records (or both) ... in connection with any matter relating to its responsibilities or functions" (ss 191, 192, 193). Admissions obtained as a result of a notice are admissible in evidence, but are not necessarily conclusive (Environment Protection Authority v Shell Co of Australia Ltd [2000] NSWLEC 132).

Offences and warnings [9.1780] It is an offence to fail to comply with a requirement to answer questions or provide information or records without lawful excuse or to wilfully obstruct authorised officers (s 211(1), 211(3)). It is also an offence to provide materially false or misleading information (s 211(2)). The prosecutor does not have to prove that the defendant knew its answers were material. Whether information provided is material is a question for the court (Environment Protection Authority v Hargraves [2002] NSWLEC 113). In Environment Protection Authority v Peters [2006] NSWLEC 465 a defendant who changed the type of pesticide recorded on 300 or 400 pesticide application certificates after receiving a notice to provide these records was fined $80,000.

A person is not guilty of an offence of failing to comply with a requirement to answer questions or furnish information or records unless the person was warned that if they fail to comply it constitutes an offence (s 212(1)).

Self-incrimination [9.1790] A person is not excused from answering questions or furnishing information or records on the grounds that it might be self-incriminating (POEO Act, s 212(2)). However, answers given or information (but not records; s 212(4)) furnished by an individual, not a corporation, is not admissible in evidence in criminal proceedings against the individual if:

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the individual objected to answering the question or supplying the information at the time on the ground that it might be self-incriminating, or

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the individual was not warned of the right to object to answering the question or furnishing the information on the grounds that it might be self-incriminating (s 212(3)).

Protection again self-incrimination is thus confined to natural persons and not available to corporations. This is in line with the decision of the High Court in Environment Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477, where the court held that the privilege against self-incrimination does not, at common law, extend to corporations.

Self-monitoring as an information source [9.1800] Conditions requiring self-monitoring of both discharges and ambient conditions

outside premises can be attached to licences (s 66). In Environment Protection Authority v Ballina Shire Council (2006] NSWLEC 289 the Council was fined $35,000 for failing to undertake required environmental monitoring at its Ballina landfill. Self-monitoring requirements are an important source of information for regulatory authorities. To increase operator accountability, the licence holder is required to provide a statement certified as correct in their annual return relating to their licence, indicating (s 66(3}}:

• compliance with licence conditions • particulars of conditions and reasons for any failure to comply with them • action taken or planned to prevent the recurrence of any failure or to mitigate its effect • the fee payable in relation to the licence.

A licence holder who provides information in their annual return that is false or misleading in a material respect commits an offence (POEO Act, s 66(2); Environment Protection Authority v Wyanga Holdings Pty Ltd (2014] NSWLEC 68).

The public as a source of information [9.1810] Tipoffs in relation to offences and other information provided by the public also provides a valuable source of information for the EPA and other regulatory authorities in investigating offences. Pollution can be reported to the EPA through its Environment Line. Calls can be made anonymously. Littering from motor vehicles can also be reported on the EPA's website (see http://www.epa.nsw.gov.au/ and (9.2550]).

Discretion to prosecute [9.1820] When it comes to deciding whether to prosecute and whom to prosecute (eg, a company, its directors or its employees), enforcement bodies have a broad discretion. The wide reach of the criminal offences discussed above is substantially modified in practice by decisions made by these bodies in relation to particular cases. The EPA is not subject to directions from the Minister relating to prosecutions, even where government bodies are involved (POEA Act, ss 13(2)(c), 16(2)). A determination as to whether criminal proceedings should be instituted in relation to tier 1 offences and specially designated tier 2 offences is in the hands of the EPA' s board (ss 16(1)(d), 17).

A brief history of enforcement

Co-operative enforcement until the 1980s [9.1830] Traditionally, the State Pollution Control Commission, the predecessor of the EPA, pursued a cooperative enforcement strategy, with prosecution viewed as a last resort (State

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Pollution Control Commission Annual Report 1983-84, p 212). It relied heavily on "self-control and self-monitoring" (Annual Report 1984-85, p 141). This strategy was aimed at securing compliance by companies, through bargaining and compromise, rather than punishing wrongdoers, although it was in part necessitated by a shortage of resources.

Vigorous enforcement - the 1990s [9.1840] In the period 1990-2003 the EPA adopted, and resourced, a more vigorous prosecution policy. Around 100 prosecutions were completed annually, with the authority proving its case in over 90% of them. However, the most numerous prosecutions (often about half of the cases concluded each year) were minor motor vehicle-related matters (smoky exhausts and littering from vehicles). Water pollution prosecutions often constituted about 20% of prosecutions each year, followed by prosecutions for breach of licence conditions, then waste, dangerous goods and pesticide offences.

2003-2011 - mergers and diversification of departmental responsibilities [9.1850] The merger of the National Parks and Wildlife Service with the EPA in 2003 into what

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pyramid with a range of escalating enforcement responses, ranging from advisory letters and formal warnings at the bottom though to the harsher sanction of criminal prosecution at the tip (see EPA, Environment Protection Authority: Compliance Policy, May 2013, p 5). The idea behind an enforcement pyramid is that it provides the regulator with a range of regulatory tools which allows them to respond appropriately based on the non-compliant behaviour and attitude of the particular offender. Most regulation should take place at the base of the pyramid as persuasive methods are much more time and cost effective than criminal prosecutions. However, the harsher sanctions provide an important deterrence function which encourages potential polluters to comply with the law and adopt a cooperative attitude with the regulator (see Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate, Oxford University Press, 1992). The EPA' s Compliance Policy states that the appropriate enforcement response will depend on the resulting risks to the environment and human health, how serious the particular breach is, and the compliance attitude and history of the particular offender (Environment Protection Authority Compliance Policy (2013) p 5, available at: http://www.epa.nsw.gov.au/legisiation/130251epacompl.htm). Similarly the factors recommended for consideration in deciding whether to prosecute contained in the Prosecution Guidelines do include:

became the Office of Environment and Heritage (OEH) led to a diversification of the type of prosecutions run by OEH. In 2007 OEH also became responsible for enforcing the Native Vegetation Act 2003 (see Chapter 12). OEH continued to run an average of 100-120 cases per year across a broader range of legislation and commenced more than 50% of the criminal cases run in the Land and Environment Court (Land and Environment Court of NSW Annual Review 2009, p 31). OEH ran the first ever successful prosecutions under the Native Vegetation Act 2003 and threatened species legislation.

• whether the alleged offender has been previously dealt with by measures falling short of prosecution (such as a formal warning) • the availability and efficacy of alternatives to prosecution • whether court orders are necessary to prevent a recurrence of the offence • cooperation with the EPA after an offence has been committed • the duration and expense of a court hearing.

The current situation

These factors, as well as the adoption of an enforcement pyramid, allow room for the adoption of a cooperative strategy. However, another factor to be considered in developing prosecution policy is the need for deterrence, directed both at a particular defendant and the broader community. For example, if certain offences are particularly prevalent, even though only relatively minor, it may be necessary to take a prosecution in order to make an example of the offender and deter other potential polluters from committing an offence.

[9.1860] In February 2012, as a result of recommendations resulting from an independent inquiry into the incident at the Orica Australia Pty Ltd plant at Kooragang Island, near Newcastle (see [9.1400]), the EPA was re-established as an independent regulatory body. However, its legal services are still provided by the legal services branch of OEH, which continues to run prosecutions in EPA matters, as well as those falling under the responsibility of OEH. In 2013 the EPNOEH commenced 51 % of criminal cases run in the Land and Environment Court (Land and Environment Court of NSW Annual Review 2013, p 32). In the 2013-14 financial year, 90 of the 119 prosecutions that were initiated by OEH legal branch were EPA prosecutions (Environment Protection Authority Annual Report 2013-14, p 91) .

Prosecution guidelines [9.1870] The EPA is required to develop guidelines on prosecution policy and make them publicly available (POEA Act s 16(c)). The EPA Prosecution Guidelines (2013) (available at http://www.epa.nsw.gov.au/legislation/prosguid.htm) emphasise that the laying of charges is discretionary, and that the public interest is the determining factor in deciding whether to prosecute.

There is no specific discussion in the Prosecution Guidelines of the advantages of cooperative strategies aimed at securing compliance as compared with punitive strategies based on deterrence. However, the Prosecution Guidelines do recognise "that prosecution may not always be the appropriate response" {p 3 ). The EPA's Compliance Policy contains an enforcement

According to the Prosecution Guidelines, where employees, agents or officers of a corporation commit an offence in the course of their employment, proceedings should usually be instituted against the corporation. However, where the evidence indicates that the offence has occurred outside the scope of employment, proceedings will usually be instituted against the individual and not the corporation. The fact that a company has proved its willingness to co-operate by implementing a program designed to ensure compliance with legal requirements will not help it where the program is not directly relevant to the offence actually committed. In relation to corporate officers that are being prosecuted in their capacity as a director or person involved in the management of the corporation under the corporate liability provisions contained in ss 169 - 169B (rather than as a person that committed the offence) it will be necessary to check whether the offence is one for which a corporate officer can be held liable (see [9.1540]). Those provisions set out tests relevant to when a corporate officer can be held liable. Furthermore, according to the Prosecution Guidelines, the "basic test" in NSW in determining whether to institute proceedings against a corporate officer is one of culpability {p 8). The

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"crucial issue is the person's actual control or ability to influence the conduct of the corporation in relation to its criminal conduct" (p 8). While the Prosecution Guidelines do not reflect the amendments made to the corporate officer liability provisions, this part of the policy still seems to be consistent with the wording of those new corporate liability provisions (see [9.1540]).

Prosecutions by local councils [9.1880] The amount of any fine imposed in a prosecution brought by a council is paid to the

council (Local Government Act 1993, s 694; Sutherland Shire Council v Pedy Concrete Co Pty Ltd (1992) LGRA 333). The result is a strong incentive for councils to issue penalty notices and to prosecute pollution offences.

Sentencing options Fines [9.1890] From 1989 to 2005 the maximum penalties for tier 1 environmental offences were

$1 million for corporations and $250,000 and/or seven years' imprisonment for individuals. These penalties were then increased to $5 million for corporations and $1 million and/or seven years' imprisonment for individuals when the offence is committed wilfully. However, these penalties only apply to the most serious (tier 1) offences, for which prosecutions are rare. If a prosecution is commenced in the Local Court the maximum penalty which can be imposed is $110,000 (s 215(2)), which was increased from $22,000 in February 2012.

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carry out or fund a specified project for the restoration or enhancement of the environment (s 250). For example in Environment Protection Authority v CSR Building Products Pty Ltd [2008] NSWLEC 224 the court ordered the defendant to pay an amount of $280,000 to fund part of the Parramatta River Fishways project. undergo training or set up a training course for its employees or contractors (s 250). carry out a restorative justice activity, being "any social or community activity for the benefit of the community or persons that are adversely affected by the offence" (s 250(1A); this subsection was inserted in January 2015).

A number of the alternative sentencing orders can only be made by the Land and Environment Court (ss 249 - 250). Therefore where the prosecutor intends to seek such an order the proceedings will need to be taken in that court, rather than the Local Court.

Community service orders [9.1910] For those environmental offences for which imprisonment is available, community service orders can be imposed instead (Crimes (Sentencing Procedure) Act 1999, s 8). At times community service orders have been increasingly used by the Land and Environment Court as a sentencing option instead of imprisonment. For example, in the 2009/10 financial year the court imposed community service orders in 14 matters, compared to a previous total of six matters for all other prosecutions under EPA/OEH legislation. However, no community service orders have been imposed in EPA/OEH matters since then.

Most prosecutions are for tier 2, strict liability offences. The maximum penalties for tier 2 offences vary up to $2 million for corporations and $500,000 for individuals (see [9.2500]). The highest penalty imposed for a tier 2 offence to date was a penalty of $280,000 towards an environmental project (Environment Protection Authority v CSR Building Products Ltd [2008] NSWLEC 224; see below in relation to alternative sentencing orders).

In Environment Protection Authority v Pal [2009] NSWLEC 60 the court ordered the defendant to undertake a total of 450 hours of community service and pay a total fine of $45,000. However, the defendant completed 390 hours and the balance of the community service order was later revoked on medical grounds (Environment Protection Authority v Pal (No 3) [2011] NSWLEC 194). In Environment Protection Authority v Wattke and Gerrdink [2010] NSWLEC 23 both the director and manager of a company were convicted of tier 1 waste offences and each fined $50,000 and ordered to undertake 460 hours community service, the longest order issued so far. In Environment Protection Authority v Pannowitz [No 2] [2006] NSWLEC 797 the defendant was ordered to serve 300 hours community service for significantly departing from the required words of a publication order.

Alternative penalties

Other court powers

The highest penalty imposed for a tier 1 offence for an individual to date was $250,000 plus 12 months' imprisonment (Environment Protection Authority v Gardner [1997] NSWLEC 212). The highest fine imposed for a tier 1 offence to date against a corporation was $250,000 (Environment Protection Authority v Warringah Golf Club Ltd (No 2) [2003] NSWLEC 222).

[9.1900] The POEO Act provides a wide range of sentencing alternatives (see [2.670]). For example, the court can order a convicted defendant to:

• •

pay an additional penalty that in the court's estimation amounts to the monetary benefit acquired by the offender as a result of committing the offence (s 249). No monetary benefit orders have been sought as yet. publicise the offence and its environmental consequences, or notify specified persons of the orders made (including, for example, the publication of the information in an annual report) (s 250). For example in Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280 the court ordered the defendant to publish notice of conviction in the Sydney Morning Herald, the Australian Financial Review and a local newspaper as well as pay money towards an environmental conservation project. The court has also ordered publication of an offence on a parent company's website for three months (Environment Protection Authority v Shoalhaven Starches Pty Ltd [2006] NSWLEC 685).

[9.1920] Apart from any penalty, the Land and Environment Court can order anybody convicted of a tier 1 or tier 2 offence to:

•

•

take steps to "prevent, control, abate or mitigate any harm to the environment" that has been caused (s 245(a)). For example in Environment Protection Authority v Waight (No 3) [2001] NSWLEC 126 the defendant had unlawfully operated a landfill on steep land that had collapsed, damaging a relatively pristine catchment area. He was ordered to undertake engineering and creek rehabilitation works specified in the judgment over a period extending up to 20 years. take steps to prevent the offence from continuing or happening again (s 245(c)). For example in Environment Protection Authority v Warringah Golf Club Ltd (No 2) [2003] NSWLEC 222 the golf club had caused a massive fish kill in Manly Lagoon by failing to have adequate bunding and other measures in place to keep herbicide out of the stormwater system. The club was ordered to implement corrective works. In Environment Protection

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Authority v Shoalhaven Starches [2006] NSWLEC 685 the court ordered the defendant to implement an environmental audit to prevent the recurrence of offensive odours from its wastewater system. The cost of the audit was estimated to be around $400,000. In many prosecutions, however, by the time of hearing the defendant has voluntarily undertaken preventive measures and systemic improvements, and this initiative is taken into account by the court in sentencing. pay the expenses of public authorities that have already taken steps to prevent, control, abate or mitigate harm to the environment, whether the action was taken before or after the offence was proved (ss 246(1)(a), 247(1)(a)). For example in Environment Protection Authority v Warringah Golf Club Ltd (see above) the golf club was ordered to reimburse two local councils the sum of $50,500 for their investigative and clean-up costs incurred in relation to a herbicide spill. compensate anyone who has suffered loss or damage to property or who has incurred expense in preventing or mitigating loss or damage either before or after the offence was proved (ss 246(1)(6), 247(1)(6)). For example in Environment Protection Authority v Buchanan [2009] NSWLEC 31 the court ordered the defendant to pay not only clean-up costs of $88,395 to the EPA but also clean-up costs of $375,933 to the landowners to reimburse them for costs they had incurred in removing waste from their land.

The guiding principles for the EPA in seeking the alternative sentencing orders or other additional orders are set out in its Guidelines for Seeking Environmental Court Orders (http://www.epa.nsw.gov.au/legislation/environ_courtorders.htm).

Restraining orders [9.1930] To ensure that defendants do not dispose of their assets to avoid expenses or compensation orders, an application can be made to the court at the outset for a restraining order over the defendant's property (ss 230 - 233 ). Once the court makes a restraining order, a charge is created over the property (s 236).

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under section 250. The defendant was later convicted of contempt for failing to comply with the court's orders and was fined $300,000 (Environment Protection Authority v Ramsey Food Processing Pty Ltd (No 3) [2011] NSWLEC 180; Environment Protection Authority v Ramsey Food Processing Pty Ltd (No 4) [2011] NSWLEC 246)). In Environment Protection Authority v Thaler [2005] NSWLEC 109 the defendant was fined $50,000 for breaching an injunction issued by the court in 2002 after he continued to receive lead acid batteries at his business. In Environment Protection Authority v Tsaur [2005] NSWLEC 469 the defendant was fined $35,000 (suspended for 24 months due to his bankruptcy) for breaching an injunction issued by the court in 2004 which limited the number of tyres kept on its premises. In Environment Protection Authority v Hanna [2013] NSWLEC 41 the defendant was given a three month suspended prison sentence for breaching a court order by transporting and dumping waste to a property that was not licensed to receive the waste.

Remedying the situation [9.1960] There are also remedies available to public authorities under the POEO Act without

any conviction being registered. (For possible remedies available to concerned citizens, see public participation at [9.2060)-(9.2070].)

Court enforceable undertakings [9.1970] Since 2006 the EPA has been able to accept a court enforceable undertaking where a breach of the POEO Act has occurred (s 253A). Court enforceable undertakings can now also require a restorative justice activity to be carried out (s 253A(1A)). If the written undertaking is breached the EPA can ask the Land and Environment Court to penalise the person who gave the undertaking (s 253A). As at the time of writing (July 2015) the EPA has entered into 23 enforceable undertakings. Copies of the undertakings are kept on the EPA's public register. The undertakings have included matters such as:

[9.1940] Failure to comply with a restoration and prevention order (s 245), monetary benefit order (s 249) or additional sentencing order (s 250) constitutes a tier 2 offence which carries a daily maximum penalty of $120,000 for corporations and $60,000 for individuals for every day that the offence continues (s 251).

• posting an environmental bond to secure works required by a prevention notice • restoring a creek bank following a diesel spill • implementing a willow poisoning and removal program following discharge of sediment laden water • funding a Department to reinstate tree snags in water to protect fish habitats • engaging a contractor to undertake weed control works • agreeing not to accept certain materials which may have been waste • to undertake corrective actions and pay a specified amount of money towards one or more environmental projects • implementing a training program for employees.

Contempt of court

In 2009 the EPA published guidelines about when it will accept enforceable undertakings (http://www.epa.nsw.gov.au/prpoeo/enforceableundertakings.htm).

It is an offence to knowingly contravene a restraining order, and this offence attracts a fine equivalent to the value of the property and/or two years ' imprisonment (s 238). An order cannot be made to ensure that money is available to pay fines.

Offences for failure to comply with court orders

[9.1950] Breach of orders made by a court, for example when it issues an injunction to stop

illegal conduct, may lead to contempt of court proceedings. In Environment Protection Authority v Ramsey Food Processing Pty Ltd (No 2) [2010] NSWLEC 175 the defendant was convicted of a pollute waters offence under section 120(1) of the POEO Act and was ordered by the Land and Environment Court to publicise the offence and carry out a mandatory environmental audit

Clean-up action and prevention notices [9.1980] Public authorities, such as local councils, can act immediately to clean up any form of pollution (POEO Act, s 92(2); see [9.930]) and recover their costs and expenses from the polluter (s 104(2)). Public authorities must take clean-up action if the EPA directs them to do so (s 92(1)).

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ARAs can also issue clean-up notices (see [9.930]) to:

• owners or occupiers from whose premises it is reasonably suspected that pollution 1s occurring • persons who are reasonably suspected of causing the pollution. ARAs may also issue a prevention notice directing the occupier or person carrying on the activity to take specified action to ensure that the activity is carried on in an environmentally satisfactory manner (s 96(2); see [9.960]). The Minister can, in certain circumstances issue a prohibition notice directing the occupier of the premises or the person carrying on the activity to cease doing so (s 101(2); see [9.970]).

If a person does not comply with a prevention or prohibition notice, the ARA or EPA, respectively, may take action to carry out the requirements of the notice (ss 98, 103), and recover any reasonable costs and expenses incurred (s 104(4)).

Emergencies [9.1990] The EPA may issue a clean-up notice even if it is not the ARA (see [9.930]) "if it considers that it is necessary to do so because of an emergency" (s 91(2)). The authority may also prohibit burning in open fires or incinerators under certain weather conditions, based on the opinion that failure to do so would contribute to significant air pollution (s 133).

The Minister may also intervene in serious situations by issuing a prohibition notice directing that an activity cease for a particular period of time (s 101). In similar circumstances, both occupiers and those in charge of fires on premises can be ordered by an authorised officer to extinguish them immediately (s 134). The EPA may relax legal requirements by exempting a person from specified provisions of the Act when there is an emergency, including fires, floods and fuel shortages (s 284).

P ublic pa rticipation [9.2000] One of the objectives of the EPA is to promote community involvement in environmental decisions (POEA Act, ss 3(6), 6(1)(6)). However, private citizens play only a limited role in relation to the licensing process. There is no right of appeal by private citizens against the authority's decision to grant a licence or in relation to the conditions attached to a licence, but public submissions have to be taken into account in some circumstances.

Submissions [9.2010] There is no requirement in the POEO Act for submissions to be sought by the EPA on new licence applications. Where the integrated development process under the EPA Act operates because both development consent and an environment protection licence are required (see [5.370]), members of the public can make submissions on designated development and advertised applications (see [5.970]-[5.1100]).

Many projects with high potential to pollute are both designated developments under the EPA Act and scheduled activities under the POEO Act (for which a licence is required for both

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construction and operation: see [9.670]). The EPA must consider any public submissions received in connection with a licence application, including any submissions it receives that were made under the EPA Act (POEO Act, s 45(1)). Licences are reviewed by the EPA at least every five years. The EPA is required to give public notice of that review (POEO Act, s 78). If it intends to vary a licence in a manner that will significantly increase the impact of the activity on the environment and the variation has not been the subject of environmental assessment and public consultation under the EPA Act, it must invite and consider public submissions (POEO Act, s 58(6)).

Right to information [9.2020] If a licence application is granted or refused, anyone can request a written statement of reasons from the EPA (POEO Act, s 61).

State of the environment reports [9.2030] The EPA must make a report on the state of the environment every three years (POEA Act, s 10). The authority' s online State of the Environment Reports are widely consulted sources of environmental information (http://www.epa.nsw.gov.au/soe).

Public registers [9.2040] Each regulatory authority is required to keep a public register of licence applications, certain decisions and other information (POEO Act, s 308). The EPA public register contains matters including:

• • •

details of all licence applications, conditions imposed on licences and licensing decisions, including decisions to vary, suspend, revoke or approve the surrender of a licence or its conditions details of all environment protection notices and noise control notices details of convictions in prosecutions and results in civil proceedings before the Land and Environment Court brought under the POEO Act (s 308).

Additional matters are prescribed in the POEO (General) Reg (cl 106). Members of the public may obtain a copy of any part of the register from the appropriate authority (s 309(2)). In the case of the EPA, the register is online, and copies can be printed from the EPA's website. There is also a formalised system to allow public access to self-monitoring data (s 320(3)). Licensees that have a monitoring condition relating to pollution on their licence are also required to publish the monitoring data on their website, or if they do not have a website, provide a free copy to any person that requests it (s 66(6) - see also [9.740] and [9.2090]). Orders and declarations in relation to contaminated land are also readily accessible (see [9.2670]).

The National Pollutant Inventory [9.2050] The National Pollutant Inventory is required by a National Environment Protection Measure (see [9.110]) implemented in NSW by the POEO (General) Reg (Ch 4). The inventory provides online public information on emissions (http://www.npi.gov.au). It can be searched by

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locality, substance, source or facility. The Regulatory Impact Statement prepared in 2008 as part of the review of the POEO (General) Reg noted that around 760 industrial facilities report to the National Pollutant Inventory. Of these facilities, approximately 480 have environment protection licences, of which 160 are licences which are also subject to the load-based licensing scheme.

[9.2110)

In practice, private prosecutions, as distinct from civil enforcement proceedings, are not brought by members of the public because of:

• • •

Civil enforcement proceedings by members of the public [9.2060] Members of the public can play a role in the enforcement of the legislation, through both civil proceedings and prosecutions for criminal offences.

Anybody at all can bring civil proceedings to:

• remedy or restrain a breach of the POEO Act or regulations made under the Act (s 252(1)), or • restrain a breach (or a threatened or apprehended breach) of any other Act or statutory rule

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the need to prove guilt beyond reasonable doubt the high level of scientific expertise often required to do this the fact that private individuals do not have the broad powers of investigation that officers of the EPA and councils possess under the legislation.

Practical tips on public participation

Do it early [9.2080] The best time to prevent pollution from developments is at the planning stage, by making public submissions that consent authorities must take into account in assessing rezoning proposals or development applications.

if harm to the environment is being caused or is likely (s 253(1)).

Complain to the polluter

This is the case whether or not any right of the person has been infringed (ss 252(3), 253(2)) .

[9.2090] Copies of pollution licences for existing facilities are readily obtainable from the EPA website. Licensees which have a self-monitoring condition on their licence are also required to publish the monitoring data on their website, or if they do not have a website, provide the data free of charge to any person who requests it (s 66(6)). Additionally, attached to most licences is a condition requiring the licensee to keep a record of complaints received. This record may inform the authority of the need for its intervention where complaints are substantial.

This could involve either an allegation that the EPA itself has failed to comply with procedures laid down in the Act or that somebody has committed, or is threatening to commit, an offence under the legislation. The court can make such orders as it thinks fit to remedy or restrain the breach (ss 252(6), 253(4)).

Report incidents

Criminal prosecutions by members of the public [9.2070] Private prosecutions for an offence against the POEO Act can only be brought in the Land and Environment Court with the leave of the Court (s 219(1)).

Before granting leave, the Court must be satisfied that:

• the EPA has decided not to take any relevant action or has not reached such a decision within 90 days • the EPA has been notified of the proceedings

• •

[9.2100] The public are encouraged to report pollution incidents such as smoky vehicles and littering from vehicles. The EPA website has a "reporting pollution" page that outlines the information to collect and the agency to report to (http://www.epa.nsw.gov.au). Over 12,000 reports in relation to EPA pollution matters are made to the EPA's Environment Line each year (EPA, Engaging with the Environment Protection Authority (2015), p 5).

As part of the EPA's "Hey Tosser!" littering campaign commenced in 2015 it is now issuing fines for littering based on public reports submitted to the EPA (see http://www.epa.nsw.gov.au/ heytosser). Information provided by the public in relation to other incidents also provides the EPA with a vital source of information about potential breaches.

the proceedings are not an abuse of the process of the court the particulars of the offence disclose a prima facie case (s 219(2)).

Relevant action by the EPA is not limited to situations where the EPA decides to take criminal proceedings. It also includes a decision by the EPA to take action under the POEO Act in order to require the defendant to prevent, control, abate or mitigate harm caused to the environment or to prevent the offence from continuing or occurring again (s 219(3)). What this means is that a private prosecution will not be possible where the EPA has taken some formal measures that acknowledge the· defendant's responsibility, even if they fall short of prosecution. This does not, however, include informal warnings. The Local Court, where tier 2 offences can ordinarily be prosecuted as an alternative to the Land and Environment Court (s 215), is not empowered to grant leave to bring a private prosecution.

Encourage councils to exercise their powers under the Act [9.2110] Much unnecessary pollution - for example sediment from building sites - is caused by activities that do not need a licence. Local councils should be encouraged to take action. Environmental compliance activities can be relatively inexpensive for councils to fund: costs can be offset (in accordance with the polluter-pays principle) by:

• • •

income from penalty notices (fines from tier 3 offences) administration fees from clean-up and prevention notices income from cost compliance notices.

Councils have broad powers to improve environmental management, for example by occupiers of an industrial estate, by issuing prevention notices that can require environmental improvements to be researched and implemented over reasonable, including ongoing, periods.

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Noise abatement orders

The Marine Pollution Act

[9.2120] Under the POEO Act, an occupier of any premises can make an application to the local court alleging that occupation of the premises is affected by "offensive noise" (see the definition at [9.1070]). If a local court is satisfied on the balance of probabilities that this is so, or that the noise has ceased but is likely to recur, it may make a noise abatement order directing the occupier of the premises from which the noise is emanating, or the person responsible for making it, to see that it stops and/or that it does not recur (s 268). The maximum penalty for disobeying an order is $3,300 (s 269).

[9.2150] The NSW Marine Pollution Act 2012 (MP Act) is administered by Roads and Maritime Services rather than by the EPA. It is part of a Commonwealth-State package of legislation designed to implement the terms of the Convention for the Prevention of Pollution from Ships (1973) (MARPOL) and the 1978 Protocol. The legislation covers "State waters": essentially the sea up to three nautical miles from the coast as well as the major ports and some other ports (MP Act, s 3; Marine Pollution Regulation 2014, cl 4). Discharges outside the limits of coastal waters are covered if the pollutant (or part of it) eventually enters these waters (s 13 ).

Noise abatement orders cannot be made in relation to:

• activities involving the State or other public authorities • activities of an authorised network operator, as defined by the Electricity Network Assets (Authorised Transactions) Act 2015 • a scheduled activity being carried out under an environment protection licence (s 270). It is possible that such orders could be made against industrial noise polluters which do not require a licence, although they are clearly designed to deal with noise problems from neighbours in residential districts. Where industrial noise polluters are complying with the requirements of the EPA or a local council, it seems unlikely that a court would be prepared to find that the noise emitted was offensive.

Where a local court refuses to make a noise abatement order, there is no provision for an appeal. However, where an order is granted, the noise-maker can appeal to the Land and Environment Court (s 290). The EPA website has a brochure Seeking Noise Abatement Orders {April 2013).

Nuisance [9.2130] In contrast to the power of occupiers to seek noise abatement orders, there is no equivalent provision for individuals to obtain water, land or air pollution control orders in the Local Court (eg, in relation to smoke from domestic chimneys, though local councils can now issue smoke abatement notices: see [9.1030]). But nothing in the legislation prevents a person from suing a polluter in a common law action of nuisance (see [2.160]) and, if successful, obtaining damages and also possibly an injunction (s 322). In practice, given the time and expense involved and the high standard of proof demanded, this is not a realistic solution for private citizens except in very serious cases continuing over a long period of time.

The MP Act, which commenced on 1 September 2014, replaced the Marine Pollution Act 1987. The latter Act focused on the discharge of oil and oily mixtures, and other liquid substances, from ships (wherever registered) and during transfer operations. It concentrated on matters contained in Annexes I and II of MARPOL, with the Commonwealth legislation applying to State waters in relation to the other Annexes given that no State legislation was in force in that regard (see [9.2320]). The MP Act now also covers matters in Annexes III, IV and Vof MARPOL and so also covers pollution from harmful substances in packaged form, discharge of sewage from ships, and discharge of garbage from ships. The only annex of MARPOL which the MP Act does not cover is Annex VI, which deals with air pollution. All military ships and foreign government non-commercial ships are exempted from the provisions of the legislation (Marine Pollution Regulation 2014, cl 62).

Relationship with the Protection of the Environment Operations Act [9.2160] The MP Act is not concerned with discharges from land-based sources unless these are connected with transfer operations (ss 69, 71 - 74). Discharges from land-based sources are regulated under the POEO Act, which applies to all tidal waters, including the sea.

Discharges during transfer operations can also be licensed under the POEO Act. If they are and a discharge occurs during transfer operations the offences in the MP Act in relation to transfer operations (see [9.2230]) do not apply, provided that the discharge was in accordance with the licence (MP Act, s 77). Where there is an inconsistency between the MP Act and the POEO Act, the MP Act prevails, except Part 8 of the MP Act which contains the provisions relating to transfer operations (POEO Act, s 7(3)).

Pollution by oil and noxious liquid substances

Marine pollution [9.2140] Constitutional arrangements generally mean that NSW pollution legislation only applies to the coastal sea, which stretches three nautical miles (about 5.5 km) from the coast. This is still the position, even though the Commonwealth has now extended the territorial sea from three to 12 nautical miles from the coast.

Some Commonwealth legislation also regulates pollution in the coastal sea, operating alongside the NSW legislation but overriding it in the event df any inconsistency (Coastal Waters (State Powers) Act 1980 (Cth), ss 4(2), 5(a), 7(c)).

Offences [9.2170] Where:

• •

oil is discharged from a ship into State waters; or a noxious liquid substance is discharged from a ship into State waters, and the ship "is subject to a chemical tanker construction certificate certifying the ship to carry noxious liquid substances in bulk" the following persons (including corporations) commit an offence:

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• the ship's master (ss 15(1), 29(1)) • the ship's owner (ss 15(1), 30(1)) • a crew member or person involved in the ship's operation or maintenance if their act caused the oil to be discharged (ss 16(1), 16(2), 30(1), 30(2)). The Act extends to a mixture which contains a marine pollutant specified in a particular offence, for example, a mixture containing oil or a noxious liquid substance (s 12). There have been no decisions under the MP Act at the time of writing (July 2015). However, in numerous prosecutions under the Marine Pollution Act 1997 the Land and Environment Court has held that the offences under ss 8(1) and 8A relating to discharge of oil from a ship (now ss 15(1) and 16(1) and (2) of the MP Act) are strict liability offences: see, for example, Morrison v Defence Maritime Services Pty Ltd; [2007] NSWLEC 421; Filipowski v Mediterranean Shipping Company SA [2005] NSWLEC 159; Morrison v Mahon [2007] NSWLEC 416. The offences are subject to a number of specific defences (see below).

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There are also a number of other defences in relation to noxious liquid substances. Noxious liquid substances are divided into four categories depending on their potential to cause environmental harm (Convention, Annex II, Reg 6, Appendix 1). These defences turn on such factors as:

• the category of liquid discharged • the rate and concentration of the discharge • the distance from land • the depth of water • the speed of the vessel at the point of discharge.

In some cases tanks must be washed according to specified procedures, emptied into a reception facility and diluted before discharges can occur. There are also exceptions for bilge water, clean ballast and segregated ballast (ss 40 - 41). Some liquid substances cannot be discharged into coastal waters under any circumstances. The burden of establishing any of the defences rests with the defence.

The MP Act also creates a separate offence for the person "responsible" for the discharge of the oil or noxious liquid into the State waters (ss 17, 31). Person "responsible" for a discharge is defined to mean that the (s 5): person, or another person acting under the direction of that person, committed an act that caused the discharge and the person committed the act: (a)

with intent to cause the discharge, or

(b)

recklessly and with the knowledge that the discharge would probably result, or

(c)

negligently.

These offences clearly require proof of mens rea, that is, a "guilty mind".

Defences [9.2180] There are a number of defences that apply to both oil and noxious liquid substances

discharges:

• • •

where an escape has occurred because of "unavoidable damage to the ship or its equipment", provided that "all reasonable precautions" were taken to prevent or minimise that escape after the damage occurred or discharge was discovered (ss 18, 32) where the discharge is necessary to ensure the ship's safety or to save life at sea (ss 19, 33) where the discharge is authorised to combat a specific pollution incident (ss 20, 34).

There are also a number of defences which are specific as to whether oil or a noxious substance was discharged.

• • •

In relation to oil discharges the additional defences cover: where the Minister has authorised the discharge for training purposes (s 21) defences depending on matters including the size of the ship, where it is located, whether it is proceeding en route, the concentration of oil in the discharge and pre-treatment methods used, and the type of oily mixture (s 22 - 24) clean or segregated ballast discharged from the ship's cargo area (s 25).

Retention of residues [9.2190] Sometimes it is difficult to prove that a discharge of oil has actually taken place, even

though there is evidence that oil residues that cannot be discharged under the Act have disappeared from a ship. To cover this situation, a special offence of failure to retain such residues on board while the ship is in coastal waters has been created (s 26(1)). Residues may only be discharged into specially provided reception facilities (ss 26(2)).

Pollution by harmful substances in packaged form [9.2200] Ships must not carry harmful substances in packaged form, other than in accordance with the regulations. If they do, the master, owner and person who caused it to be carried are all taken to have committed an offence (ss 43 - 44). A harmful substances is defined to mean "a substance that is identified as a marine pollutant in the International Maritime Dangerous Goods Code and includes a substance that meets the criteria in the Appendix of Annex III of MARPOL" (s 3 ). Packaged form is defined to mean "a form of containment specified for harmful substances in the International Maritime Dangerous Goods Code" (s 3 ).

There are also offences in circumstances where a harmful substance in packaged form is jettisoned from the ship. These offences can extend to masters, owners, crew members, persons involved in the ship' s operation or maintenance, and the person "responsible" (ss 45 - 47; see [9.2170]). If a substance has leaked then the Act provides that "a harmful substance in packaged form is .. . taken to have been jettisoned from a ship into State waters" (s 51). The offence provisions also apply to empty packaging in some circumstances where steps were not followed to ensure that no harmful residue remained (s 52). The provisions have no application in relation to the stores or equipment of the ship (s 50). Defences include securing a ship's safety or saving life at sea (s 48) and in certain circumstances where a leakage has occurred and the substance was washed overboard (s 49).

Sewage pollution [9.2210] If sewage is discharged from a "large ship" into State waters, both the master and owner are taken to have committed an offence (s 53(1)). A "large ship" is defined to mean a ship

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of 400 tons or more, or a ship that is certified to carry greater than 15 people (s 3 ). Crew members and those involved in the ship's operation or maintenance also commit an offence in circumstances where their act has caused the discharge (s 54). Any person "responsible" (see [9.2170]) for the sewage discharge also commits an offence (s 55). The offence in section 55 requires proof of mens rea (see [9.2170]). Various defences apply to the sewage discharge offences where:

• the sewage escape resulted from "unavoidable damage to the ship or its equipment", provided that "all reasonable precautions" had been implemented both before and after the damage happened in order to prevent or minimise sewage escaping (s 56)

• it was discharged in order to secure a ship's safety or to save life at sea (s 57) • specified treatment of the sewage has been undertaken and certain other requirements are complied with (ss 58 - 59).

Part 3 of the Marine Pollution Regulation 2014 also contains prov1s10ns to prevent the discharge of untreated and treated sewage in certain waters, as well provisions in relation to greywater and galley waste, and requirements for ships to have holding tanks for sewage.

Garbage pollution [9.2220] It is an offence to discharge garbage from any ship into State waters. The offence applies to masters and owners (s 60(1)), and crew members and those involved in the ship's operation or maintenance in circumstances where their act has caused the discharge (s 61). A person "responsible" (see [9.2170]) is also liable for a garbage discharge (s 62).

•

Defences include: the garbage escape resulted from "unavoidable damage to the ship or its equipment", provided that "all reasonable precautions" had been implemented both before and after the damage happened in order to prevent or minimise sewage escaping (s 63)

• the garbage was discharged in order to secure a ship's safety or to save life at sea (s 64) • synthetic fishing nets being accidently lost, provided that "all reasonable precautions" were in place to prevent it (s 65) • disposal in relation to floatable dunnage, lining or packing materials (other than plastics) where the ship is in specified locations (s 66).

Liability during transfer operations [9.2230] Where oil or a noxious liquid substance is discharged in connection with a transfer operation from a ship, a place on land or any apparatus or purpose-built pipeline (provided that it is on the seaward side of the first isolating valve on land: s 75), a range of people, in addition to those whose acts caused the discharge, may be guilty of criminal offences. This depends on where the discharge takes place (ss 68 - 73 ). For example, if it is from apparatus on a place on land (including an oil rig), liability extends to (s 71):

• A person that deliberately, recklessly or negligently caused the discharge • the occupier of the land • the owner of the apparatus

[9.2260)

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chapter 9 Pollution control and waste disposal

the person in charge of the apparatus. An offence is not committed where the discharge is:

• licensed under the POEO Act (MP Act, s 77), or • authorised to combat a specific pollution incident (s 76). Transfer operations between sunset and sunrise are forbidden altogether, unless permission has been first obtained (s 74).

Duty to report pollution incidents [9.2240] The MP Act places a duty on the master of the ship, and other persons in certain circumstances, to report a "reportable incident" that has occurred to the Minister in the prescribed manner "without delay" (ss 87, 90 - 91). A "reportable incident" covers matters such as discharges or probable discharges of oil or noxious liquid substances in breach of the MP Act, the actual or probable jettisoning of a harmful substance in packaged form, and where specified damage has occurred to certain ships carrying oil or noxious liquid substances or on board sewage treatment systems (s 86). Any reports about the incident provided to the Minister under the relevant provisions are only admissible in a prosecution against an individual with that person's consent (s 94). It is an offence to provide a report that is false or misleading in a material particular (s 93).

Requirement to prepare emergency and other plans [9.2250] The MP Act imposes obligations in relation to certain ships to have emergency plans that have been approved by the Minister on board the ship in relation to oil pollution and noxious liquid substances (ss 95 - 96, 100 - 101). The plans can be combined (s 99). The plans must cover matters such as the procedures for reporting the incident and notifying authorities and the action to be taken to control the discharge and pollution (ss 97, 102). The plans must be in the "working language" of the master and crew (ss 98, 103). There are also requirements for manuals to be carried on the ship covering matters such as certain cleaning operations (ss 104 - 106) and management procedures in relation to garbage (ss 107 - 109). Ships of at least 12 metres are also required to have a minimum of one placard displayed on the ship which indicates the garbage that can and cannot legally be disposed of from that ship (ss 110 - 112). The placards must be in the "working language" of the crew (s 112). Offences apply to masters and owners of ships that do not comply with these provisions.

Right to compensation [9.2260] Those who suffer loss or damage to property as a result of a prohibited discharge or prohibited jettisoning, or incur expenses in trying to prevent or mitigate it, can recover compensation from a list of specified persons (s 216(2)). The persons from whom compensation can be recovered depends on the particular discharge, but include persons such as ship owners

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and masters and persons who caused the discharge (s 216(2)). Those persons are liable to pay compensation even if they would have had a defence or excuse in relation to one of the relevant offences (s 216(1)). Certain ships carrying oil are required to have an insurance policy in place that covers potential oil discharges (ss 173 -174). If an inspector has reasonable grounds for believing a ship does not have the relevant insurance, it can be detained at port and other places (s 176).

Powers of the Minister Preventative and clean up action by the Minister [9.2270] The Minister has broad powers to:

• take action to prevent and clean up actual and probable polluting discharges and jettisoning regulated by the MP Act (s 183) • recover the costs of his or her actions from, for example (and depending on the discharge), the ship owner, master, and those responsible (s 184). The costs and expense become a charge on the ship (s 185). Offending ships can be detained until the costs and expenses have been paid or security has been provided (s 186).

Marine environment protection notices [9.2280] The Minister also has power to issue marine environment protection notices. These are very similar to environment protection notices under the POEO Act (see [9.910)). The Minister has power under the MP Act to issue:

• clean-up notices to those responsible (or reasonably suspected of causing) marine pollution incidents, or to a public authority (ss 193 - 194) • prevention notices where activities are reasonably suspected of being carried on in an "environmentally unsatisfactory manner" (ss 196 - 199) • prohibition notices to shut down an activity (or part of it) for a specified time in certain circumstances (ss 201 - 202).

Such notices can be given orally, but must be confirmed in writing within 72 hours or they cease to have effect (s 192). It is an offence to fail to comply with marine environment protection notices (ss 193(4), 198, 202). In the event that a notice is not complied with, the Minister can take action to ensure that the requirements of the notice are carried out (s 203 ). As with the POEO Act, there are various provisions in the MP Act to allow for the recovery of costs relating to marine environment protection notices. This reflects the polluter pays principle. These include:

• administrative fees to cover the costs of issuing clean-up and prevention notices (ss 195, 200) • provisions for public authorities and other persons that have cleaned up pollution, but were

(9.2320)

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chapter 9 Pollution control and waste disposal

power for the Minister to recover reasonable costs and expenses in carrying out action required under a notice that was not complied with (s 205(3)).

Detaining ships [9.2290] Persons authorised by the Minister also have power to detain ships in specified circumstances where a discharge or jettisoning of marine pollutants has occurred and to require security to be provided before the ship is released (ss 221 - 225).

Proceedings and penalties for offences [9.2300] The maximum penalty under the MP Act varies depending on the offence. For a number of the more serious offences, such as illegal oil discharges by a master or owner of a ship (s 15(1)), the maximum penalty is $10 million for a corporation and $500,000 for an individual. For some offences there is also an option of imprisonment.

Prosecutions can be taken in either the Local Court or the Land and Environment Court (s 234(1)). The Local Court has a jurisdictional limit of $55,000 or two years imprisonment (s 234(2)). Criminal prosecutions for offences under the MP Act can be commenced by any person, including police officers and staff of Roads and Maritime Services (Ports and Maritime Administration Act 1995, ss 3, 103 ). In practice, criminal prosecutions are generally taken on behalf of Roads and Maritime Services (and its predecessors) or Port Corporations. The costs and evidentiary requirements involved make it impractical for members of the public to take prosecutions. In Newcastle Port Corporation v MS Magdalene Schiffahrtsgesellschaft MBH [2013] NSWLEC 2010 the ship owner was prosecuted under s 8(1) of the Marine Pollution Act 1987 and fined $1.2 million in relation to an oil spill that had occurred in Newcastle harbour while the ship was berthed and one of its tanks was deballasting. Oil had leaked into the ballast tank, possibly over a number of weeks, due to a hole that had formed between the ballast tank and oil tank (at [32)-[34]). About 72,000 litres of oil was involved in the incident and clean-up of the incident cost $1.9 million (at [25), [30)).

Oiled Wildlife Core Network [9.2310] The MP Act also requires the Minister to set up an Oiled Wildlife Care Network whose function is to "act as a consultative committee to advise on marine pollution response preparedness" (s 189(4)). Members of the network must be from organisations which have interests or involvement with wildlife protection in relation to contamination by marine pollutants. This includes persons from organisations such as providers of care and rehabilitation to wildlife, zoos, universities, or emergency services or other regulatory agencies (s 189).

Role of the Commonwealth

not the actual polluter, to recover their costs from the polluter and, in the case of public authorities, from the occupier of premises (ss 193(3), 205(2))

The Prevention of Pollution from Ships Act

and ensuring compliance with notices (s 205(1))

[9.2320] Like the NSW MP Act, the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) is aimed at fulfilling Australia's obligations under the MARPOL Convention

• power for the Minister to recover reasonable costs and expenses in relation to monitoring

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([9.2150]). The Commonwealth legislation is, however, "rolled back" and no longer applies in the three-nautical-mile coastal sea where State laws, such as the MP Act, implement the terms of the Convention (see, for example, Protection of the Sea (Prevention of Pollution from Ships) Act 1983, ss 9, 11, 21, 22, 26AB, 26D, 26F). The MP Act now covers matters relating to Annexes 1-V of MARPOL, but not Annex VI (see below). This means that where a State provision covers matters under MARPOL specified in the Commonwealth provisions, the Commonwealth provisions no longer apply. The Commonwealth provisions will, however, continue to apply in the remainder of the NSW territorial sea, which has now been extended to 12 nautical miles from the coast, as well as to Australian ships wherever they are found. Other provisions in the Commonwealth Act have not been rolled back because there is, at present, no equivalent NSW legislation in place.

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exploration, mining and offshore processing of seabed minerals (s 5).

Permits [9.2350] Wastes and other matter is prohibited from being exported or loaded for dumping or incineration, or dumped or incinerated or loaded onto an artificial reef in the territorial sea, except (where applicable) in accordance with a permit (ss l0A- E). Before deciding whether to grant a permit under the Act, the Minister can require the applicant to enter into an agreement for additional research on the likely impact on the marine environment. This is to be carried out by the applicant or at the applicant's expense (s 18(4)). The environmental assessment provisions of the Environment Protection and Biodiversity Conservation Act 1999 may apply to the granting of a permit (Sea Dumping Act, s 19(3), (4); see Chapter 7). A broad range of factors spelt out in Annex 2 of the London Convention must be taken into account before a decision on whether to grant a permit is made (s 19(5)). Ongoing research and monitoring of permitted dumping may be required (s 19(9)).

It is anticipated that NSW will legislate in due course to implement aspects of Annex VI of the MARPOL Convention which was incorporated into Part IIID of the Commonwealth Act in 2007. These MARPOL provisions set limits on the emission of nitrogen oxides from marine diesel engines, require ships to avoid using fuel exceeding a specified sulphur content, prohibit the deliberate emission of ozone depleting substances, and prohibit the incineration of certain products on board ships.

Permits may be varied, suspended or revoked for breach, or "if it is necessary or expedient to do so in order to properly regulate the activities" covered by the legislation (s 20). Conditions can be added or varied at any time (s 21).

The Protection of the Environment Operations (Clean Air) Amendment (Cruise Ships) Regulation 2015 introduced requirements into the Protection of the Environment Operations (Clean Air) Regulation 2010 in relation to the use of low sulphur fuel by cruise ships:

[9.2360] There is provision for the Minister to "roll back" the provisions of the Sea Dumping Act once there is satisfactory State legislation in place, by declaring that many of the Act's regulatory provisions no longer apply to the NSW coastal sea (excluding those relating to radioactive substances) (s 9). There is currently no such State legislation in place.

• •

as of 1 October 2015 any cruise ship which is berthed in Sydney Harbour must use low sulphur fuel (having a maximum of 0.1 % sulphur content) during the time that it is berthed (cl 78B); and from 1 July 2016 the requirement for the use of low sulphur fuel will also apply at any time that a cruise ship is within Sydney Harbour, ie whether berthed or not.

A number of defences and exceptions apply. An application can be made to the EPA for approval to use an alternate method to reduce pollution (cl 78M).

The Seo Dumping Act [9.2330] Another piece of Commonwealth legislation - the Environment Protection (Sea Dumping) Act 1981 (Sea Dumping Act) - regulates:

• •

the dumping of "wastes" and "other matter" into the sea from ships, aircraft and platforms the incineration of wastes and other matter on ships or platforms at sea.

The legislation implements Australia's international obligations under the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1972) (the London Convention).

Exemptions [9.2340] There are some significant exemptions from the provisions of the Sea Dumping Act, covering:

•

the Defence Forces (s 7)

Potential roll back

Defences [9.2370] There are limited defences to charges of illegal dumping, including emergency situations where there is a threat to human life or the safety of a vessel or aircraft (s 15(3)).

Enforcement [9.2380] Any person whose use or enjoyment of the marine environment is likely to be adversely affected by a breach of these provisions can apply for an injunction (s 33). The authorities can take remedial action where there is a threat of harm to human or marine life from dumping, and costs can be recovered from those responsible on conviction of a criminal offence (ss 16, 17).

Waste management [9.2390] Initial legislation dating from the 1970s was concerned mainly with the management of landfills. In 1995, NSW enacted more ambitious legislation aimed at waste stream minimisation State-wide, not just disposal in the Sydney region. The Waste Minimisation and Management Act 1995 (now repealed) set a 60% waste disposal reduction target by 2000, measured in terms of kilograms of waste per person and based on 1990 disposal rates. It established a State Waste Advisory Council and regional waste boards. The legislation enabled industry waste reduction plans to be negotiated or, in the absence of industry co-operation, imposed. Four such plans were negotiated, in relation to dairies, tyres, beer and soft drink, and used packaging material.

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The Waste Avoidance and Recovery Act [9.2400] Only six years after the Waste Minimisation and Management Act 1995 established a new waste management framework and institutional structure, it was repealed by the Waste Avoidance and Resource Recovery Act 2001 (NSW). The new Act replaced the State Waste Advisory Council and the waste boards with Resource NSW, intended to be an independent waste advisory body. In 2003 all reference to Resource NSW was removed from the Act, and waste planning functions are now the responsibility of the EPA.

The fate of the industry waste reduction plans (9.2410] The repeal of the Waste Minimisation and Management Act 1995 brought with it the repeal of three of the four industry waste reduction plans - those relating to the dairy, tyre, and soft drink and beer industries - as transitional arrangements for these plans were not made. Section 39 of the 1995 Act had enabled the EPA to enforce plans by issuing a warning notice on a non-complying industry, then prosecuting or issuing a penalty notice for further non-compliance. The authority failed to fully exercise these powers. The rise and fall of the industry waste reduction plans illustrates how co-regulatory or modified self-regulatory, industry-led environmental programs will fail if regulatory agencies do not enforce breaches. The abandonment of the industry waste reduction plans represented a significant regulatory failure. Only the Used Packaging Materials Industry Waste Reduction Plan survived under the Waste Avoidance and Resource Recovery Act 2001 (until 1 July 2006: Schedule 4, cl 12). This has now been fully replaced by voluntary national waste reduction programs, notably the National Packaging Covenant which was in place until 30 June 2010 and replaced from 1 July 2010 by the Australian Packaging Covenant. Over 900 organisations participate in this program, including State and local government, industries and industry associations, and community groups. The Australian Packaging Covenant was due to expire on 1 July 2015, but has been extended until 1 July 2016. The covenants target away-from-home recycling, improved design to minimise packaging, litter reduction and product stewardship across the supply chain.

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• accreditation of voluntary product stewardship arrangements (Part 2); • a co-regulatory approach to product stewardship implemented through regulations which will apply to specified manufacturers, importers, distributers and product users (Part 3); and • mandatory product stewardship implemented through regulations (Part 4). The Minister is required to publish a list each year which sets out products that will be considered in the forthcoming year for accreditation schemes or regulation under the Act (s 108A(l)}. The States and Territories provide details of problematic wastes each year. For 2015-16 the products to be considered are waste architectural and decorative paint and end-of-life batteries weighing less than five kilograms (see http://www.environment.gov.au/ protection/na tional-waste-policy/product-stewardshi p/legislation/product-list-2015-16). In 2011 a co-regulatory approach to product stewardship for televisions and computers was introduced by the Product Stewardship (Televisions and Computers) Regulations 2011 (Cth). The Department of the Environment decided not to implement measures in relation to end-of-life domestic fridges and air-conditioners on the basis that a product stewardship approach was not supported by a cost benefit analysis (see http://www.environment.gov.au/protection/nationalwaste-policy/product-stewardship/projects). Voluntary product stewardship arrangements that have been accredited under the Act include MobileMuster for recycling of mobile phone parts and FluroCycle in relation to recycling of mercury-containing lamps. States and territories are still permitted to have legislation addressing product stewardship, provided that it is "capable of operating concurrently" with the Commonwealth legislation (Product Stewardship Act 2011 (Cth), s 9).

Waste strategies

The EPA must publish annual priority statements regarding the products it wishes to target for schemes (s 18).

(9.2430] Under the Waste Avoidance and Resource Recovery Act 2001, the EPA must develop waste strategies for NSW and update these at least every five years (s 12). It can request local councils to report on any non-compliance with its current waste strategy (s 14 ). The strategy for 2014-2021 aims to increase recycling of municipal waste from a baseline 52 % to 70% in 2021-22; increase recycling of commercial and industrial waste from a baseline 57% to 70% in 2021-22, and increase recycling of construction and demolition waste from a baseline 75% to 80% in 2021-22. Other key objectives include reducing waste generation, decreasing the amount of waste that goes to landfill, enhancement of drop-off programs in relation to "household problem wastes", reducing the amount of litter, and reduction of illegal dumping activities (Environment Protection Authority, NSW Waste Avoidance and Resource Recovery Strategy 2014-21 (2014) available at http://www.epa.nsw.gov.au/resources/wastestrategy/140876WARR-strategy-14-21.pdf).

Target industries are on notice to take early voluntary action to reduce the volume and impact of their wastes, or risk the implementation of a mandatory scheme.

Waste levies

In 2011 the Commonwealth Product Stewardship Act 2011 commenced. The Act aims to reduce the environmental impact of products, and substances within them, during their lives and to reduce the health and safety impacts on humans of substances within the product during its life (s 4(1)). The Act provides for three different approaches to product stewardship:

(9.2440] Levies on waste disposal provide an important incentive for waste avoidance and resource recovery, as well as funding for improved waste management initiatives (Protection of the Environment Operations (Waste) Regulation 2014 (NSW), Pt 2). The waste levy applies to local government areas within the Sydney metropolitan area, lllawarra, Hunter, central and

Extended producer responsibility schemes [9.2420] The Waste Avoidance and Resource Recovery Act 2001 replaced industry waste reduction plans with extended producer responsibility schemes. These schemes are intended to encourage producer responsibility for the life of a product, including the post-consumer stage (s 15).

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north coast, Blue Mountains, Wingecarribee and Wollondilly. The waste levy varies depending on where the waste is generated and disposed of. The Regulation differentiates between the:

• •

metropolitan levy area, which includes council areas in the Sydney metropolitan area as well as other council areas such as Cessnock, Gosford, Kiama, Lake Macquarie, Maitland, Newcastle, Port Stephens, Shellharbour, Shoalhaven, Wingecarribee, Wollongong and Wyong; and regional levy area, which includes council areas such as Ballina, Blue Mountains, Coffs Harbour, Great Lakes, Lismore, the Upper Hunter and Wollondilly.

The waste levy for 1 November 2014 (when the Regulation commenced) to 30 June 2015 was $120.90 per tonne for waste disposed of or generated in the metropolitan levy area and disposed of anywhere else in NSW, or $65 .40 per tonne for waste disposed of in the regional levy area provided the waste was not generated in the metropolitan levy area, in which case that rate applies (Protection of the Environment Operations (Waste) Regulation 2014, ell 7, 11 - 12). These amounts are indexed annually and for 2015-16 the rates are $133.10 and $65.40, respectively. Different rates apply to certain types of waste, such as trackable liquid waste and virgin excavated material. Funding from the waste levy has been applied to programs such as the City and Country Restoration program and the $465. 7 million "Waste Less, Recycle More" initiative which is currently running over a five year period (see http://www.epa.nsw.gov.au/wastestrategy/wasteless-recycle-more.htm).

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categorised as designated development (see [5.330]). However, a range of waste management facilities are declared to be State significant development under the State Environmental Planning Policy (State and Regional Development) 2011 and applications for development consent are dealt with under the special provisions relating to this category of development (see [5.2700]).

Licensing of waste facilities [9.2460] Waste facilities must be licensed under the POEO Act (see [9.670]). In the case of putrescible waste landfill sites a person who is not a public authority may hold a licence only if a public authority holds a supervisory licence in respect of the facility (s 87).

Transporting waste [9.2470] Anyone transporting waste must hold a licence under the POEO Act if they transport a load which contains over 200 kilograms of "trackable waste" in the load (POEO Act, Sch 1, Pt 2, cl 48). For the purposes of the licensing requirements in the POEO Act, "trackable waste" is defined by cl 3(1) of the Protection of the Environment Operations (Waste) Regulation 2014 (see POEO Act, Sch 1, Pt 2 cl 48 (4)). The EPA website contains detailed information about tracking requirements when transporting waste (http://www.epa.nsw.gov.au/wasteregulation/transportwaste.htm).

Domestic waste collection

Further information on the waste levy, including the waste levy guidelines, is on the EPA's website: see http://www.epa.nsw.gov.au/wasteregulation/waste-levy.htm.

[9.2480] The powers of a council to arrange for the provision of garbage collection services falls within the general power to provide services and facilities, and carry out activities, appropriate to the current and future needs of its local community (Local Government Act 1993, s 24) .

Waste facilities

A council is required to make and levy an annual charge for the provision of domestic waste management services (Local Government Act 1993, s 496).

[9.2450] Previously the Waste Recycling and Processing Corporation (a State-owned corporation trading as WSN Environmental Solutions ("WSN")) operated waste facilities (Waste Recycling and Processing Corporation Act 2001, s 6). In practice, WSN operated in the Sydney region, and local councils operated or regulated private landfills in the rest of NSW. The Waste Recycling and Processing Corporation Act 2001 was repealed by the Waste Recycling and Processing Corporation (Authorised Transaction) Act 2010. The latter Act provided for WSN to be sold off to the private sector (s 4 ), which it subsequently was. The Waste Assets Management Corporation (WAMC) was also created as a statutory corporation by the Act (s 16(1)). It is a NSW Government agency (s 16(2)), which has taken over some of WSN's assets for the purpose of managing them, or developing any land assets "for any purpose for the benefit of the State" (s 16(3)). WAMC mainly manages former waste facilities that are now closed. It is also involved in projects for the redevelopment of former waste sites, for example, for recreational uses such as a bike park on the site of the former Belrose Waste Management Centre (see http:// www.wamc.nsw.gov.au).

Waste offences Tier 1 waste offences [9.2490] The most serious waste offence under the POEO Act is the tier 1 offence of "wilfully or negligently disposing of waste in a manner which harms or is likely to harm the environment" (s 115(1); see [9.1110]). The owners of waste also have special responsibilities to ensure that it is not illegally dumped. They will also be guilty of a tier 1 offence under s 115(1) unless they can show that:

• •

illegal dumping was due to causes over which they had no control, and they took "reasonable precautions and exercised due diligence" to prevent it (s 118).

Waste facilities must conform to the requirements of the EPA Act and any relevant environmental planning instruments, together with the licensing requirements of the POEO Act (see below).

Tier 2 waste offences

Under Schedule 3 of the Environmental Planning and Assessment Regulation 2000, waste management facilities or works that dispose of, sort, store or process solid or liquid waste are

[9.2500] It is a tier 2 offence for a person to transport waste to a place that cannot lawfully be used as a waste facility for that waste (POEO Act, s 143). The onus is on the defendant to prove

Illegal dumping

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that a dump site can lawfully be used as a waste facility (s 143(2)). This requires the defendant to show that all necessary approvals or permissions have been obtained; for example, that the receipt of waste is permitted under the EPA Act and the POEO Act (see Environment Protection Authority v Hardt [2006] NSWLEC 438 at [97]; The Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd [2012] NSWLEC 45 at [153]-[154]; Mouawad v The Hills Shire Council [2013] NSWLEC 165 at [157]), and that the landowner agreed to accept the waste.

$240,000 for individuals for this knowledge offence. Furthermore, a penalty option of imprisonment for individuals, of up to 18 months, was also introduced for this offence. Along with the new repeat waste offences for which imprisonment is also an option (see [9.2530]), these amendments to the waste provisions made imprisonment available for the first time for tier 2 offences.

If the transporter is not the owner of the waste, the owner is also guilty of an offence if they cannot establish that (s 143(3)):

• • • •

• •

the offence was due to causes over which they had no control, and all reasonable precautions and due diligence was exercised to prevent it.

The transporter or waste owner can defend eventual claims that the destination landfill is illegal by obtaining an approved notice from the landfill occupier or owner (s 143(3A)). Whether or not something is "waste" in terms of being an "unwanted" or "surplus" substance is determined subjectively by reference to whether the substance was "unwanted" or "surplus" to the person that was the owner immediately prior to transportation (Shannongrove Pty Ltd v Environment Protection Authority [2013] NSWCCA 179; Environment Protection Authority v Terrace Earthmoving Pty Ltd [2013] NSWCCA 180). In the Shannongrove case a waste facility operator had contracted a waste transporter to dispose of a liquid by-product. The fact that the transportation of the substance may become part of the business of the waste transporter once loaded and that the substance may have beneficial agricultural value at the location to which it is transported, and was therefore "wanted" by the transporter and landowner that had accepted the waste, did not change the fact that it was "surplus" or "unwanted" by the generator of the waste. It therefore fell within the definition of "waste" in the POEO Act (Shannongrove Pty Ltd v Environment Protection Authority [2013] NSWCCA 179). In the Terrace Earthmoving case the defendant company carried out demolition and excavation work. It would sort the demolition and excavation material, which was unwanted by the landowner, into what was considered to be "rubbish" and material such as concrete, bricks, tiles, soil and rock. In relation to the offences charged, this latter material was transported to a separately owned property to be used as road-base for a road that that landowner wanted constructed. As the landowner of the demolition site did not have a "continuing use for the material", it constituted waste. The fact that the waste transporter or person where the waste was transported to "wanted" the waste did not mean the substance was not waste, nor did the fact that it would be re-used or recycled at that place (Environment Protection Authority v Terrace Earthmoving Pty Ltd [2013] NSWCCA 180).

Operating an unlawful landfill [9.2510] The owner or occupier of any land that cannot lawfully be used as a waste facility and who causes or permits the land to be used for that purpose is also guilty of a tier 2 offence (s 144).

False or misleading information about waste [9.2520] Since 2006 it has been a tier 2 offence to supply, or cause or permit to be supplied, false or misleading information about waste (s 144AA(l)). In October 2013, as part of a number of amendments made to deal with illegal waste disposal, a new offence provision was introduced in relation to circumstances where information has been provided and the person knew that the information was false or misleading in a material respect (s 144AA(2)). The maximum monetary penalty doubles (compared to the s 144AA(l) offence) to $500,000 for corporations and

Examples of information that may fall within these offences includes information regarding: the type of waste the classification or quantity of the waste what has been done or is proposed to be done with the waste what the hazards associated with the waste are (s 144AA).

In Environment Protection Authority v Aargus Pty Ltd [2013] NSWLEC 19 the defendant company and two of its employees were each charged with two offences under s 144AA(l) regarding false information supplied to a landowner in a soil classification report and asbestos clearance certificate. The company was fined a total of $30,000, ordered to publicise the offence and pay the EPA's investigation costs. One employee was fined a total of $9,000 and the other a total of $6,000. Repeat waste offences [9.2530] In October 2013 a new "repeat waste" offence was introduced. This offence is committed where a person has already been convicted of a "waste offence" in the past five years and the person commits another "waste offence" (s 144AB(2)). A "waste offence" extends to include not just waste offences, but also water and land pollution offences. "Waste offences" are defined to mean (s 144AB(l)):

• • • •

s 120 water pollution offences in circumstances where the waters have been polluted by waste; pollute land offences (s 142A(l)); unlawful waste transportation and dumping (s 143(1)) unlawful use of land as a waste facility (s 144(1)).

If the person is convicted of a repeat waste offence the maximum fine available is that which is available for the particular "waste offence" committed ie water pollution, land pollution etc. The person can also be imprisoned for a maximum of two years (s 144AB(2)). Repeat waste offences can only be taken in the Land and Environment Court (ss 144AB(5), 215). There have been no prosecutions under this provision as at July 2015.

Tracking and seizing waste vehicles [9.2540] The EPA has also been given power to require a GPS tracking device to be installed, used and maintained on waste transportation vehicles (s 144AC(l)). It is an offence not to comply or to tamper with such devices (s 144AC(2)). There is a right of appeal to the Land and Environment Court against a notice requiring such a device to be installed (s 289A). Powers were also inserted to allow for the seizure and forfeiture of vehicles and vessels used in connection with repeat waste offences. This gives the EPA and the Land and Environment Court power to take away the means by which offenders can continue to illegally dump waste. Where the EPA has reason to believe that a motor vehicle or vessel was used in order to commit a "repeat

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waste offence" (including where "there are reasonable grounds for believing" a person has committed a repeat waste offence), the EPA has power to seize that vehicle or vessel (ss 210A- 210B). If the person is then prosecuted and convicted of a repeat waste offence in the Land and Environment Court, the Court has discretion to order that the seized vehicle or vessel must be forfeited (s 210C(l)). Such an order cannot be made if the Court is satisfied that either the owner had not given permission to use the vehicle or vessel or "that its owner did not have reasonable cause to suspect that the motor vehicle or vessel would be used to commit the offence" (s 210C(2)). A vehicle or vessel that is forfeited becomes State property and the EPA has power to sell or otherwise dispose of it, subject to any provisions in the regulations (s 210E). The EPA is required to return a vehicle or vessel if:

• it has not commenced a criminal prosecution for the repeat waste offence in the Land and Environment Court within 28 days; • the court dismisses such a criminal prosecution without convicting the offender; or • where the person is convicted, no order is made by the court to forfeit the vehicle or vessel (s 210D(l)). The EPA also has discretion to return a vehicle or vessel in circumstances where there is a dispute about the seizure. However, the person must provide the EPA with security to cover its value in case forfeiture occurs (s 210D(2)). The EPA also has discretion to return a vehicle or vessel, even in circumstances where it has been forfeited. It may be returned subject to such conditions as the EPA thinks fit (s 210D(3)).

Littering [9.2550] Depositing litter in a public place or an open private place is an offence (s 145). If the waste is deposited on land in a position where it is "likely to fall, descend, be washed, be blown or percolate" into waters, it can be treated as a tier 2 offence of polluting waters (POEO Act, Dictionary, s 120). It is an offence to leave junk mail under vehicle windscreens, or anywhere other than in a mail or newspaper box or under a door to premises (ss 146A- B).

If litter is dropped from a vehicle, the owner or driver of the vehicle is deemed to have littered unless they make a statutory declaration disclosing the name and address of the person responsible (s 146). Citizens can report littering from vehicles to the EPA for investigation in the manner set out on the EPA's website (see [9.2100]). The website contains considerable information and resources from various NSW litter campaigns. Periodic littering campaigns have led to a spike in enforcement action. For example in 2007-2008 councils issued more than 22,500 littering penalty notices, significantly up from the usual annual number of around 6,000 to 7,000 per year for all types of environmental offences.

Declared chemical wastes [9.2560] Special provisions for controlling the movement, storage and disposal of "chemical wastes" are contained in the Environmentally Hazardous Chemicals Act 1985. At the time of writing (July 2015) reforms have been proposed to the Act in order to modernise the legislation

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and to ensure it works better with the Commonwealth scheme for regulating chemicals. The reforms are currently at the discussion paper stage (EPA, Proposed Reforms to Environmentally Hazardous Chemicals Legislation: Discussion Paper (2015)). The legislative provisions at the time of writing are discussed below. The Act is administered by the EPA, assisted by the Hazardous Chemicals Advisory Committee (which includes a member representing the interests of environmental protection). In addition to specific functions under the Act, the committee is responsible for investigating incidents involving the contamination of the environment by chemicals and chemical wastes (s 7(1)(d)). However, the Committee is considered to be "obsolete" and has not met formally since 2003 (EPA, Proposed Reforms to Environmentally Hazardous Chemicals Legislation: Discussion Paper (2015) pp 6, 11). For the provisions relating to chemical wastes to come into operation, the EPA must first make an announcement in the Gazette, declaring that a chemical substance is a chemical waste (at which point it becomes a declared chemical waste). It can do this if it is satisfied that the substance is already being, or is likely to be, "stored in accumulating deposits or dumped or abandoned or otherwise dealt with as chemical waste" (ss 10(1), 3(1)). There is no requirement for the waste to be toxic or otherwise hazardous, but in practice this will be the basis on which decisions are made. Radioactive waste is specifically excluded from the provisions of the Act, and there is a discretion to exclude other kinds of chemical waste (s 3(1)). Disposal of regulated material requires the consent of the Chairperson of the EPA under clause 34 of the Radiation Control Regulation 2013.

Chemical control orders [9.2570] Even after a substance has been declared to be a chemical waste, controls do not automatically come into operation. The EPA first has to make a chemical control order. It can decide to do this without first carrying out a full scientific and environmental assessment ([9.290]). It must, however, have reasonable grounds for believing that a chemical control order "is necessary to prevent or minimise any adverse effect on the environment" resulting from such activities as processing, keeping, transporting or disposing of the waste (ss 22(1), 3(1)). In other words, it is not sufficient for the EPA to believe that an order is needed; it must be able to back this up with objective data, even if it has not carried out a full assessment. This is reinforced by the requirement that a chemical control order can only be made on the recommendation of the Hazardous Chemicals Advisory Committee or, alternatively, with the Minister's consent (s 22(2)). There are no provisions allowing members of the public to initiate the procedures leading to the declaration of a chemical waste or the making of a chemical control order.

Five current chemical control orders [9.2580] Chemical control orders were originally intended to address stockpiling of chemical wastes that posed a threat to the environment (eg, aluminium smelter wastes) and substances which are highly persistent, bioaccumulative and toxic (such as PCBs, dioxins). As at July 2015 the following chemical control orders have been made in relation to wastes:

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an offence under the Act has been committed, or a provision of the chemical control order has been breached (s 31). Conditions can be attached at any time, and subsequently varied (ss 28(4), 32(1 )) .

Polychlorinated biphenyl (PCB), 1997 Scheduled chemical wastes, 2004 Organotin waste materials, 1989.

Summaries and the text of the orders are available from the chemicals page of the EPA website (http://www.epa.nsw.gov.au/pesticides/CCOs.htm). The chemical control orders are currently being reviewed.

Anyone "aggrieved" by a decision to reject a licence application, vary, suspend or terminate a licence, or attach particular conditions can appeal to the Land and Environment Court (s 39), and the decision has no effect until the appeal has been heard (s 42(1)). Objectors to the grant of a licence do not have any right of third-party appeal where the EPA decides in favour of an applicant.

Assessment of activities involving declared chemical wastes

What a chemical control order does [9.2590] A chemical control order can:

• absolutely prohibit specified activities in relation to a declared chemical waste • prohibit the activities unless they comply with generally applicable conditions, or • prohibit the activities unless they are individually licensed and comply with

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conditions (ss 22, 24).

[9.2620] Where a waste has been declared and a chemical control order made, those engaged in activities relating to that waste may find their activities completely prohibited, or they may have to go to the trouble of trying to obtain a licence. An application can be made to the EPA for an assessment of any specific activity in relation to a declared chemical waste that is either absolutely prohibited or can only be carried out under licence (ss 13(1), 15(1)). It must carry out the assessment (s 15(1)), after first advertising its intention and inviting submissions (s 19).

There is no reason why the order should not adopt different approaches to different activities (eg, forbidding disposal while licensing storage (ss 24(1), 3(1)).

The EPA must consider the likely effect on the environment of the activity that is the subject of the assessment (s 17(1)). "Environment" is defined to include "all aspects of the surroundings of human kind, whether natural or artificial and whether living or inanimate" (s 3(1)).

Appeals

The EPA has broad powers to require the applicant to submit relevant information (ss 13, 16, 27), and it can also take into account any information supplied by anybody else if it considers it to be reliable and relevant (s 17(3)).

[9.2600] Anyone who objects to the making of a chemical control order can appeal to the Land and Environment Court on the basis that either:

• •

the order was made on erroneous grounds, or taking into account all the circumstances, the particular order ought not to have been made (s 38).

The order has no effect until the appeal is decided, unless it has been classified as an emergency order (ss 42, 25).

Licensing in relation to chemical wastes [9.261 0] In practice, most chemical control orders provide for the licensing of specified activities, including storage, processing, transportation and disposal. They indicate the conditions to be included in licences (including performance bonds), and some also lay down generally applicable standards relating to such things as method of storage and transportation, and labelling. Occasionally there is an absolute prohibition (eg of the disposal of dioxin-contaminated waste). Licences are issued at the discretion of the EPA (s 28(4)). Before making a decision, the authority can, if it choqses, advertise the application in the Gazette, but it does not have to do so (s 28(2)) . Licences can be issued on a long-term basis or for temporary purposes where the authority believes this to be appropriate (ss 29, 30). Licences can be temporarily suspended or withdrawn altogether if:

Factor s for a ssessme nt [9.2630] A number of factors that the EPA can take into account in making its assessment are spelt out in the legislation (s 17(2)). These include:

• any tendency of the chemical substance to produce harmful effects in organisms or biological systems in the short or long term, including genetic effects • any tendency for the substance to damage soil or other physical features • the degree, rate and duration of exposure to which organisms, biological systems or physical features are subjected, or likely to be subjected • where adverse effects are likely to result from exposure, safeguards that might be used to prevent or reduce exposure • where the authority believes the activity is likely to have adverse environmental effects, whether: - the substance can be safely treated and disposed of - there are alternatives to the substance or activity in question.

The EPA can also take into account any other matters it believes to be relevant "to the public interest and the protection of the environment". The EPA has only 60 days in which to complete its assessment and make a decision (s 37(1), Environmentally Hazardous Chemicals Regulation 2008, cl 7). If it fails to do so, the applicant

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can appeal to the Land and Environment Court (s 37(1); Environmentally Hazardous Chemicals Regulation 2008, cl 8). The Court can, however, give the authority more time to complete the assessment (s 37(2)).

Procedure ofter assessment [9.2640] The Act is quite unclear about the procedure to be followed once the assessment has been completed. In this situation, a chemical control order prohibiting or regulating the assessed activity already exists, and nothing is said of what is to happen to this order. There is no provision for revocation, but it may be treated as having expired (it is noted thats 43(2) of the Interpretation Act 1987 contains a general power to amend or revoke an order made under an Act). All the Act says is that, following the assessment, the EPA may either make a chemical control order or decide not to make one (s 20). If the authority simply decides to leave things as they are, it may be that it will still have to make a new order. At this point, the controls in the chemical control order can be tightened, or prescribed activities can be prohibited on the recommendation of the Hazardous Chemicals Advisory Committee or with the Minister's consent (s 22), although this will not affect those operating under existing licences until the licence term is over (s 24(2)). Alternatively, on the Committee's recommendation, the controls can be relaxed; for example, rather than the activity being prohibited absolutely, it may be allowed subject to compliance with a licence (ss 23, 24), or there may be a generalised permission subject to compliance with generally applicable conditions. A final possibility is that the EPA will decide not to make any order at all (s 20(d)).

Third-party appeals [9.2650] Whether it decides to make a chemical control order or not, the EPA must announce its decision in the Gazette and also make clear its reasons for reaching its decision (s 21). After that, an appeal to the Land and Environment Court can be made by those who object to an order and also those who are dissatisfied with a failure to make an order. Those opposed to the activity can appeal on the grounds that the decision rests on an erroneous assessment. Even if they are satisfied with the assessment, they can still appeal against the authority's refusal to make a chemical control order, or against the terms of any order which has been made (s 38(1)). The court has wide powers, including the power to make a chemical control order or to substitute a different one (s 38(2)).

Penalties [9.2660] Corporations committing offences under the legislation can be fined up to $137,500 (ss 54 ). The maximum fine for individuals is $66,000. The criminal and civil proceedings provisions contained in Chapter 8 of the POEO Act also apply to the Environmentally Hazardous Chemicals Act 1987, with some exceptions regarding who can institute criminal prosecutions (POEO Act, s 213). Prosecutions can be brought by the EPA. Prosecutions may also be instituted by any other person in the Land and Environment Court with the Court's leave (POEO Act, s 219), provided that:

•

the EPA has made a decision not to take any action, or 90 days has elapsed without such a decision being made;

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the person has notified the EPA of the proceedings; the proceedings do not constitute an abuse of process; and a prima facie case is disclosed by the particulars of the offence (s 219(2)).

The power of the Court to make orders additional to a fine on finding an offence proved which are contained in Part 8.3 of the POEO Act also apply to offences under the Environmentally Hazardous Chemicals Act 1987 (POEO Act, s 213). This includes orders such as the payment of any monetary benefit obtained by committing the offences, publicising the offence, or orders for restoration and prevention (see [9.1900]). In Environment Protection Authority v Energy Services International Pty Ltd [2001] NSWLEC 59 the defendant was fined a total of $90,000 for two breaches of the Act relating to the processing of a chemical without the approval required under a chemical control order. Any person can bring civil proceedings to remedy or restrain a breach of the Environmentally Hazardous Chemicals Act 1987, including breaches by the EPA itself (POEO Act, ss 213,252).

Contaminated sites Contaminated Land Management Act [9.2670] The main provisions dealing with site contamination are contained in the Contaminated Land Management Act 1997 (CLM Act). Following a review of the CLM Act in 2003 major amendments were made in 2008. Section 5(1) of the CLMAct defines "contamination" to mean the presence in, on or under the land of a substance at elevated concentrations which presents a risk of harm to human health or any aspect of the environment.

"Significantly contaminated land risk" [9.2680] The CLM Act gives the EPA power to regulate sites that it categorises as significantly contaminated. The CLM Act sets out a long list of criteria that the EPA must take into account when deciding whether or not a site is a significantly contaminated (s 12). These include:

• any harm already caused by the substance • the quantity and concentration of the substance and its nature ie if it is toxic, persistent or bioaccumulative • available exposure pathways such that the contamination will reach humans or the environment • the current and approved land uses of the land and adjoining land and whether this will increase the risk of harm arising from the contaminating substances • actual or likely migration of the substances • matters contained within any relevant guidelines (s 12).

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The EPA can issue a preliminary investigation order to investigate potential contamination (s 10(1)). Such an order can be issued to various persons including the person who is reasonably suspected of causing the contamination, the land owner, a notional owner, a person that had conducted activities on the land involving those substances, or a public authority (s 10(3)). Preliminary investigation orders assist the EPA in determining whether the land is significantly contaminated and therefore, whether it has power to require persons to take steps to address the contamination under the provisions of the CLM Act. If it decides that a site is not significantly contaminated it has no power to impose a management order requiring an investigation or remediation (see Pt 3, Div 2). Generally, sites which are not regulated by the EPA under the CLM Act are dealt with by councils under the EPA Act, in accordance with State Environmental Planning Policy 55-Remediation of Land, and the Managing Land Contamination: Planning Guidelines (see [9.2880]).

Declarations [9.2690] A declaration of significantly contaminated land can be made where "the EPA has reason to believe that land is contaminated and that the contamination is significant enough to warrant regulation" (s 11). A declaration gives public notice rather than requiring any particular regulatory action. It is used to trigger the issue of a management order. A declaration must describe the significant contaminants, set out the actual or potential harm caused, and must invite public submissions for at least 21 days about whether a management order should be issued (s 11(2)). The EPA is required to serve a copy of a declaration on the owner of the land (or in some cases, the notional owner), anyone who the EPA reasonably believes is responsible for the significant contamination, the occupier and the local council (s 11 (4) ). Broader public notice may also sometimes be given in accordance with the EPA's notification policy which is published on its website (s 11 (5); http://www.epa.nsw.gov.au/clm/notificationpolicy.htm).

Investigation and remediation Management orders [9.2700] Management orders can combine investigation and remediation requirements for significant contamination (see s 16). Once a declaration has been made, the authority may order an appropriate person (see [9.2730]) or a public authority to:

• carry out any management action specified in the order • submit a management plan for the EPA's approval (s 14(1)).

A broad range of investigation and remediation actions can be required by a management order (s 16). In Jeffman Pty Ltd v Environment Protection Authority [2011] NSWLEC 89 Preston CJ confirmed that a management order does not have to state the specific remediation technology that must be used in order to remediate the land. The management order may require the outcome, namely remediation, by reference to specified remediation standards and timeframes

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that the order recipient must achieve. His Honour stated that such an approach is consistent with the principles of ecologically sustainable development which the EPA must have regard to when exercising any of its functions under the CLM Act, such as issuing a management order (s 9(1)). The principles of ESD referred to in the CLM Act include "improved valuation, pricing and incentive mechanisms". This includes that "environmental goals, having been established, should be pursued in the most cost effective way ... that enable those best placed to maximise benefits or minimise costs to develop their own solutions and responses to environmental problems" (s 9(3)(d)(iii)). This reflects the subsidiarity principle. Accordingly, by imposing outcomes rather than prescribing technologies that must be used, the notice recipient can chose the best solution and minimise their costs. In this case some of the adjoining land owners were concerned that the method of remediation preferred by the notice recipient would not work. Preston CJ noted that by setting interim remediation standards and timeframes that must be met this allowed the applicant to adopt its preferred method, but would essentially force it to change its remediation method in the event that its original method was not working. This would ensure the recipient met the required outcomes by utilising an adaptive management approach (see [80]-[117]). It is an offence not to comply with a management order without reasonable excuse (s 14(6)). A reasonable excuse includes circumstances where the management order could not be complied with because an occupier has refused access (s 14(7) ). If an occupier does refuse access, the EPA can then issue the order to the occupier instead (s 32).

The period for compliance which must be specified in the order, must usually exceed by a "reasonable amount" the 21 day period allowed for lodging an appeal against the order in the Land and Environment Court (s 61).

Voluntary management proposals [9.2710] Voluntary management proposals may also be submitted to the EPA for approval, as an alternative to the EPA issuing a management order (s 17).

Ongoing maintenance [9.2720] The EPA can impose ongoing maintenance orders on the owner or occupier of land to which a management order or voluntary management proposal applied (s 28). Ongoing maintenance orders can require continuing measures to ensure remediation remains effective, for example, preventing disturbance of contained contamination (see s 28(2)). Ongoing maintenance orders are issued to a specific owner or occupier and do not run with the land (s 28(3)). The EPA also has power to impose restrictions on use or a public positive covenant under s 88E of the Convenyancing Act 1919 to ensure ongoing management in relation to the land (s 29). Such restrictions or covenants can be imposed unilaterally by the EPA, they do not require the consent (or signature) of the landowner or any other person (s 29(4)).

Who is responsible? [9.2730] The CLM Act provides a hierarchy of "appropriate persons" who may be issued with a management order for significantly contaminated land and therefore made responsible for remediation or investigation under the order (s 13 ). Any polluter who caused significant contamination is regarded as the most appropriate person to receive a management order, followed by an owner of the land (regardless of whether the person was responsible for the

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contamination) and lastly, a notional owner (see [9.2740]). The CLM Act sets out circumstances where it is "not practicable" to nominate a particular person and therefore when it is acceptable to move to the next person in the rank order (s 13(3), 13(4)).

A financial assurance may be required in the form of a bank guarantee, bond or other form of appropriate security (s 42C). The EPA determines the amount of the financial assurance, which cannot be more than a reasonable estimate of the costs of completing the required actions under the management order (s 42D).

Notional owners

Where a person fails to carry out actions required by the management order, the EPA may, after giving written notice to the person and considering any representations, realise the financial assurance and have the work carried out (ss 42F - 42G). Any excess amount not required to carry out the work must be returned to the person (s 42G(7)). Any shortfall can be recovered as a debt (s 42G(8)). Disputes in relation to claims or realisation of a financial assurance can be referred to the Land and Environment Court (s 42K).

[9.2740) If it is not practicable to hold an owner financially liable, a notional owner may be held liable (ss 13(2) - (4)). A notional owner can be a mortgagee in possession of land or someone else likely to benefit from the sale of the land (s 7(1)). Such people will not be regarded as notional owners merely because they have a mortgage or charge over the land; they must also be in some way involved in its management (s 7(2)). This ensures that lenders will not be held financially liable for cleaning up contaminated land when they are simply enforcing their right to recover their security, in the event that the polluter or the owner is unable to pay the costs of the clean-up.

No appropriate person? [9.2750) If investigation or remediation is required, the EPA is compelled to specify either an appropriate person or a public authority- a council, for example (s 13(1)). This means that if no appropriate person can be located or the appropriate person fails to comply with the order, the liability to investigate or remediate land could fall back on the public authority (ss 13(6), 30).

Duty to notify [9.2780) The CLM Act imposes a duty on polluters and owners of contaminated land to notify the EPA as soon as practicable after the person is aware, or ought reasonably to have been aware, that the land is contaminated (s 60). The duty only applies in specified circumstances (s 60(3)). The Guidelines on the Duty to Report Contamination under the Contaminated Land Management Act 1997 explain when polluters and owners must notify the EPA about contamination (s 60). The guidelines set a more objective standard than the previous "significant risk of harm" test which was in place until 2009. The duty to notify covers not only current contamination but also contamination that occurred before the CLM Act commenced.

Recovery of costs [9.2760) If work is undertaken by a public authority on the basis that the appropriate person failed to comply with a management order, it may recover the reasonable costs expended by the public authority in complying with the order from that person (s 35(1)). Any costs not recovered from the appropriate person can be recovered from the landowner (s 35(2)). If the owner is insolvent and the public authority has carried out the requirements of the order, it may recover all related costs and expenses in taking priority over any holder of a security over land (s 37). An owner or occupier who was not responsible for significant contamination, but who has complied with a management order or preliminary investigation order, can recover their costs "as a portion from each person who is responsible for the significant contamination" (ss 32(3 ), 36). This reflects the polluter pays principle. Similarly, contaminators that have complied with such orders can recover a portion of their costs from other polluters that bear some responsibility for the significant contamination (s 36(3)).

Financial assurances for management orders [9.2770) Amendments made to the CLM Act which commenced in January 2015 now allow the EPA to impose financial assurances on a person issued with a management order to cover the cost of the actions required by the order (s 14(1A)). Financial assurances can only be required in limited circumstances, namely where the EPA considers it is justified because of the level of risk of environmental harm in relation to the person's activities, the potential remediation work arising from the person's activities, the person's environmental record, or for any reason set out in the regulations (s 42B).

Failure to notify is an offence (s 60(1), 60(2)). Information provided cannot be used for prosecution of the person who provided it, but it can result in a declaration or management order (s 60(7), 60(8)).

Notification to local authorities [9.2790) The EPA has a duty to inform local authorities of contaminated sites in their area that are the subject of declarations, management orders, approved voluntary management proposals or ongoing maintenance orders (s 59). Site auditors must give the EPA and local authorities copies of site audit statements that have been undertaken in their area (s 53B). Local authorities must include this information, in addition to details of declarations, management orders, approved voluntary management proposals and ongoing maintenance orders, on any planning certificate issued under section 149 of the EPA Act (CLM Act, s 59(2)).

Register of contaminated sites [9.2800] The EPA is required to maintain a publicly available, contaminated sites register that records (s 58(1)):

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management orders

Mandatory site audits

site audit statements

[9.2830] It is mandatory to engage a site auditor to report on work carried out as a result of a requirement in a management order or a voluntary management proposal approved by the EPA (ss 16(m), 47(a)). Audits are also mandatory where they are required by:

approved voluntary management proposals pertaining to the land.

This register can be accessed through the EPA website (http://www.epa.nsw.gov.au/clrn/ aboutclmrecord.htm).

Investigation and enforcement [9.2810] EPA authorised officers have similar investigation powers under the CLM Act to those

contained in the POEO Act (see CLM Act, Pt 9 and (9.1740] in relation to POEO Act powers). Prosecutions under the CLM Act can be brought by the EPA (s 94 ). Other persons may institute criminal proceedings with the leave of the Land and Environment Court (s 95). Leave can only be granted in specified circumstances, including that the EPA has not taken any action or decided whether to take action within 90 days (s 95(2)). Action does not just include a criminal prosecution, it also includes a requirement to comply with a Part 3 order, such as a management order (s 95(3)). For a number of the offences under the CLM Act criminal proceedings can only be commenced in the Land and Environment Court. The Local Court has jurisdiction over offences under the regulations and some offences under the CLM Act (ss 91 - 92).

In January 2015 the CLM Act was amended to increase the maximum penalties for offences under the Act. The most serious offences now carry a maximum penalty of $1 million for corporations and $250,000 for individuals. The amendments also provided for a range of alternative sentencing orders similar to those contained in the POEO Act. This includes monetary benefit orders (CLM Act, s 95A), publication and notification orders, orders to carry out an environmental project, and restorative justice activities (s 95B). Some orders can only be made by the Land and Environment Court, not the Local Court (ss 95A(4), 95B(l)). As from January 2015 the EPA also has power to accept an enforceable undertaking where a breach of the CLM Act has occurred (s 96A). This can be used as an alternative to prosecution. Penalty notices can also be issued in relation to some offences (see CLM Act, s 92A, Contaminated Land Management Regulation 2013, cl 11, Sch 1). Any person may bring civil proceedings in the Land and Environment Court for an order to restrain a breach (or threatened or apprehended breach) of the CLM Act (s 96).

Site audits Accredited site auditors [9.2820] The CLM Act provides for accredited site auditors (ss 47 - 57). There are many

contaminated land consultants, but only a few site auditors (38 in 2015), who are accredited by the EPA (s 51). The EPA website provides access to various guidelines relating to the accreditation and duties of accredited site auditors. Accredited site auditors can conduct site audits for the EPA, councils and members of the wider community.

• • •

a development consent or approval condition

State Environmental Planning Policy 55-Remediation of Land (see below) any other environmental planning instrument made under the EPA Act (CLM Act, s 47(c)).

In Environment Protection Authority v Djura [2012] NSWLEC 122 the landowner had obtained development consent to demolish buildings, construct residential dwellings and subdivide the land. One of the development consent conditions imposed by the local council under the EPA Act required a statutory site audit under the CLM Act to be submitted to the council in order to show that the land was suitable for its intended use. The defendant's company had been hired to carry out a site investigation at the land in relation to asbestos contamination. The defendant signed a site audit statement which contained a declaration to the effect that he was an accredited site auditor under the CLM Act. The site audit statement and associated summary and investigation report were submitted to the council. The defendant was not an accredited auditor under the CLM Act. The defendant was prosecuted for one offence under s 57(1) of the CLM Act for falsely representing himself to be an accredited auditor and one offence under s 48(1)(a) for carrying out a statutory site audit when he was not an accredited auditor. At the time the maximum penalty in relation to each of the offences was $66,000. The defendant pleaded guilty and was fined $3,750 for each of the offences. This was the first matter prosecuted under the CLM Act.

Case study: Contaminated site reports [9.2840] There may be many unknowns in relation to a contaminated site, including the extent and nature of the contamination, whether it is significantly contaminated and the cost of remedial action. Advisers should qualify their opinions so as to make clear the assumptions or limitations on which they are based. They should ensure that their terms of engagement are precise, and that they remain within those terms. And people relying on advice should consider whether the person expressing an opinion is appropriately qualified and has been sufficiently briefed.

In Charben Haulage Pty Ltd v Environmental & Earth Sciences Pty Ltd [2004] FCA 403, Caltex had obtained development consent from the local council to decommission a suburban service station and remediate it to residential standards. A condition of the consent was that an auditor accredited by the EPA would sign off the completed decontamination.

A consultant issued a report to Caltex stating that the former service station site was suitable for residential use and the report was provided to the purchaser. The contract of sale contained a condition that the site would be suitable for purposes permitted by its current business zoning (in which residential flats were also permitted). However, the council then rejected the consultant's report, as an EPA accredited auditor had not signed it off.

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The purchaser engaged its own accredited auditor, who recommended reporting to the authority that the site posed a significant risk of harm to human health and the environment because of contaminated groundwater, off-site migration, vapours and the presence of residential units down slope. Work stopped for 10 months, with the council instituting proceedings in the Land and Environment Court to restrain work until an accredited auditor had validated the site, as required by its development consent. At first instance Caltex was found liable for breaching the contractual term that the land be suitable for its zoning. It successfully recovered the extent of its liability from the consultant for breaching its contract to decontaminate and validate the site. However, appeals by CaJtex and EES to the Full Court of the Federal Court of Australia were ultimately successful (Caltex Australia Petroleum Pty Ltd v Charben Haulage Pty Ltd [2005] FCAFC 271). (9.2850] Careful consideration should be given to the purpose and extent of any contamination reports, particularly by prospective purchasers. For example, a report stating that, following limited site investigation, no evidence of significant contamination was found is not the same as validation that a site is suitable for an intended use. And in contractual negotiations, an unaudited consultant's opinion that a site is suitable for a particular use offers less certainty than a report signed off by an accredited auditor.

Protection of the Environment Operations Act (9.2860] The POEO Act also has a role in relation to the management of contaminated land.

Since 2009 the EPA has been able to issue a clean-up or a prevention notice under the POEO Act, even if it is not the ARA, (see [9.930] and [9.960]) where land has been declared significantly contaminated under the CLM Act, even if it has already issued a management order or ongoing maintenance order, or approved a voluntary management proposal (CLM Act, s 46). Potentially contaminating industries will generally require a licence under the POEO Act (see [9.670]). Works required by a management order to deal with the contamination may also trigger licensing thresholds, for example, in relation to the scheduled activities of contaminated soil treatment or contaminated groundwater treatment (POEO Act, Sch 1, cll 15, 15A). The EPA can attach conditions to a licence to require that the licensee carry out remediation work (POEO Act, s 71). To ensure that the necessary funds are available, the licensee may be required to maintain an insurance policy to cover expenses associated with clean-up action and any compensation or damages resulting from pollution in connection with its activity, or to provide financial assurance (POEO Act, ss 70, 72) (see (9.1680]).

Role of local councils (9.2870] Where land does not constitute significantly contaminated land that is regulated by the EPA under the CLM Act, local councils play a role in regulating contaminated land under other legislation. Councils can issue clean-up notices to occupiers of unlicensed premises, or to

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polluters, directing them to take clean-up action (POEO Act, s 91). The EPA Act contains provisions for planning, development control and environmental impact assessment (see Chapters 3 and 5). Currently, some contaminated soil treatment works are listed as designated development (see [5 .330]), which means that an environmental impact statement must accompany the development application for such works. Some remediation work may also constitute State significant development and development consent will need to be obtained from the Minister under the relevant provisions of the EPA Act (see State Environmental Planning Policy (State and Regional Development) 2011; EPA Act Pt 4 Div 4.1; [5.2700]).

SEPP 55 (9.2880] State Environmental Planning Policy 55-Remediation of Land ("SEPP 55") facilitates control over the remediation of contaminated land and ensures that councils receive appropriate information, either at the rezoning or development application stage. It ensures that land-use changes do not occur until consent authorities have considered whether the land is contaminated and whether it needs to be remediated to make it available for the proposed use.

Historical activities that may have caused contamination, and chemicals associated with such activities, are listed in the Managing Land Contamination: Planning Guidelines. Under SEPP 55, remediation only requires development consent where essentially it:

• has the potential for significant environmental impacts, or • does not comply with a council's policy for contaminated land (cl 9).

Remediation work must be carried out in accordance with the appropriate standards and guidelines. The EPA website (http://www.epa.nsw.gov.au) provides access to various guidelines relevant to contaminated land.

Liability of local councils [9.2890] Section 145B of the EPA Act exonerates planning authorities from liability in relation to any action done in good faith in so far as it relates to contaminated land.

Section 145B was triggered by the Federal Court decision in Alec Finlayson Pty Ltd v Armidale City Council (1994) 84 LGERA 225. In that case the council was held to be liable to a developer and others for losses arising as a result of land contamination. Under section 145B a council is taken to have acted in good faith in exercising a planning function (eg, granting development consent) if its actions were substantially in accordance with the Managing Contaminated Land: Planning Guidelines (Department of Urban Affairs and Planning and the EPA, 1998) (http:// www.planning.nsw.gov.au/assessingdevelopment/pdf/gu-contam.pdf). The purpose of the guidelines is to assist consent authorities, developers and other parties to address the issue of land contamination in the planning and development control process. The guidelines deal with:

• the need for early investigation of contamination • rezoning of land • assessment of development applications • notification of information.

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The Environmental Trust fund [9.2900) The Environmental Trust Act 1998 creates an Environmental Trust consisting of five members: the Minister, the Secretary of the Treasury, the Chief Executive Officer of the EPA, a nominee of the Nature Conservation Council and a nominee of the Local Government and Shires Associations (s 6).

The main source of funding for the Trust is an indexed annual appropriation of $13.5 million each financial year (s 19). This amount is to be applied to the objects of the Trust, which include to (s 7):

• encourage restoration and rehabilitation projects that will reduce pollution, waste or environmental degradation in NSW • promote research into environmental problems • promote environmental education • fund land acquisitions for the national park estate • promote waste avoidance, resource recovery and waste management • provide funding to community environmental groups.

10 Climate change and energy Ilona Millar Kylie W ilson Rosemary Bullmor e

The Environmental Trust Act 1998 is a potentially important source of funding for dealing with serious pollution that requires immediate action, as well as the unlawful disposal of orphan waste. Guidelines and information about grants offered to date are available on the EPA website. Greenhouse gas emissions ................................................................................................................................. [10.20] Climate change ........................................................................................................................................................... [10.40] Energy .......................................................................................................................................................................... [10.320]

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[10.10] This Chapter examines law and policy covering the interrelated fields of greenhouse gas

emissions, climate change, and renewable energy and energy savings. As both the Commonwealth and New South Wales State jurisdictions affect these fields, this Chapter considers legislative and policy activity by both levels of government.

[10.30]

chapter 10 Climate change and energy

surpassed the United States of America as the country with the highest per capita carbon dioxide emissions from fossil fuels and cement production. 5 And, despite its Kyoto target of limiting emission increases to 8% above 1990 levels by 2012, Australia's annual GHG emissions increased by 23% from 1990 to 2012, with per capita emissions increasing by 17% over the same period. 6

Greenhouse gas emissions The international context [10.20] The United Nations Framework Convention on Climate Change (UNFCCC) was the first international treaty aimed at addressing climate change. It was signed in 1992 at the United Nations Conference on Environment and Development and entered into force on 21 March 1994. Its primary objective is to achieve the stabilisation of greenhouse gas (GHG) concentrations in the atmosphere at a level that would "prevent dangerous anthropogenic interference with the climate system." 1 To put in place targets and timetables to achieve this goal, in 1997, the conference of the parties to the UNFCCC adopted the Kyoto Protocol. The Kyoto Protocol imposed legally binding commitments on Annex I parties to collectively reduce their emissions by 5% below 1990 levels during the Protocol's first commitment period (2008 - 2012). 2 While some countries committed to reduce their GHG emissions, Australia agreed to limit its future increase in GHG emissions to 8% above 1990 levels.

In 2012, the conference of the parties to the UNFCCC adopted an amendment to the Kyoto Protocol, introducing new commitments for Annex I parties in a second commitment period from 2013 to 2020. In parallel, under the UNFCCC, the majority of developed and developing countries have made emission reduction pledges for the period up to 2020. Unlike the Kyoto Protocol targets, these pledges are not legally binding. Australia has pledged to reduce its emissions by 5% below 2000 levels by 2020. This commitment is also reflected in the amendments to the Kyoto Protocol, which have not yet entered into force. 3

In August 2015, the Australian government announced an emissions reduction target of 2628% below 2005 levels by 2030. This target will form the basis of Australia's approach to the conference of the parties to the UNFCCC in Paris in December 2015, where it is expected that a new climate change treaty for the post-2020 era will be adopted.

This increase is largely due to the fossil fuel dependence of the energy sector, which currently accounts for three-quarters of Australia's GHG emissions. 7 In the 2012-2013 financial year, 8 94 % of the energy consumed in Australia came from fossil fuel sources (coal, oil and gas). Oil is now Australia's largest source of energy, accounting for 38% of consumption in 2012-13, due to increases in use by the mining and transport sectors. Coal is the second largest fossil fuel consumed in Australia and accounts for about two-thirds of electricity generation, but its share of total energy consumption is falling due to declining coal use in electricity generation. In 2012-13 black and brown coal accounted for 33% of energy consumption, natural gas accounted for 24% 9 and renewable sources (biogas, biofuels, hydro, wind and solar) accounted for 6%. In terms of economic sectors, emissions from electricity generation form the lion's share (34.9%) of Australia's overall GHG emissions profile. 10 Other significant contributors include agriculture and forestry (18.3%), manufacturing (12.9%), transport (11.9%), and mining (11.6%). 11 The very recent gradual decline in coal use in the electricity generation sector is reflected in Australia's National Greenhouse Gas Inventory with GHG emissions from this sector declining by 6% since 2012. 12 Studies examining the impact of the now repealed carbon pricing mechanism have shown that, during the operation of the carbon pricing mechanism from 1 July 2012 to 30 June 2014, electricity demand in the National Electricity Market declined by 3.8%, the emissions intensity of electricity supply by 4.6%, and overall GHG emissions by 8.2 %,

5

6

7 8

Australia's record [10.30] Australia is the world's fourteenth largest emitter of GHGs, with annual GHG emissions

9

representing less than 1.5% of total global emissions. 4 However, as of 2012, Australia had 10 United Nations Framework Convention on Climate Change, Art 2. 2

Kyoto Protocol, Art 3.

3

Doha Amendment to the Kyoto Protocol, available at: http://www.unfccc.int/files/kyoto_protocol/application/pdf/ kp _ doha _ amendment_english.pdf.

4

Emission Database for Global Atmospheric Research: CO2 Time Series 1990-2012 per Region/Country, European Commission Joint Research Centre, available at: http://www.edgar.jrc.ec.europa.eu/overview.php?v=C02ts199o2o12&sort=des9 (last updated 28 March 2014).

11

12

Jos GJ Olivier, Greet Janssens-Maenhout, Marilena Muntean, Jeroen A.H.W. Peters, Netherlands Environmental Assessment Agency & European Commission Joint Research Centre, Trends in Global CO2 Emissions: 2013 Report 18 (2013). Available at http://www.pbl.nl/sites/default/files/cms/publicaties/pbl-2o13-trends-in-global-co2-emissions-2o13report-1148.pdf. Jos GJ Olivier, Greet Janssens-Maenhout, Marilena Muntean, Jeroen A.H.W. Peters, Netherlands Environmental Assessment Agency & European Commission Joint Research Centre, Trends in Global CO2 Emissions: 2013 Report 18 (2013). Available at at 27, 50. Australian Government, Department of Industry, Geoscience Australia, Bureau of Resources and Energy Economics, Australian Energy Resource Assessment (2nd ed, 2014), p 1. Australian Government, Bureau of Resources and Energy Economics, Energy in Australia 2014, at 24. Available at: http://www.industry.gov.au/Office-of-the-Chief-Economist/Publications/Documents/energy-in-aust/ bree-energyinaustralia-2014.pdf. Australian Government, Bureau of Resources and Energy Economics, Energy in Australia 2014, at 26-27. Available at: http://www.industry.gov.au/Office-of-the-Chief-Economist/Publications/Documents/energy-in-aust/ bree-energyinaustralia-2014.pdf. The Australian Government, Department of the Environment, National Inventory by Economic Sector 2013: Australia's National Greenhouse Accounts, 4 May 2015. Available at http://www.environment.gov.au/system/files/resources/ 48f221e4-6613-4eb2-b279-18ad7061484a/files/economic-sector-2013.pdf. The Australian Government, Department of the Environment, National Inventory by Economic Sector 2013: Australia's National Greenhouse Accounts, 4 May 2015. Available at http://www.environment.gov.au/system/files/resources/ 48f221e4-6613-4eb2-b279-18ad7061484a/files/economic-sector-2013.pdf. The Australian Government, Department of the Environment, National Inventory by Economic Sector 2013: Australia's National Greenhouse Accounts, 4 May 2015, p 5. Available at http://www.environment.gov.au/system/files/resources/ 48f221e4-6613-4eb2-b279-18ad7061484a/files/economic-sector-2013.pdf.

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compared to the two-year period before the carbon pricing mechanism. 13 Since the repeal of the carbon pricing mechanism, GHG emissions from the electricity sector have increased by more than 4 % . 14 To address the twin challenges of combating climate change and securing the future of Australia' s energy sector, Australian governments have legislated a range of climate change and renewable energy initiatives. Some of these, such as the National Greenhouse and Energy Reporting Scheme are designed primarily to deliver information and data to meet international reporting obligations and to underpin the development of government policies and programmes. Other programmes are designed to encourage action to reduce or offset GHG emissions and/or the sustainable, efficient and environmentally responsible use of our vast energy resources.

Climate change [10.40] As discussed in Chapter 1, the Commonwealth Parliament's external affairs power

under s 51 (xxix) of the Australian Constitution effectively splits the responsibility for enacting environmental legislation between the Commonwealth and the state and territory parliaments. 15 The external affairs power gives the Commonwealth parliament primary responsibility for enacting legislation that implements Australia's obligations under multilateral environmental agreements, including the UNFCCC and the Kyoto Protocol. Additionally, the Commonwealth Parliament often relies on the corporations power under s 51(xx) of the Constitution as a basis for regulating the activities of corporations that impact on the environment. Federal regulation of greenhouse gas emissions is relatively new in Australia. Prior to the enactment of the National Greenhouse and Energy Reporting Act 2007 (Cth) and the Clean Energy Legislative Package in 2011, the Federal Government had pursued voluntary programmes to address climate change. In contrast, some Australian states have had a long history of being proactive in addressing GHG emissions within their borders. For example, the NSW Greenhouse Gas Reduction (GGAS) Scheme, which commenced on 1 January 2003, was the first mandatory emissions trading scheme in the world. Part 8A of the Electricity Supply Act 1995 (NSW) set a State GHG benchmark of 7.27 tonnes of carbon dioxide equivalent ("CO 2 e", which is the internationally recognized measure of greenhouse emissions) per capita per year (s 97B). The Act also imposed obligations on all NSW electricity retailers to reduce GHG emissions attributable to their sales or consumption of electricity in NSW in order to meet the State benchmark (s 97BA). Electricity retailers met their obligations by:

• purchasing and acquitting abatement certificates created by accredited abatement certificate providers who undertook activities that reduced emissions from existing generators • generated electricity using low emission technologies • improved energy efficiency 13

14 15

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sequestered carbon in forests reduced emissions from industrial processes in large energy consuming industries.

The GGAS Scheme closed on 30 June 2012 immediately before the commencement of Australia's national carbon pricing mechanism on 1 July 2012 (see below). Other states, including Victoria, South Australia and the Australian Capital Territory still have legislation specifically dealing with climate change, which include a range of measures such as state-wide GHG reduction targets, principles for decision makers in town planning contexts, and adaptation plans. 16 Australia ratified the Kyoto Protocol on 12 December 2007. Following a protracted political process, including the Senate' s 2009 failure to pass legislation for an emissions trading scheme, in 2011 the Commonwealth parliament finally passed a legislative package introducing a national carbon pricing mechanism. 17 The Clean Energy Act 2011 (Cth) was the centerpiece of the carbon pricing mechanism. It aimed to give effect to Australia's international pledge to reduce GHG emissions by 5% below 2000 levels by 2020. 18 The carbon pricing mechanism commenced on 1 July 2012 and operated for two years before its repeal took effect on 1 July 2014. It applied to a range of major carbon polluters in the stationary energy, waste, rail, domestic aviation and shipping, mining, and industrial processes sectors. The carbon pricing mechanism commenced with a fixed price period of three years (with a starting price of $23/CO 2 e), and was scheduled to transition to a fully flexible emissions trading scheme from 1 July 2015. The scheme provided for the setting of rolling emissions caps to reflect Australia's international target and there was capacity for the emissions cap to be reset during the fully flexible period in light of international developments, including more ambitious action on climate change mitigation at the global level or in other countries and regions. 19 In 2014, the carbon pricing mechanism was repealed and replaced with the Abbott government' s Direct Action Policy. The first part of this policy is the $2.556 Emissions Reduction Fund that purchases eligible emissions reductions from domestic carbon offset projects through a reverse auction process. The second element, to commence in 2016, is a Safeguard Mechanism, which applies baselines to large emitters and requires them to keep emissions below the baseline or pay a penalty. The Emissions Reduction Fund and Safeguard Mechanism are discussed in further detail below.

The National Greenhouse and Energy Reporting Scheme [10.50] The National Greenhouse and Energy Reporting Act 2007 (Cth) (NGERAct) introduced a single, national framework for reporting greenhouse gas emissions, abatement actions and energy consumption and production by corporations. The data gathered under the NGER Act assists with compiling Australia's national greenhouse gas inventory in order to meet Australia ' s

Marianna O'Gorman and Frank Jotzo, Australian National University, Impact of the carbon price on Australia's electricity demand, supply and emissions, (Center for Climate Economics and Policy, Working Paper 1411, 17 July 2014.

16

Available at: https://www.ccep.crawford.anu.edu.au/sites/default/files/publication/ccep crawford anu edu au/ 2014-07/ccep1411.pdf. -

Climate Change Act 2010 (Vic); Climate Change and Greenhouse Gas Reduction Act 2010 (ACT); Climate Change and Greenhouse Emissions Reduction Act 2007 (SA).

17

Pitt & Sherry, Carbon Emissions Index: Electricity emissions update, data to 31 July 2015. Available at: http:// www.pittsh.eom.au/assets/files/Cedex/CEDEX%20Electricity%20Update%20August%2o2o15.pdf. Australian Constitution, s 51(xxix).

Clean Energy Act 2011 (Cth), s 14; Clean Energy (Consequential Amendments) Act 2011 (Cth); Clean Energy Regulator Act 2011 (Cth); Climate Change Authority Act 2011 (Cth).

18

Clean Energy Act 2011 (Cth), s 14.

19

Clean Energy Act 2011 (Cth), s 14.

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reporting obligations under the UNFCCC. In addition, the data collected is used in planning, designing, implementing, and monitoring the effectiveness of GHG reduction policies and programs. Indeed, at the time the legislation was introduced to parliament, it was intended that the data reported under the NGER Act would underpin the establishment of Australia's carbon pricing mechanism, and inform policy formulation with respect to permit allocation and incentives for early abatement action. 20

Scope and coverage [10.60] The NGER Act covers each of the six classes of Kyoto Protocol gases:

1.

carbon dioxide

2.

methane

3.

nitrous oxide

4.

sulphur hexafluoride

5.

certain specified hydrofluorocarbons

6.

certain specified perfluorocarbons. 21

Reporting requirements cover both scope 1 and scope 2 emissions. 22 Scope 1 emissions are defined as GHGs that are released into the atmosphere as a direct result of an activity or series of activities (including ancillary activities) that constitute the facility. 23 Scope 2 emiss10ns are defined as GHGs in relation to a facility, that are released into the atmosphere as a result of activities that generate electricity, heating, cooling or steam that is consumed by the facility but that do not form part of the facility. 24 In other words, scope 1 emissions are all the GHGs emitted directly from a facility and scope 2 emissions are indirect GHG emissions from the consumption of purchased electricity, heat or steam. The NGER Act does not cover scope 3 emissions, which are other indirect emissions, such as emissions associated with the extraction and production of purchased materials and emissions associated with outsourced activities such ' as waste disposal.

[10.70]

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chapter 10 Climate change and energy

the production or consumption of energy by a single facility is 100 terajoules or more. 26

The registration and reporting obligation rests with the controlling corporation, rather than the entity with operational control of a facility. The controlling corporation is defined as a corporation that does not have a holding company incorporated in Australia. 27 Having both corporate-group-wide thresholds as well as facility level thresholds minimizes the ability for companies to avoid registration and reporting obligations by attempting to disaggregate its activities such that no single facility reaches the individual facility threshold. Correctly identifying the facilities under the operational control of a corporate group is essential to determining whether a controlling corporation has an obligation to register and report under the NGER Act. A facility is defined broadly as an activity or series of activities that form a single undertaking or enterprise and meet the various requirements set out in the National Greenhouse and Energy Reporting Regulations 2008 (Cth) (NGER Regulations). 28 The NGER Regulations set out the circumstances in which an activity or series of activities will form part of a single enterprise or undertaking and therefore constitute a facility. 29 A facility is not necessarily limited to a physical place or site. For example, there could be numerous facilities within a single commercial building, or a single facility could be made up of numerous commercial buildings. 30 For various transport industry sectors, such as postal and courier services and road or rail freight transport, all the activities within a single state or territory that are under the overall control of the same group entity will form part of the same single enterprise or undertaking and therefore constitute a single facility. 31 Similarly, for various electricity and telecommunications sectors, such as electricity transmission and distribution, telecommunications services and water supply, sewerage and drainage services, all activities under the overall control of the one group entity will form part of the same single enterprise or undertaking and therefore constitute a single facility. 32 An entity has operational control of a facility if it has the authority to introduce and implement any or all of the following for the facility:

Registration and reporting thresholds [10.70] The NGER Act requires controlling corporations to register and report if the corporation's group meets one or more of the following thresholds in a financial year: 25

• the total amount of GHGs emitted from all facilities has a carbon dioxide equivalence (CO e) of 50 kilotonnes or more • the total amount of energy produced or consumed by all facilities is 200 terajoules or more • the total amount of GHGs emitted from a single facility is 25 kilotonnes CO e or more 2

2

20

21

Explanatory me'.11orandum to the National Greenhouse and Energy Reporting Bill 2007 (Cth), page 5. Available at: http://www.parlinfo.aph.gov .au/parl lnfo/download/legislation/ems/r285 7_ems_ ccda 51fa-d 5d 3-4ae7-a44f8ad4 ff8qo8c/uploa d_pdf/312688rem .pdf;fileType=application%2Fpdf. National Greenhouse and Energy Reporting Act 2007 (Cth), s 7.

22

National Greenhouse and Energy Reporting Act 2007 (Cth), See definition of "emission of greenhouse gas" ins 7.

23

National Greenhouse and Energy Reporting Regulations 2008 (Cth), cl 2.23.

24

National Greenhouse and Energy Reporting Regulations 2008 (Cth), cl 2.24.

25

National Greenhouse and Energy Reporting Act 2007(Cth), s 12.

• operating policies • health and safety policies • environmental policies.

33

If two or more entities happen to satisfy the operational control test over the same facility, and no particular group entity has the greatest authority to introduce and implement operating, 26

National Greenhouse and Energy Reporting Act 2007 (Cth), s 13.

27

National Greenhouse and Energy Reporting Act 2007 (Cth), s 7.

28

National Greenhouse and Energy Reporting Act 2007 (Cth), s s 9.

29

National Greenhouse and Energy Reporting Regulations 2008 (Cth), subdiv 2.4.2.

30

Clean Energy Regulator, National Greenhouse and Energy Reporting, Guideline: Defining a "facility" for the purposes of the National Greenhouse and Energy Reporting legislation. Available at: http://www.cleanenergyregulator.gov.au/ DocumentAssets/Pages/NGER-Defining-facilities.aspx.

31

National Greenhouse and Energy Reporting Regulations 2008 (Cth), reg 2.19.

32

National Greenhouse and Energy Reporting Regulations 2008 (Cth), reg 2.20.

33

National Greenhouse and Energy Reporting Act 2007 (Cth), s 11(1).

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health and safety, and environmental policies, then those entities may jointly nominate one of them to be the nominated group entity for the purposes of registration and reporting under the NGERAct. 3 4 The facility and operational control tests are particularly important for determining whether, for example, the GHG emissions produced by contractors or sub-contractors undertaking work on the land of another entity, properly fall within the single enterprise over which that entity has operational control, or whether it forms a separate facility subject to the operational control of the contractor or sub-contractor. The deadline for a controlling corporation to register under section 12 of the NGER Act is 31 August following the financial year in which they first meet a threshold under section 13 (s 12(4)).

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• waste emissions, which deals with emissions mainly released from the decomposition of organic material in landfill or wastewater handling facilities. For each category of emission, the methods for measurement set out in the Determination are based on the following (cl 1.4):

• method 1 (known as the default method) is derived from the National Greenhouse Accounts method and is based on national average estimates; and • method 2 is generally a facility specific method using industry practices for sampling and Australian or equivalent standards for analysis; and • method 3 is generally the same as method 2 but is based on Australian or equivalent standards for both sampling and analysis; and • method 4 provides for facility specific measurement of emissions by continuous or periodic emissions monitoring.

Reporting [10.80] A corporation registered under the NGER Act must, for each financial year, provide a report to the Clean Energy Regulator relating to the GHG emissions and energy production/ consumption from the operation of facilities under the operational control of the corporation and entities that are members of the corporation's group, during that financial year (s 19). The obligation to report applies even if the corporation' s group falls below all thresholds in section 13 for a financial year. However, if no thresholds are met, the report must simply include a statement that the corporation' s group did not meet any of the thresholds for the financial year (NGER Regulations, cl 4.32). If a corporation's group only triggers a facility level threshold, it will only need to report in respect of that facility or facilities that meet the threshold (NGER Regulations, cl 4.05(2)).

The obligation to report only applies where the Minister for the Environment has determined specific methods or criteria by which the amounts of GHG emissions, or energy production or consumption are to be measured (s 19(1A)). The National Greenhouse and Energy Reporting (Measurement) Determination 2008 (Cth) (Determination) provides for the measurement of scope 1 and scope 2 GHG emissions arising from the operation of facilities and the production and consumption of electricity, as well as GHGs embodied in fuel. The Determination is updated annually.

The deadline for reporting under the NGERAct is 31 October following the relevant financial year (s 19(6)(d)).

Transferring reporting obligations [10.90] Under the NGER Act, there are two ways in which reporting obligations can be voluntarily transferred from the controlling corporation to a different corporation:

1.

a Reporting Transfer Certificate issued by the Clean Energy Regulator under s 22L, which enables the transfer of reporting obligations to a corporation that has financial control of a facility, but is not part of the group that has operational control; or

2.

an agreement under s 22X between a controlling corporation and the member of that controlling corporation's group that has operational control of a facility.

If a Reporting Transfer Certificate is issued by the Clean Energy Regulator or an agreement under s 22X has been notified to the Clean Energy Regulator, the controlling corporation no longer has an obligation to report in respect of the relevant facility (ss 19(5A), 19(10)).

Reporting Transfer Certificates [10.100] The NGER Act allows the voluntary transfer of reporting obligations of a facility from

The categories of scope 1 emissions covered in the Determination are (cl 1.3):

• fuel combustion • fugitive emissions from

a controlling corporation where one member of its group has operational control of the facility to another member of a different corporate group that has financial control of the facility. This allows corporations that are involved in joint ventures, partnerships or trust structures the flexibility to assign reporting obligations to the corporation that is best placed to report for that facility.

•

In order to transfer the reporting obligation, the "transferee corporation" must meet the "reporting transfer test" as follows:

34

fuels, which deals with emissions mainly released from the extraction, production, processing and distribution of fossil fuels, such as coal mining, oil and gas exploration, crude oil production, transportation and refining, and fugitive emissions from the transport of captured CO 2 for the purpose of carbon capture and storage activities

industrial processes, which deals with emissions released from the consumption of carbonates and the use of fuels as feedstock or as carbon reductants, and the emission of synthetic gases from processes such as cement and lime production, and various industrial processes in the chemical and metal industries National Greenhouse and Energy Reporting Act 2007 ( Cth ), s 11 B.

• • •

the facility must be under the operational control of the transferor corporation the transferee corporation must have financial control over the facility the transferee corporation must be a company registered under the Corporations Act 2001 (Cth) (ie it must not be a foreign corporation)

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•

the transferor corporation must be a member of a controlling corporation's group, but not a member of the same group as the transferee corporation (s 22J) (noting that the transferee corporation does not necessarily have to be a member of a controlling corporation's group for the purposes of the NGER Act) .

The transferee corporation may only apply to the Clean Energy Regulator for a Reporting Transfer Certificate with the written consent of the transferor's controlling corporation and the transferee ' s controlling corporation (if it has one) (s 22K). Section 22R of the NGER Act provides that a corporation (the second corporation) has financial control over a facility if:

• under contract, the corporation with operational control of the facility operates the facility on behalf of the second corporation • the second corporation is able to control the trading or financial relationships of the operator in relation to the facility • the second corporation has the economic benefits from the facility • the second corporation is a participant in a joint venture and has a share of the economic •

benefits from the facility that equals or exceeds the share of the other participants in the joint venture, and no other participant in the joint venture has a share that exceeds the second corporation the second corporation is a partner in a partnership, and has a share of the economic benefits from the facility that equals or exceeds the share of the other partners, and no other partner has a share that exceeds the share of the second corporation; or the second corporation is able to direct or sell the output of the facility.

The definition of "financial control" under s 22R of the NGER Act is intended to encompass a corporation that has significant ability to control a facility through financial means only and thereby give effect to decisions relating to GHG emissions reductions. The following is an example of how Reporting Transfer Certificates can operate: Controlling Corporation B

Controlling Corporation

A RTC transfers reporting for facility

Member A.I

Member A.2 (transferor corporation) operational control

Facility

1

Facility 2

Facility

3

MemberB.l (transferee corporation)

financial control

Facility 4

MemberB.2

Facility 5

Facility 6

Section 22X Agreements [10.11 0] Under section 22X, a controlling corporation may enter into an agreement with the member of its group that has operational control of a facility (responsible member) whereby the

[10.130)

chapte r 10 Climate change and energy

controlling corporation and the responsible member agree to transfer reporting obligations to the responsible member. Unlike Reporting Transfer Certificates, no application to the Clean Energy Regulator is required. The controlling corporation and the responsible member must, before the end of the financial year, jointly notify the Clean Energy Regulator in writing of the agreement and the facility to which the agreement relates. The responsible member must then report on the GHG emissions and energy production/consumption from the operation of the facility during the whole, or the part of the financial year, as the case may be (s 22X(2)).

Publication of information [10.120] The Clean Energy Regulator maintains the National Greenhouse and Energy Register

that sets out the name of each corporation registered under the NGER Act, the reporting year for which the corporation was first registered, information about the corporation' s compliance with the NGER Act and information about whether a greenhouse and energy audit had been carried out in relation to the corporation (s 16 of the NGER Act and NGER Regulations, cl 3.04). The National Greenhouse and Energy Register can be accessed through the Clean Energy Regulator's website at: http://www.cleanenergyregulator.gov.au/NGER/Published-information/NationalGreenhouse-and-Energy-Register-by-year. Published NGER data can also be accessed through the Clean Energy Regulator's website. However, the Clean Energy Regulator is not required to publish all of the data it obtains from the reports that are submitted by corporations under ss 19, 22G and 22X of the NGER Act. By 28 February each year, the Regulator must publish only the following information on its website in relation to each registered corporation's group, and only if the corporation's group emits 50 kilotonnes of CO 2 e or more in the previous financial year (ss 24(1), 24(1B)):

• • •

totals of greenhouse gas emissions that are scope 1 emissions reported in relation to the corporation's group for the previous financial year totals of greenhouse gas emissions that are scope 2 emissions reported in relation to the corporation's group for the previous financial year the totals of net energy consumption reported for the corporation's group for the previous financial year.

The above information is also published for corporations that hold a Reporting Transfer Certificate in respect of a facility, but only if the operation of the facility causes GHG emissions of 25 kilotonnes of CO 2 e or more, or production or consumption of 100 terajoules of energy or more (ss 24(1AD), 24(1H)).

Compliance and enforcement [10.130] The registration and reporting requirements under the NGER Act are enforced by civil penalty provisions. The civil penalty for failing to register or report under the NGER Act is 2,000 penalty units (ss 12(1), 19(1), 22G, 22X). 35 Other requirements, such as the requirement for registered corporations to keep records of the activities of the members of its group that (a) allow it to report accurately and, (b) enable the Clean Energy Regulator to ascertain whether the 35

On 31 July 2015, a penalty unit under s 4AA of the Crimes Act 1914 (Cth) was increased to $180.

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corporation has complied with its obligations under the NGER Act, attract a civil penalty of 1,000 penalty units for failure to comply (s 22H).

non-legacy waste. Thus the CFI was intended to encourage abatement in sectors that would not have direct liability under the Clean Energy Act.

A corporation is also liable for a civil penalty of 100 penalty units per day for each day that the corporation fails to comply with the register and reporting requirements after the relevant deadline for compliance (s 30).

Following the repeal of the Clean Energy Act, on 24 November 2014, the Australian Parliament passed the Carbon Farming Initiative Amendment Act 2014 {Cth) (CFI Amendment Act), amending the CFI Act to establish the Emissions Reduction Fund (ERF) (see [10.150]). Importantly, the CFI Amendment Act expanded the coverage of the CFI beyond the land use, agriculture and forestry sectors and enabled the Clean Energy Regulator to issue carbon credits for emissions reduction projects in all sectors of the economy, including energy efficiency projects and large industrial facilities. Thus the ERF became the Government's principal policy for reducing Australia ' s GHG emissions from all sectors of the economy and ensuring that Australia meets its target for the Kyoto Protocol's second commitment period of reducing greenhouse gas emissions by 5% below 2000 levels by 2020.

Under the NGER Act, a person must not aid, abet, counsel, procure or induce contravention of a civil penalty provision, conspire to contravene a civil penalty provision or be in any way directly or indirectly knowingly concerned in or party to a contravention of a civil penalty provision. Such conduct itself constitutes a breach of the relevant civil penalty provision as if the person had contravened the provision and therefore attracts the same civil penalty (s 33). In addition to civil proceedings, the Clean Energy Regulator has a range of other enforcement options, including the ability to issue infringement notices (s 39) and to accept enforceable undertakings (ss 45 and 46). Since the NGER Act places the responsibility on companies to register and report, liability for contravening a provision of the NGER Act will usually rest with the corporation itself. However, in certain circumstances, the executive officers can also be liable for the same pecuniary penalty that a Court could order the corporation to pay for a contravention of the provisions of the NGER Act (s 47(3)). An executive officer can be liable for a contravention of a civil penalty provision of the NGER Act by a corporation if the executive officer (s 47(1)):

• • •

knew that, or was reckless or negligent as to whether, the contravention would occur was in a position to influence the conduct of the corporation in relation to the contravention failed to take all reasonable steps to prevent the contravention.

The standards of recklessness and negligence are specifically defined under section 4 7 of the NGERAct. Although the contravention of a civil penalty provision is not a criminal offence, under Div 137 of the Criminal Code 1995 (Cth) it may be an offence to provide false or misleading information or documents to the Clean Energy Regulator in purported compliance with the NGERAct.

The Carbon Farming Initiative [10.140] The Carbon Farming Initiative (CFI), was established under the Carbon Credits

(Carbon Farming Initiative) Act 2011 (Cth) (CFI Act) and commenced operation on 8 December 2011. The CFI was originally designed to establish a framework for the certification of carbon offsets from eligible carbon sequestration and emission reduction projects in the land use, land use change and forestry sectors. Providing a framework for the certification of carbon offsets would encourage voluntary GHG abatement activities in the land use, agriculture and forestry sectors which, in 2011, were responsible for almost a quarter of Australia's GHG emissions.

In February 2011, the then Prime Minister, the Hon Julia Gillard MP, announced that the Government would legislate a framework for a carbon pricing mechanism to place an explicit price on emissions from stationary energy, transport, fugitive emissions, industrial processes and

The operation of the CFI, now known as the ERF, is discussed below.

The Emissions Reduction Fund [10.150] Under the Emissions Reduction Fund (ERF), eligible carbon abatement projects are able to generate Australian carbon credit units (ACCUs), for purchase by the Clean Energy Regulator (CER) through periodic reverse auctions or other competitive tendering processes. In 2015 the Commonwealth Government pledged $2.55 billion to fund the purchase of ACCUs through the ERF in the period to 2018. A further $2.4 billion is also earmarked for the period 2018-2030.

Eligibility requirements [10.160] In order to generate and apply for the issuance of Australian carbon credit units a ' person must first apply to the CER for the declaration of an offsets project as an "eligible offsets project" (CFI Act, s 22).

The criteria for declaring a project as an eligible offsets project are that (CFIAct, s 27(4)): 1.

the project is, or is to be, carried on in Australia

2.

the project is covered by a methodology determination

3.

the project meets the requirements set out in the methodology determination

4.

the project meets the additionality requirements

5.

the applicant is the project proponent for the project

6.

the applicant passes the fit and proper person test

7.

if the project is a sequestration offsets project-the project area, or each project area, is Torrens system land or Crown land

8.

the project meets the eligibility requirements (if any) specified in the regulations or the legislative rules

9.

the project is not an excluded offsets project.

For s 27( 4) of the CFI Act, an additional eligibility requirement is that the project area, or any part of it, is not used to meet an obligation under a Commonwealth, State or Territory law to

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offset or compensate for the adverse impact of an action on vegetation (Carbon Credits (Carbon Farming Initiative) Rule 2015 (Cth), cl 20A). This would include a biodiversity offset required under a development consent issued pursuant to the Environmental Planning and Assessment Act 1979 (NSW). Each of these criteria and requirements are set out below.

Methodology Determinations

[10.190)

ch apter 10 Climate change and energy

abatement activity. The concept of additionally is central to both the environmental effectiveness and economic efficiency of carbon offset schemes and is common to most market-based mechanisms, including the Kyoto Protocol's Clean Development Mechanism. The ERF can only be effective in actually reducing Australia' s GHG emissions if it incentivises carbon abatement activities that would not have occurred in the absence of the ERF. In other words, the ERF would be ineffective as a climate change mitigation policy and a waste of government money if it simply paid for carbon offsets that would have occurred anyway.

[10.170] Methodology Determinations set out the specific methods and requirements for monitoring a project' s performance, record keeping, and calculating the carbon dioxide equivalent net abatement amount for the project for each reporting period, based on the project's measured performance.

Therefore, in order to ensure its effectiveness, the CFI Act contains three additionality requirements that a project must meet in order to be eligible to generate ACCUs. These requirements are as follows (s 274A)): l.

The "newness requirement" - that the project must not have begun to be implemented.

The ERF Methodology Determinations are available on the Department of the Environment' s website. The Minister has made Methodology Determinations for the following sectors:

2.

The "regulatory additionality requirement" - that the project is not required to be carried out by or under a law of the Commonwealth, a State or a Territory.

3.

The "government program requirement" - that the project would be unlikely to be carried out under another Commonwealth, State or Territory government program or scheme in the absence of a declaration of the project as an eligible offsets project.

• agriculture (including sequestration of carbon in soil, and destruction of methane from piggeries) • energy efficiency (including commercial building energy efficiency, and industrial electricity and fuel efficiency) • mining (including coal mine waste gas) • transport (including aviation and land and sea transport) • vegetation management (including avoided deforestation, reforestation and afforestation) • waste and wastewater (including landfill gas and wastewater treatment).

Before making or varying a methodology determination, the Minister must request the Emissions Reduction Assurance Committee to advise the Minister about whether the Minister should make the determination (s 114(10)). The Emissions Reduction Assurance Committee must first conduct a 28 day public consultation in relation to the draft Methodology Determination (CFI Act, s 123D), and in providing the advice to the Minister have regard to the offsets integrity standards and advice given by the CER (s 123A(5)). The offsets integrity standards are as follows {s 133):

The newness requirement [10.190] The CFI Act provides guidance to the CER on when a project will have already begun to be implemented and therefore not satisfy the newness requirement.

For the purpose of determining whether a project has begun to be implemented, the CER must disregard any of the following activities that may have already been undertaken in relation to an offsets project (s 27(4B)): a)

conducting a feasibility study for the project

b)

planning or designing the project

c)

obtaining regulatory approvals for the project

d)

obtaining consents relating to the project

e)

obtaining advice relating to the project

f)

conducting negotiations relating to the project

l.

that the Methodology Determination should result in carbon abatement that is unlikely to occur in the ordinary course of events (disregarding the effect of the CFI Act)

2.

emission reductions pursuant to a Methodology Determination should be measurable and capable of being verified

g) h)

sampling to establish a baseline for the project

3.

the Methodology Determination should be supported by clear and convincing evidence

i)

an activity that is ancillary or incidental to any of the above activities.

4.

projects undertaken under the Methodology Determination will result in a material reduction of the carbon dioxide equivalent of any amounts of greenhouse gases that are emitted as a direct consequence of carrying out the project

The CFI Act also provides the following examples of when a project has begun to be implemented (s 27(4C)): a)

making a final investment decision in relation to the project

5.

if the Methodology Determination involves an estimate, projection or assumption-the estimate, projection or assumption should be conservative.

b)

acquiring or leasing a tangible asset (other than land) that is for use wholly or mainly for the purposes of the project

Additionality requirements

c)

commencing construction work for the purposes of the project

[10.180] The term "additionality" refers to a project generating GHG emission reductions that

d)

in the case of a sequestration offsets project-preparing soil for seeding or planting that is for the purposes of the project

are additional to what would have occurred in the absence of the scheme that encourages the

an activity specified in the legislative rules

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[10.200]

e)

in the case of a sequestration offsets project-seeding, planting or fertilising plants that are for the purposes of the project

f)

in the case of a sequestration offsets project-installing an irrigation or drainage system for the purposes of the project.

Therefore, if any of the above activities has occurred, the project will not satisfy the newness requirement, will not be additional, and will therefore be ineligible for registration as an eligible offsets project.

[10.240]

chapter 1 O Climate change and energy

emissions avoided due to the capture of the methane, and Renewable Energy Certificates (RECs) for the displacement of electricity generated from fossil fuels . In this respect, eligibility under both schemes does not result in a double-counting of emissions reduced because the project results in the reduction of emission from both the capture of methane and the displacement of electricity that would otherwise be produced from fossil fuels.

Project proponent [10.220] Only a project proponent may apply to the CER for a declaration of an eligible offsets

project (s 27(4)(e)).

The regulatory additionality requirement [10.200] In order to be eligible, the project must not be required to be carried out by or under a

law of the Commonwealth, a State or a Territory (s 27(4A)(b)).

The government program requirement [10.21 0] In order the clarify the operation of the government program requirement, the Carbon

Credits (Carbon Farming Initiative) Rule 2015 (Cth) (CFI Rule) sets out requirements that apply in lieu of the broad government program requirement in the CFI Act. The CFI Rule states that, in order to be an eligible offsets project, the project must not include any of the following activities (cl 21(2)): a)

the operation of an accredited power station within the meaning of the Renewable Energy (Electricity) Act 2000, except if: (i)

the project is an emissions avoidance project that primarily involves the avoidance of methane emissions; or

(ii)

the power station uses eligible waste coal mine gas to generate electricity; or

(iii)

the power station does not use an eligible energy source to generate electricity;

b)

the installation of a solar water heater or a small generation unit, within the meaning of the Renewable Energy (Electricity) Act 2000 (Cth), in relation to which a small-scale technology certificate has been, or will be, created in accordance with that Act

c)

a recognised energy saving activity, within the meaning of s 127(6) of the Electricity Supply Act 1995 (NSW), in respect of which an energy savings certificate has been, or will be, created in accordance with that Act (see [10.400])

d)

similar energy efficiency activities that generate certificates or credits, or contribute to the achievement of an entity's obligation under various State energy efficiency legislation, including the Victorian Energy Efficiency Target Act 2007 (Vic), the Electricity (General) Regulations 2012 (SA), or the Energy Efficiency (Cost of Living) Improvement Act 2012 (ACT).

Therefore, energy savings activities that generate Energy Savings Certificates (ESCs) under the NSW Energy Savings Scheme (discussed at [10.400] below) are ineligible to be registered under the ERF. However, certain projects that generate Renewable Energy Certificates under the Renewable Energy (Electricity) Act 2000 (Cth) are also eligible for registration as an ERF project under the CFI Act. Projects that primarily involve the avoidance of methane emissions, such as landfill gas, wastewater, alternative waste treatment, piggeries and coal projects, are eligible under the ERF. For example, a landfill gas project that uses captured methane to produce methane and sell electricity into the grid may be eligible to receive both ACCUs for the GHG

A "project proponent" is the person who is responsible for carrying out the project and has the legal right to carry out the project (s 5). While the CFI Act does not clarify what the legal right to carry out a project would entail, one example would be where the project proponent holds the carbon sequestration rights in relation to a carbon sequestration project. There may be multiple project proponents for a single project in accordance with Part 10 of the CFI Act.

Fit and proper person test [10.230] The fit and proper person test is set out in Part 4 of the CFI Rule. Generally, the fit and proper person test requires that an individual or corporation (and executive officers of the corporation), who applies for a declaration of an eligible offsets project must not have been convicted of an offence against a law of the Commonwealth, a State or Territory relating to (cl 61(1)(a)):

• • • •

dishonest conduct the conduct of a business the environment or the protection of the environment work health and safety.

The individual or corporation (and executive officers of the corporation) must not have breached the CFI Act, CFI Regulations, or CFI Rules, the Australian National Registry of Emissions Units Act2011 (Cth) or regulations under that Act, the NGER Act or regulations under that Act, or the Renewable Energy (Electricity) Act 2000 (Cth) or regulations under that Act (cl 61(1)(f) - (i)).

Excluded offsets projects [10.240] The Carbon Credits (Carbon Farming Initiative) Regulations 2011 (Cth) (CFI Regulations), specifies the types of projects that are deemed "excluded offsets projects" and are therefore ineligible to be registered under the CFI Act. These types of projects are primarily projects that would have detrimental environmental impacts or result in perverse incentives if they were eligible under the ERF. Excluded offsets projects include (cl 3.36)):

a)

the planting of a species in an area where it is a known weed species

b)

the establishment of a forest under a forestry managed investment scheme for Division 394 of Part 3-45 of the Income Tax Assessment Act 1997 (Cth)

c)

the cessation or avoidance of the harvest of a plantation

d)

the establishment of vegetation on land that has been subject to illegal clearing of a native forest, or illegal draining of a wetland.

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[10.250)

Monitoring, reporting and issuance of ACCUs [10.250] The number of Australian carbon credit units (ACCUs) issued in respect of an eligible offsets project is worked out by reference to the relevant abatement amount calculated under the applicable Methodology Determination.

After the end of each reporting period, the project proponent must provide the CER with a written report about the eligible offsets project (CFI Act, s 76(1)) and may apply to the CER for a certificate of entitlement in respect of the project for the reporting period (s 12). When the CER declares an offsets project to be an eligible offsets project, the CER must give the project proponent an audit schedule in accordance with the CFI Rules that sets out when a report must be accompanied by an audit (CFI Rules, cl 73). Reporting periods are nominated by the project proponent when it applies for a declaration of eligible offsets project, and may be no shorter than every six months, but no longer than two years. For sequestration projects the maximum reporting period is five years (s 76(1)). A certificate of entitlement specifies the project proponent's unit entitlement in respect of the project for the reporting period (s 15(3)). The unit entitlement is generally the total net abatement amount in tonnes of CO 2 e achieved by the project in the reporting period as determined in accordance with the applicable Methodology Determination (s 18(2)). On the day following the issuance of the certificate of entitlement, the CER must issue ACCUs equal to the unit entitlement specified in the certificate of entitlement (s 11(2)). However, for sequestration offsets projects, a 5% risk of reversal buffer and permanence period discount also apply (s 16). When applying for the declaration of an eligible offsets project, a project proponent of a sequestration offsets project can nominate a 100 year permanence period or a 25 year permanence period. If the project proponent choses a 100 year permanence period, there is no discount applied to the net abatement number. However, if a 25 year permanence period is chosen, a discount of 20% will be applied to the net abatement number for the project (s 16(2)). For example, when a sequestration project with a 25 year permanence period applies for a certificate of entitlement, the unit entitlement will be determined by reducing the project's net abatement amount by 5% of the net abatement amount and 20% of the net abatement amount. A crediting period is the period of time a project is able to apply to the CER for the issuance of ACCUs. Generally, the crediting period for an eligible offsets project is:

• 25 years for a sequestration offsets project (s 69(2)); or • 7 years for an emissions avoidance offsets project (s 69(3)).

However, the applicable methodology determination for the project may specify a different crediting period.

Purchase of ACCUs by the Commonwealth [10.260] Under the CFI Act, the CER may, on behalf of the Commonwealth, enter into carbon

abatement contracts to purchase eligible carbon credit units only from project proponents following the conduct of a "carbon abatement purchasing process" which may be a reverse auction, tender process or any other type of process conducted by the CER (ss 20B, 20C(2), 20F).

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In exercising its power to conduct a reverse auction, tender process or any other type of carbon abatement purchasing process, the CER must have regard to the principles that the process should (s 20G}: a)

facilitate the Commonwealth purchasing carbon abatement at the least cost

b)

maximise the amount of carbon abatement that the Commonwealth can purchase

c)

be conducted in a manner that ensures that administrative costs are reasonable

d)

be conducted in a manner that ensures the integrity of the process

e)

encourage competition

f)

provide for fair and ethical treatment of all participants in the process.

Generally, carbon abatement contracts will not exceed a duration of 7 years, but the CER may enter into a contract with a longer duration if the project from which the eligible carbon credit units are derived, has a crediting period of more than 7 years, such as carbon sequestration projects (CFI Rule, cl 10). The CER's standard form carbon abatement contract is available on its website, together with details regarding the options to negotiate conditions precedent and delivery schedules. Only carbon abatements that can be used to meet Australia's climate change targets under the Kyoto Protocol or any successor international agreement may be purchased by the CER. Accordingly, the CER is only able to purchase Kyoto ACCUs, with other eligible carbon units to be prescribed by future regulations (CFI Act, s 5). Following the conduct of a carbon abatement purchasing process, the CER must publish the weighted average price for eligible carbon credit units that the CER purchased as a result of the process (s 163 ). The CER must also publish annually (among other statistics) the total amount of carbon abatement that will result from the purchase of eligible carbon credit units by the CER under carbon abatement contracts entered into during the financial year and the total amount that the CER will pay for the purchase of eligible carbon credits units under those contracts (s 163A). The first auction under the ERF took place in April 2015. The CER entered into 107 carbon abatement contracts to deliver a total of 47,333,140 tonnes of abatement at an average price of $13.95/tCO 2 e (tonnes of carbon dioxide equivalent) of abatement. The second auction took place in November 2015 and the CER entered into a further 129 contracts to deliver approximately 45 million tonnes of abatement at an average price of $12.25/tCO2e. The CER's auction guidelines are available on its website.

Safeguard mechanism [10.270] In its White Paper on the ERF, which was released in April 2014, the Commonwealth

Government foreshadowed that it would consult on the development of an "emissions safeguard mechanism" to ensure that emissions reductions paid for through the ERF are not displaced by a significant increase in emissions elsewhere in the economy. The safeguard mechanism will operate by placing a limit on the emission of GHGs by certain large emitters, and allowing those large emitters to surrender prescribed carbon units to satisfy their obligations. The CFI Amendment Act introduced a new Part 3A into the NGER Act for the establishment of the Emissions Reduction Safeguard Mechanism, which will commence on 1 July 2016. Under

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those amendments to the NGER Act, "designated large facilities" will be required to ensure that their scope 1 GHG emissions do not exceed the baseline applicable to the facility. The Safeguard Mechanism is intended to apply to facilities that emit 100,000 tCO2e or more annually. This represents approximately 140 large facilities which already report their emissions under the NGER Act and represent approximately 52 % of Australia's greenhouse gas emissions. Industries likely to have covered facilities include power generation, mining (coal and metal ores), oil and gas extraction, gas supply, manufacturing (including metals, cement and lime), transport (air, sea, rail and road), heaving and civil engineering construction and waste. The National Greenhouse and Energy Reporting (Safeguard Mechanism) Rule 2016 (Cth) (Safeguard Rule) was made in October 2015 and provides the details for how baselines will be set for designated large facilities. The default position is that the baseline for such facilities will be set at the facility's highest level of reported emissions over the three financial years 2009-10 to 2013-14. However, there are a number of alternative methods of baseline setting for new facilities, significant expansion of existing facilities and to address circumstances such as inherent variability in emissions from coal mines and oil and gas operations. Under this mechanism, an entity that has operational control over a designated large facility (a "responsible emitter") will be required to pay a civil penalty where the direct (scope 1) emissions from that facility exceed a baseline level of emissions. The period in respect of which this assessment is made ("monitoring period") may be either a financial year or, if determined by the CER in accordance with the Safeguard Rule, two or more consecutive financial years. This latter option will potentially allow emissions to be averaged over a number of years so as to address spikes in emissions cycles. Although the Commonwealth Government repealed the Clean Energy Act 2011 (Cth) and replaced it with what it describes as a direct action plan, by placing a limit on the emissions of large facility and allowing them to purchase carbon units to meet their obligations, the legislative framework for the Safeguard Mechanism will essentially establish a baseline and credit emissions trading scheme, albeit with a very limited number of participants. The entry into force of the Safeguard Mechanism may provide a source of demand for carbon credits generated under the CFI Act other than through auctions run by the CER. However, the effectiveness of that scheme in developing a strong market and encouraging emission reductions will depend upon how stringent the facility emissions baselines are set and how high the prescribed penalty is for exceeding the baselines.

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The voluntary carbon market must be complementary to the Australian Government's Emissions Reduction Fund (ERF). It provides an alternate market for businesses to sell credited abatement in the form of Australian Carbon Credit Units (ACCUs). Credits must be additional to ACCUs generated under the ERF. The ERF White Paper confirmed that the Government would cancel a Kyoto unit for each ACCU retired under the Carbon Neutral Program. The Australian Department of Environment oversees the National Carbon Offset Scheme (NCOS) and the Carbon Neutral Program.

National Carbon Offset Scheme [10.290] NCOS sets a benchmark for consumers and businesses to assess claims of carbon neutrality and the credibility of offset products available for sale in the voluntary carbon market. Offsets can be generated from a range of land-based activities such as improved forest management, revegetation and soil carbon. All credits traded on the voluntary market must meet NCOS.

NCOS provides guidance for determining genuine offset units and establishes the minimum requirements for calculating, auditing and offsetting the carbon footprint of an organisation. To be "carbon neutral" the net emissions associated with a product or an organisation's activities must be equal to zero. In order to be carbon neutral an organisation must:

• measure its carbon footprint • monitor and reduce emissions (to the extent possible) • purchase and cancel sufficient eligible carbon offset units to offset the remaining emissions associated with the claim. Eligible offset units recognised under NCOS are Australian government units (ACCUs) and some international units, including Kyoto credits with exceptions.

The Carbon Neutral Program [10.300] The Carbon Neutral Program provides a mechanism for organisations to be certified as carbon neutral in accordance with the NCOS. The Carbon Neutral Program covers the operations of an organisation, products, services or events in Australia. The Carbon Neutral Program Guidelines set out the requirements for certification.

Climate change litigation The National Carbon Offset Standard [1 0.280] Australia has two complementary initiatives for offsetting carbon emissions voluntarily,

the 1.

National Carbon Offset Scheme

2.

Carbon Neutral Program.

The aim of these initiatives is to provide national consistency and consumer confidence in the voluntary carbon market by setting a benchmark and framework for determining and certifying offsets.

[10.310] In recent years there have been a number of cases brought challenging the validity of large mining and energy projects on the basis of their climate change impacts.

These cases have traditionally been brought under planning and environmental laws because the siting, environmental assessment, and direct environmental impacts of activities that generate GHG emissions (such as mining, electricity generation, waste treatment, construction and forestry) are primarily regulated under state planning and environmental laws, such as the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and the Protection of the Environment Operations Act 1997 (NSW) as well as, for matters of national environmental significance, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) .

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In the absence of sustained and ambitious action by governments with respect to climate change, a number of public interest cases in federal and state courts and tribunals have raised the failure of administrative decision-makers to consider climate change impacts as a ground for judicial review. At the federal level, efforts have been made to link global emissions from the burning of coal produced in Australia to direct impacts on Australia's World Heritage Properties, in particular the Great Barrier Reef. In the case of Wildlife Preservation Society of Queensland Proserpine/ Whitsunday Branch Inc v Minister for the Environment and Heritage (2006) 232 ALR 510; [2006] FCA 736 the applicant claimed that the Minister had failed to consider climate change impacts on the Great Barrier Reef in his assessment of two proposed coal mines under the EPBC Act. Dowsett J dismissed the application on the ground that the EPBC Act required assessment of the impacts of the proposed mine and not the impact worldwide of burning coal. Following the decision in Wildlife Preservation Society, the EPBC Act was amended. Section 527E was inserted into the Act to define the term "impact" as a direct consequence of an action or an indirect consequence which is a "substantial cause of that event or circumstance." Accordingly, in Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2007) 159 LGERA 8, involving an open-cut mine in the Hunter Valley, the Federal Court found that the Minister's delegate accepted that GHGs in the atmosphere caused climate change, but held that the proposed mine would not be a substantial cause of climate change affecting matters protected under Part 3 of the EPBC Act (at [38]). It is interesting to note that at a number of points in time in the last 15 years there have been calls to include a "greenhouse trigger" in the EPBC Act, which would require developments likely to produce significant levels of GHG emissions to be subject to review and approval by the federal Minister for the Environment. Despite the inclusion of an interim greenhouse trigger (with a sunset date linked to the commencement of federal regulation of GHG emissions through an emissions trading scheme) forming a recommendation in the Hawke Review of the EPBC Act, no further steps have been taken by the Federal government to progress this. 36 In NSW, coal mines and coal fired power stations will require environment protection licences under the Protection of the Environment Operations Act 1997 (see [9.670]). In practice, the Environment Protection Authority (EPA) does not use environment protection licences to regulate the emission of carbon dioxide. Nor has the load-based licensing scheme been used to provide incentives to upgrade less efficient technology by identifying carbon dioxide and other greenhouse gases as assessable pollutants that trigger payment of fees based on the quantity of a pollutant emitted. However, some environment protection licences do include conditions requiring the monitoring of carbon dioxide emissions (see Gray v Macquarie Generation [2010] NSWLEC 34). In Gray v Macquarie Generation [2010] NSWLEC 34, a representative of a climate action group brought civil proceedings against a coal-fired power station for a declaration that the emission of carbon dioxide amounted to the willful or negligent disposal of waste without lawful authority, a tier one offence under section 115 of the Protection of the Environment Operations 36

Dr Allan Hawke, Report of the Independent review of the Environment Protection and Biodiversity Conservation Act 1999: Final Report, October 2009.

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Act 1997 (see [9.1110]). The Court found that the environment protection licence issued by the EPA to the power station impliedly authorised the emission of carbon dioxide because it was an inevitable consequence of generating electricity. Following the decision in Gray, the NSW parliament introduced the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW), which, among other things, requires that indirect GHG emissions from extractive industries be considered in the assessment and approval process under the Environmental Planning and Assessment Act 1979 (NSW). Before granting consent for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider whether or not the consent should be issued subject to conditions aimed at ensuring that the development is undertaken in an environmentally responsible manner, including conditions to ensure that greenhouse gas emissions are minimised to the greatest extent practicable (cl 14(1)(c)). In determining a development application for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider an assessment of the GHG emissions (including downstream emissions) of the development, and must do so having regard to any applicable State or national policies, programs or guidelines concerning greenhouse gas emissions (cl 14(2)). In Hunter Environment Lobby In v Minister for Planning & Ulan Coal Mines [2011] NSWLEC 221 the applicant challenged the Minister for Planning's approval of mining activities that would double the mine's approved production rate, with consequential impacts on groundwater, biodiversity and GHG emissions. The Court held that approval should in principle be granted to Ulan's project, subject to further submissions from the parties in order to finalise the conditions in relation to groundwater, biodiversity offsets and the offsetting of Ulan's scope 1 GHG emissions. In a subsequent decision related to the GHG offset conditions, Hunter Environment Lobby Inc v Minister for Planning (No.2) [2012] NSWLEC 40, the LEC declined to impose the offset condition it had considered in the first case on the basis that since that time the Clean Energy Act 2011 (Cth) had commenced and imposed a carbon price on the mine's scope 1 emissions. Therefore, the offset condition was no longer required.

Energy Renewable energy target [10.320] Prior to the Conference of the Parties to the UNFCCC in Kyoto in December 1997, where the Kyoto Protocol was adopted, the then Prime Minister, John Howard, announced a range of policies to address climate change. Recognizing that, in 1997, electricity generation was the single largest contributor to Australia's GHG emissions and electricity consumption was projected to grow by 1.7% a year to 2014-2015, the Government announced a mandatory target for the uptake of renewable energy. The target was part of the Government's broader strategy to stimulate the development of a commercially competitive renewable energy industry which could participate in the burgeoning Asian energy market. Thus the target was intended to be a long-term climate change response measure achieved through the development of industry capacity.

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Lorge-scale renewable energy target

In 2000, the Commonwealth Parliament enacted the Renewable Energy (Electricity) Act 2000 (Cth) (Renewable Energy Act), establishing a mandatory renewable energy target (RET) to increase the volume of electricity from renewable sources to 2010 and beyond and thereby contribute to a reduction of Australia's GHG emissions. To achieve this target, the Renewable Energy Act imposed a requirement for wholesale purchasers and notional wholesale purchasers of electricity (liable entities) to purchase electricity from renewable sources, which is substantiated through holding renewable energy certificates (RECs) . The Renewable Energy Act commenced on 1 January 2001 and set the required amount of additional GWh to be generated by renewable sources for each year, starting with 300 GWh of renewable electricity in 2001 to 9500 GWh for 2010 and later years (s 40) . Similar to the NSW Energy Efficiency Scheme (discussed below),

of electricity they acquire from renewable energy sources (s 38). This percentage is called the Renewable Power Percentage. The Renewable Power Percentage is set by the Renewable Energy (Electricity) Regulations 2001 (Cth) (REE Regs) by 31 March for the year in which it applies. The Renewable Power Percentage is set by reference to the target for required GWh of renewable electricity for that year under section 40. The Renewable Power Percentage for 2015 is 11.11 % (REE Regs, cl 23(0)) . Liable entities meet their required amount of renewable energy for the year by purchasing and surrendering Large scale Generation Certificates (LGCs) from eligible renewable energy sources.

under the Renewable Energy Act, liable entities are required to meet a share of the RET in proportion to their share of the national wholesale electricity market (s 38).

A liable entity is defined in section 35 as one that makes a "relevant acquisition" of energy during a year. A relevant acquisition is defined as:

In 2009, the Renewable Energy Act was amended to increase the annual targets for renewable energy generation from 2010 to 2030. The target was increased from 9500 GWh to 12,500 GWh for 2010 and increased each year from 2010 to 45,000 GWh in 2020 and each subsequent year until 2030. In 2010, the Renewable Energy Act was amended to separate the scheme into two parts: the Large-scale Renewable Energy Target (LRET) and the Small-scale Renewable Energy Scheme (SRES) . The amendment was made due to a concern that the inclusion of small-scale technologies, such as household rooftop solar photovoltaic, which experienced a rapid uptake was flooding the market for renewable energy certificates and delaying investment in large-scale renewable energy projects. The annual targets for the LRET were reduced to 41,000 GWh by 2020 and onwards to account for the separate support mechanism for small-scale technologies, but the Government maintained its overall commitment to achieve 45,000 GWh and therefore 20 per cent of Australia's electricity would come from renewable sources by 2020. The SRES was forecast to deliver at least 4,000 GWh by 2020. The regulations specify the small-scale renewable

1.

a wholesale acquisition of electricity from the Australian Electricity Market Operator or the generator of the electricity (s 32), or

2.

a notional wholesale acquisition where:

energy target for each year. Under the Renewable Energy Act, the Climate Change Authority is responsible for carrying out a statutory review of the legislation every two years. The first review was carried out in 2012 and the Climate Change Authority recommended that the government retain the annual target of 41,000 GWh. The Climate Change Authority completed its second statutory review in 2014, again recommending that the government retain the existing target as the only policy instrument for electricity sector decarbonisation at reasonable cost. However, in 2014 the Abbott Government selected an expert panel to conduct a separate review of the RET. The Panel recommended that since electricity demand had been declining and forecasts for electricity demand in 2020 were much lower than anticipated when the annual targets were originally set in 2009, that the RET was "contributing to a large surplus of elect~icity generation capacity" and that the emissions reductions achieved through the RET were achieved at a "relatively high cost." Accordingly, the panel recommended that the RET should be scaled back. The Parliament subsequently amended the Renewable Energy Act to reduce the annual targets to 33,850 GWh in 2020 and 33,000 GWh for each year thereafter until 2030. The Renewable Energy Act was also amended to remove the requirement for further statutory reviews by the Climate Change Authority.

[10.330] The Act requires "liable entities" to purchase a certain percentage of the total amount

a)

the end user acquires electricity directly from the generator of that electricity (the generator being liable for the acquisition), or

b)

the end user generates its own electricity and the point at which the electricity is generated is 1 kilometre or greater from the point at which the electricity is used (s 33).

A liable entity must lodge an annual energy acquisition statement detailing their relevant acquisitions, any exemptions and the number of LGCs surrendered (s 44).

If a liable entity does not meet its required amount of renewable energy for the year it must pay the large scale generation shortfall charge (s 36). The rate of the shortfall charge is contained in section 6 of the Renewable Energy (Electricity) (Large-scale Generation Shortfall Charge) Act 2000 (Cth). In 2015 the large scale generation shortfall charge was $65 per MWh (megawatt hours).

Lorge-scale generation certificates [10.340] LGCs can only be created by an accredited power station and power stations are only

eligible for accreditation under the Renewable Energy Act if some or all of the power generated by the power station is generated from an eligible energy source (s 14(2)).

An eligible energy source is eligible waste coal mine gas or any of the following:

• hydro • wave • tide • ocean • wind • solar • geothermal-aquifer

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• hot dry rock • energy crops • wood waste • agricultural waste • waste from processing of agricultural products • food waste • food processing waste • bagasse • black liquor • biomass-based components of municipal solid waste • landfill gas • sewage gas and biomass-based components of sewage (ss 5, 17). Fossil fuels and materials or waste products derived from fossil fuels are specifically excluded by the Act from being considered to be "eligible renewable energy sources" (s 17). An accredited power station may create a certificate for each MWh of electricity generated by the power station during a year that is in excess of the power station's 1997 eligible renewable power baseline. The baseline is determined by the Clean Energy Regulator at the time the Regulator determines that the power station is eligible for accreditation (s 15(3)). One LGC can be created for each MWh of eligible renewable electricity produced by an accredited power station.

Small scale renewable energy scheme [10.350] In addition to the requirements of the LRET set out above, liable entities must also surrender small scale technology certificates (STCs) (see [10.360]) to meet the required surrender amount under the SRES each quarter.

The required surrender amount is ascertained for the first quarter by working out 35% of the previous year's relevant acquisitions (less any exemption), and multiplying that number by the small-scale technology percentage (s 38AE(l)). Like the large-scale renewable power percentage, the small-scale technology percentage is prescribed in the regulations by 31 March each year, but without reference to the targets set out in section 40 of the Renewable Energy Act (s 40A). For 2015, the small-scale technology percentage was 11.71 % (REE Regs, cl 23A). For quarters 2 and 3 the required surrender amount is only 25% of the previous year's acquisition (less any exemption) multiplied by the small-scale technology percentage (ss 38AE(2), 38AE(3)). Thus, following the third quarter, a liable entity will already have satisfied 85% of its obligation under the SRES for that calendar year based on the previous year's acquisitions. If the number of STCs surrendered at the end of each quarter does not meet the required surrender amount for that quarter, there will be a quarterly shortfall. For the fourth quarter, the required surrender amount for the entire year is determined by working out the relevant acquisitions for that calendar year (rather than the previous year's

[10.380]

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acquisitions) multiplied by the small-scale technology percentage. If that amount exceeds the total number of STCs surrendered for the entire year, then the liable entity has a quarterly shortfall for the fourth quarter. The small-scale technology shortfall is worked out by adding together the quarterly shortfalls (s 38AD). If a liable entity has a shortfall for a year it must pay the small-scale technology shortfall charge (s 38AB). The rate of charge is specified in section 6 of the Renewable Energy (Electricity) (Small-scale Technology Shortfall Charge) Act 2010 (Cth) and is $65 per MWh.

Small scale technology certificates [10.360] Small scale technology certificates (STCs) may be created from:

(1)

the installation of solar water heaters (s 21); and

(2)

small generation units (s 23A).

A small generation unit may be created for 1 MWh of electricity produced by: a)

solar photovoltaic systems that have a kW rating of no more than l00kW and generate not more than 250MWh of electricity each year

b)

wind energy systems that have a kW rating of no more than l0kW and generate no more than 25MWh of electricity each year

c)

hydro systems that have a kW rating of no more than 6.4kW and generate no more than 25 MWh of electricity each year (cl 3(2)).

The Regulator can create STCs when there is a supply shortfall and record a deficiency in the register (s 30P). The first STC that is registered is then cancelled from the register and the seller is paid the charge. The ability of the Clean Energy Regulator to create STCs ensures there is liquidity in the market. The Regulator also operates a clearing house for the transfer of STCs (s 30J). All STCs traded through the clearing house have a set price of $40 per MWh (including GST) (s 30LA).

Exemptions [10.370] The Renewable Energy Act provides for exemptions from the large-scale generation shortfall charge and small-scale technology charge for emissions-intensive trade-exposed activities (s 38A). The amount of a liable entity's exemption for a year is specified in an exemption certificate issued by the Clean Energy Regulator each year.

Greenhouse and Energy Minimum Standards [10.380] Implemented under the Greenhouse and Energy Minimum Standards Act 2012 (Cth)

(GEMS Act), this is a national legislative framework to regulate energy efficiency and labelling standards for appliances and other products that use electricity and other energy sources. The aim of the GEMS Act is to promote the development and adoption of products to reduce energy use and greenhouse gas production (see the objects in Division 3 of Part 2). This is achieved by applying greenhouse and energy minimum standards (GEMS) in association with the

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supply and commercial use of products that use energy, or affect the energy used by another product. These standards are provided for by requirements in Ministerial determinations (GEMS determinations ). Generally speaking, a product (a GEMS product) covered by a GEMS determination can only be supplied or offered for supply, or used for a commercial purpose, if:

• • •

the model of the product is registered under this Act against the determination the product complies with the determination

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energy efficiency of large office buildings. Approximately 900 buildings across Australia are covered by a Building Energy Efficiency Certificate (BEEC) 37 • Under the BEED Act, owners, landlords and sub-landlords must disclose certain energy efficiency information every time certain buildings are offered for sale, lease or sublease. These provisions apply to buildings with:

• •

the supply, offer or use complies with the determination.

Contravention of these rules may result in prosecution for offences or exposure to liability for civil penalties. GEMS determinations cover different product classes. They specify requirements for energy consumption, greenhouse gas production, labelling and some other matters, including the environment and human health. GEMS determinations currently apply to rotary clothes dryers, clothes washing machines, dishwashers, household refrigerators, fluorescent and incandescent lamps, external power supplies and power transformers, televisions and digital set-top boxes, air conditioners, heat pumps and water heaters, computers and computer monitors and more. There are transitional provisions under the GEMS determinations for products imported into or manufactured in Australia before the relevant determination came into force . Generally speaking, all models of GEMS products must be registered on the GEMS Register to make sure they comply with relevant GEMS determinations. A senior officer of the Department of the Environment (the GEMS Regulator) is responsible for the registration system and, more broadly, the administration of the GEMS Act. Compliance with the rules about supply and commercial use can be monitored, and suspected contraventions can be investigated, by GEMS inspectors appointed under the GEMS Act. The GEMS Act sets out the circumstances in which inspections can take place, the powers of inspectors and the requirements for obtaining warrants for entry to premises without consent and, in the case of investigation warrants, the seizure of evidential material. A contravention of the GEMS Act may result in prosecution for an offence, exposure to liability for a civil penalty (under an infringement notice or a court order), suspension or cancellation of registration, the imposition of enforceable undertakings and court orders for injunctions. Details of offences, contraventions and adverse decisions, including the names of those involved, may also be publicised. Decisions about registration may be reviewed internally and by the Administrative Appeals Tribunal. The GEMS Act also protects commercially sensitive information against unauthorised disclosure. The GEMS Act is intended to operate concurrently with State and Territory laws (s 9).

Building and energy efficiency disclosure [10.390] The Building Energy Efficiency Disclosure Act 2010 (Cth) (BEED Act) established the Commercial Building Disclosure (CBD) Program. The aim of the CBD Program is to improve the

chapter l 0 Climate change and energy

a lettable area of 2,000 m 2 or more: and where at least 75% of the space in the building (by net lettable area or gross lettable area if net lettable area is not available) is used or is capable of being used as an office.

This disclosure is by way of the issue and registration of a BEEC (s 13) and the advertisement of the energy efficiency rating of the building, known as the National Australian Built Environment Rating System (NABERS) Energy star rating. NABERS is a national rating system that measures the environmental performance of buildings, tenancies and homes. A BEEC may apply to a whole building or part of a building, for example for a specific tenancy. A BEEC must set out (s 13):

• • •

the energy efficiency rating for the building or part of the building an assessment of the energy efficiency of the lighting for the building that might reasonably be expected to remain if the building is sold, let or sublet other prescribed energy efficiency measures.

Penalties of 1,000 penalty units apply where a building or part of building is sold, leased or subleased without a BEEC being registered for that property (s 11) . Certain exclusions apply for the obligation to obtain a BEEC (s 17), such as where the transaction regarding the relevant building is between two wholly owned subsidiaries (s SA), or there is an unsolicited offer to buy or lease the relevant building.

NSW Energy Savings Scheme [10.400] The New South Wales Energy Savings Scheme (ESS) commenced on 1 July 2009. Similar to the now repealed NSW GGAS Scheme (see [10.40]) the ESS was introduced through an amendment to the Electricity Supply Act 1995 (NSW) . The ESS was originally designed to complement the proposed national emissions trading scheme by creating a financial incentive to reduce the consumption of electricity by encouraging energy saving activities. This would in turn lower electricity costs and reduce the need for additional energy generation, transmission and distribution infrastructure (s 98) . The ESS is different to the then existing NSW GGAS Scheme, as it is limited to activities that reduce the consumption of electricity, and does not apply to activities that reduce GHG emissions generally. The ESS will automatically terminate at the end of the year 2020 (s 178). The annual, state-wide ESS targets for increases in energy efficiency are set out in Schedule 5 of the Electricity Supply Act. The targets have increased each year from 0.01 (ie 1 % of all liable electricity acquisitions) in 2009 . For the years 2014 to 2020 the target is 0.05 or 5% of all liable electricity acquisitions in NSW. 37

Commercial Buil ding Disclosure, A National Energy Efficiency Program, see: http://www.cbd.gov.au, accessed 4 November 2015.

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Entities required to participate in the ESS are (s 101):

• retailers (ie NSW holders of electricity retail authorisations under the National Energy Retail Law) • prescribed electricity generators that supply electricity directly to a customer (ie AGL Macquarie Pty Limited and Delta Electricity) (see Electricity Supply (General) Regulation 2014 (NSW), cl 29)

• market customers who purchase their electricity directly from the National Electricity Market (Scheme Participants).

A liable acquisition is any purchase of electricity from the National Electricity Market, which is operated by the Australian Energy Market Operator, or any unregistered generators of electricity (including household rooftop solar photovoltaic) (s 107). However, there are certain exemptions for purchases of electricity by electricity-intensive, trade-exposed activities (s 119). The supply of electricity by a retailer for consumption or use in NSW is deemed to be a liable acquisition (s 107(2)). Therefore it is the retailer of the electricity that is generally liable under the ESS rather than the end-use customer, unless the customer purchases their electricity directly from the National Electricity Market. The state-wide ESS target is used as the basis for calculating each Scheme Participant's individual target (s 103). The individual target is determined by multiplying the state-wide ESS target for the year by the total number of liable acquisitions made by the Scheme Participant during that year to reach a megawatt hours (MWh) target. Therefore, each Scheme Participant will have a target proportional to their liable acquisitions for the year. Although the ESS is based on electricity consumption, the individual targets for scheme participants are expressed as tonnes of carbon dioxide equivalent (tCO 2 e) using an energy conversion factor of 1.01 tCO2e/MWh (Schedule 5). For example, a retailer has liable acquisitions in the year 2015 of 75,000 megawatt hours. To calculate the individual energy savings target, 75,000 must first be multiplied by 0.05, the energy savings scheme target for the year 2015. Accordingly, the retailer has a MWh target of 3,750. Then, 3,750 must be multiplied by the energy conversion factor of 1.01. The result is 3,787.5, which is then rounded up to 3,788. The retailer has an individual energy savings target for the year 2015 of 3,788 tCO 2 e. As will be explained below, the retailer can meet this target by surrendering 3,788 energy savings certificates (ESCs) to the Scheme Regulator, which is the Independent Pricing and Regulatory Tribunal (IPART). In order to comply with the ESS and meet their individual energy savings targets, each Scheme Participant must: 1.

calculate its individual energy savings target based on its annual liable acquisitions (s 106)

2.

obtain ESCs from Accredited Certificate Providers to offset any liable acquisitions above its target

3.

surrender those ESCs to IPART (ss 109, 110)

4.

lodge an Annual Energy Savings Statement with IPART to access compliance (s 123 ).

If a Scheme Participant does not surrender enough ESCs

to meet its individual energy savings target, it will have an energy savings shortfall (s 111). The Scheme Participant may elect to carry the shortfall forward to the following year only and surrender additional ESCs to cover the

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shortfall in the following year, provided that the shortfall carried forward does not exceed 10% of the scheme participant's individual target in the previous year (s 116). For any shortfall that is not carried forward, the Scheme Participant is liable to pay a penalty per tCO 2 e in the amount of the shortfall (s 112). The base penalty rate is $24.50 per MWh subject to adjustment for movements in the consumer price index. The scheme penalty rate is calculated by multiplying the base penalty rate by the penalty conversion factor of 0.94 (s 113 and Schedule 5A). The Scheme penalty rate for the 2015 calendar year increases to $26.54 per tCO 2 e. The Energy Savings Scheme Rule of 2009 provides for the creation of ESCs in respect of activities that reduce the consumption of electricity in NSW. In particular, it provides for:

• eligibility requirements of Accredited Certificate Providers

• • •

the types of eligible activities and equipment the calculation methods and factors used to create ESCs data collection and reporting requirements.

NSW solar feed-in-tariff [10.41 O] Feed-in tariffs for renewable energy were introduced in Australia in 2008 by some state

governments to subsidize and encourage the installation of small-scale, rooftop solar photovoltaic panels. The New South Wales Government introduced the Solar Bonus Scheme, a feed-in tariff scheme for small-scale, grid-connected, solar photovoltaic panels, which commenced on 1 January 2010. The scheme was enacted through the Electricity Supply Amendment (Solar Bonus Scheme) Act 2009 (NSW), which introduced section 15A into the Electricity Supply Act 1995 (NSW). Originally, section 15A required distribution network service providers to record a credit against charges payable by small retail customers of electricity of $0.60 for each kilowatt hour generated by a solar photovoltaic or wind generator with a capacity of no more than 10 kilowatts and supplied to the distribution network by small retail customers of electricity. In late 2010, section 15A was amended to reduce the feed-in-tariff to $0.20 per kilowatt hour. However, those small retail customers who had a grid-connected small-scale solar or wind generator before the commencement of the amending legislation on 28 October 2010, or otherwise satisfied the transitional provisions under the Electricity Supply Amendment (Solar Bonus Scheme) Act 2010 (NSW), will still receive $0.60 per kilowatt hour until the Scheme is repealed in its entirety on 31 December 2016. On 28 April 2011, the Solar Bonus Scheme closed to new applicants. However, those small-scale retail customers who connected to the network by meter installation on or before 30 June 2011, or otherwise satisfied the transitional provisions, will still receive $0.20 per kilowatt hour supplied into the grid until the scheme is repealed in its entirety on 31 December 2016.

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BAS IX - Building and Sustainability Index [10.420] The State Environmental Planning Policy (Sustainability Index - BASIX) 2004 introduced greenhouse gas efficiency requirements for all new homes in NSW. All development applications and complying development certificate applications for residential dwellings, residential flat buildings, townhouses and dual occupancies must include a completed BASIX certificate (see [15.1040]). Applications for alterations and additions to these building types worth more than $50,000 must also include a BASIX certificate. BASIX certificates assess the building location, house size, type of building materials and fittings for hot water, cooling and heating. The BASIX program includes a range of targets depending on the climate conditions of the region in NSW. In coastal NSW, BASIX aims to achieve a 40% reduction of greenhouse gas emissions and water savings benchmarked against an average NSW home prior to 2004. Greenhouse gas saving measures under BASIX includes: solar hot water heaters, double glazed windows, large eaves and ceiling insulation.

BASIX certificate commitments are enforceable as a condition of a development consent or complying development certificate under the EPA Act. In addition, the obligatory minimum energy requirements for new buildings and major refurbishments of houses and other residential, office, retail, car park, manufacturing/ processing and public buildings are contained in the Building Code of Australia.

Planning and energy projects [10.430] Certain energy projects, depending on scale and environmental impacts will require a number of approvals under planning (see Chapter 3) and environment (see Chapters 6 and 7) legislation.

Under State Environmental Planning Policy (State and Regional Development) 2011 (see [5.350]) a proposed development will be assessed as State significant development if it involves development for the purpose of electricity generating works or heat or their co-generation (using any energy source, including gas, coal, biofuel, distillate, waste, hydro, wave, solar or wind power) that:

• has a capital investment value of more than $30 million, or • has a capital investment value of more than $10 million and is located in an environmentally sensitive area of State significance.

High voltage electricity transmission lines and substations may trigger environmental assessment requirements under Part 5 of the EPA Act. They must be dealt with as State significant infrastructure (see [5.350]) where, in the opinion of a public authority or body proposing to carry out the development, an environmental impact statement would be required under Part 5 (see [6.190]). As a consequence of triggering the assessment and EIS provisions of Part 5, and being declared to be State significant infrastructure, the development would then be dealt under Part 5.1, rather than Part 5, of the EPA Act. In relation to the health effects of high voltage transmission lines, see Warren v Electricity Commission of NSW (unreported, NSWLEC, 31 October 1990). In July 2015, in conjunction with the long term lease of certain parts of the NSW electricity distribution network, the NSW Government released the NSW Code of Practice for Authorised

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Network Operators for public consultation (the Code). These privately managed network businesses are referred to as Authorised Network Operators (ANOs) by the Electricity Network Assets (Authorised Transactions) Act 2015 (NSW). The Code is sets out the requirements for ANOs to assess and self-determine the environmental impact of certain electricity network development under Part 5 of the Environmental Planning and Assessment Act 1979 (NSW) (see Chapter 9). The Code is authorized under cl 224K of the Environmental Planning and Assessment Regulation 2000.

Case study: Wind farms [10.440] Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd (2007) 161 LGERA 1; [2007] NSWLEC 59 dealt with the balance of environmental concerns created by a proposed wind farm. The applicant, a local residents group, appealed under section 98(1) of the EPA Act (see [5.1020]) against the Minister for Planning's decision to approve a commercial wind farm. Chief Justice Preston balanced the narrow geographical concerns of local residents of the impact of the wind farm on the scenic quality of the rural area against the broader public good concerning the ability of renewable energy to reduce the severity of climate change caused by greenhouse gases. He relied upon the principles of ecologically sustainable development (see [8.30]) and specifically the principle of intergenerational equity when reconciling these concerns. His Honour stated that renewable energy sources are an important method of reducing greenhouse gas emissions and preserving traditional energy resources for future generations and decided to allow the wind farm to be approved on the basis of the broader public good. His Honour held that a requirement of intergenerational equity is "as far as is practicable, to increasingly substitute energy sources that result in less greenhouse gas emissions for energy sources that result in more greenhouse gas emissions, thereby reducing the cumulative and long-term effects caused by anthropogenic climate change. In this way, the present generation reduces the adverse consequences for future generations" (at [75]).

499

11 Agriculture Gillian Duggin Senior Policy Officer, NSW Office of Environment and Heritage Former Environment and Planning Lawyer

Environmental planning controls ...................................................................................................................... [11.20] Leases and licences of Crown land .............................................................................................................. [ 11.160] Local Land Services .............................................................................................................................................. [11.290] Clearing and cultivation ...................................................................................................................................... [11.350] Soil conservation .................................................................................................................................................... [11.440] Pest and weed management .......................................................................................................................... [11.520] Genetically modified organisms ................................................................................................................. [11.1090]

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[11.10] This chapter provides an overview of NSW legislation governing the obligations of those involved in farming and other agricultural activities with regard to the land, plants and animals under their control.

The general approach of government has been not to require approval for establishing a farm in areas designated as rural. The exception is where the farming activities are intensive (see [11.40]). Farmers have traditionally been left to their own devices in running their farms except where their activities or their failure to take action has threatened to interfere with human health or land productivity. However, the obligations on farmers to protect the environment under their control have increased in recent years. Farmers must now usually obtain permission to clear vegetation, extract water, use pesticides, or pollute. They also have obligations to:

• ensure that agricultural sustainability is maintained; • protect native species; • control weeds and pests; and • conserve ecosystems on relatively undisturbed areas of their land.

It is therefore important to read this chapter in conjunction with the chapters relating to biodiversity, land use planning, water and pollution.

Environmental planning controls The requirement for development consent [11.20] As discussed in Chapter 3, the Environmental Planning and Assessment Act 1979 (NSW) provides the framework for environmental planning control in NSW. It establishes the foundation for environmental planning instruments (EPls), which categorise land into zones and list the types of development that are permissible (with or without consent) or prohibited in each zone.

The general approach in local government areas where there are rural or non-urban zonings is to permit most agricultural activities without the need for development consent. Animal establishments, however, particularly intensive establishments such as piggeries, cattle feedlots, poultry farms and abattoirs, usually do require consent. The Standard Instrument LEP Template (see [3.100]), which all local councils have now adopted, distinguishes this intensive agriculture from "extensive agriculture". Extensive agriculture can be carried out in zones "RU1 Primary Production" and "RU2 Rural Landscape" without the need for consent. Local councils may also identify "intensive plant agriculture" and "intensive livestock agriculture" as permissible with or without consent in these zones.

What is agriculture? [11.30] The LEP Template defines agriculture as any of the following:

(a)

animal boarding or training establishments

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(b)

aquaculture

(c)

extensive agriculture

(d)

farm forestry

(e)

intensive livestock agriculture

(f)

intensive plant agriculture.

"Extensive agriculture" is defined to include: (a)

the production of crops or fodder (including irrigated pasture and fodder crops) for commercial purposes

(b)

the grazing of livestock for commercial purposes

(c)

bee keeping

(d)

a dairy (pasture-based).

Intensive agriculture [11.40] The LEP Template defines "intensive livestock agriculture" as:

the keeping or breeding, for commercial purposes, of cattle, poultry, pigs, goats, horses or other livestock that are fed wholly or substantially on externally-sourced feed, and includes any of the following: (a)

dairies (restricted)

(b)

feedlots

(c)

piggeries

(d) poultry farms but does not include extensive agriculture, aquaculture or the operation of facilities for drought or similar emergency relief. "Intensive plant agriculture" is defined as: (a)

the cultivation of irrigated crops for commercial purposes (other than irrigated pasture or fodder crops)

(b)

horticulture

(c)

turf farming

(d)

viticulture.

SEPP 30 [11.50] State Environmental Planning Policy 30: Intensive Agriculture (SEPP 30) recognises that specific types of intensive agriculture have potentially adverse environmental impacts. Its purpose is to achieve greater consistency across the State in environmental planning and assessment for cattle feedlots and piggeries. It requires development consent for cattle feedlots for more than 50 cattle, and piggeries for more than 200 pigs or for 20 or more breeding sows, regardless of the provisions of particular LEPs, except where such development is prohibited (SEPP 30, cl 6).

Consent is obtained from the local council, or for land in the Western Division that is not within a local government area, the Western Lands Commissioner (cl 5), or any other person that

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is designated as the consent authority in accordance with an environmental planning instrument. When considering a development application, the consent authority is required to consider additional matters including the potential for odours to adversely impact the amenity of neighbouring properties, the potential for water pollution and soil degradation and any steps proposed to mitigate adverse impacts (cl 7).

Designated development [11.60] Some intensive agricultural activities are also classified as designated development. This means an environmental impact statement must be prepared, the development application must be advertised for 30 days, and appeals by third-party objectors on the merits of the proposed development are allowed (see [2.350]).

Activities classified as designated development include:

• intensively housed piggeries accommodating more than 2,000 pigs or 200 breeding sows • livestock feedlots accommodating more than 1,000 cattle, 4,000 sheep, or 400 horses • dairies accommodating more than 800 cattle for milk production • poultry farms that accommodate more than 250,000 birds • sales yards with an annual throughput of more than 50,000 cattle or more than 200,000 animals of any type • smaller piggeries and poultry farms located near sensitive areas such as wetlands, water catchments and residential zones (Environmental Planning and Assessment Regulation 2000, Sch 3, cl 21). Other agricultural activities that are classified as designated development include agricultural produce industries, aquaculture and livestock processing industries (Environmental Planning and Assessment Regulation 2000, Sch 3, cll 1, 3, 22).

State significant development [11. 70] Under the State Environmental Planning Policy (State and Regional Development) 2011

(see [3.460)), intensive livestock agriculture with a capital investment value of more than $30 million are classified as State significant development, requiring the consent of the Minister (see [5.350)). Agricultural produce industries (such as abattoirs, milk factories, sugar refineries, cotton gins and silo complexes) with a capital investment value of more than $30 million are also classified as state significant development.

Clearing vegetation [11.80] Approval is generally required to clear native vegetation in rural areas of NSW. Under

the Native Vegetation Act 2003 (NSW), consent under Part 4 of the Environmental Planning and Assessment Act 1979 or an approved property vegetation plan (PVP) is required to clear native vegetation on land to which the Act applies (Native Vegetation Act 2003, s 12). The Act does not apply to urban areas in NSW (s 5, Sch 1). There are a number of exemptions that enable clearing without a PVP or consent, including "routine agricultural management activities" (s 22). Landholders may be able to clear under recently developed "self-assessable codes" for low risk clearing activities (that are declared as routine agricultural management activities), such as

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clearing invasive native species and clearing paddock trees in cultivation areas (Native Vegetation Regulation 2013). For a detailed discussion of the legislative regime in relation to the protection of native vegetation, see [12.1360]-[12.1440]. As noted at [12.1670), the Government is proposing to reform NSW's biodiversity legislation, which includes repealing the Native Vegetation Act 2003 and transfer regulation of clearing into both the Environmental Planning and Assessment Act 1979 and the Local Land Services Act 2013 1 •

Clearing on State protected land [11.90] Before the Native Vegetation Act 2003 came into operation, certain areas of NSW were categorised as "State protected land" because of their vulnerability to soil erosion, sedimentation and land slip. These areas have since been mapped on vulnerable land maps which are available from the NSW Office of Environment and Heritage. Vulnerable land includes land sloped at over 18 degrees, riparian land, and sensitive land (as defined in the repealed Native Vegetation Conservation Act 1997, s 7). All native vegetation on steep or highly erodible land or protected riparian land that is regrowth, is identified as 'protected regrowth' under the Native Vegetation Act 2003 (see [16.370)).

The Native Vegetation Act 2003 is concerned not only with protecting native vegetation for biodiversity conservation, but also for the prevention of salinity, land degradation and water pollution (s 3). Where it applies, it regulates clearing in these areas (see [12.1370]-[12.1560]). Moreover the routine agricultural management activities exemption is very limited on protected riparian land (Native Vegetation Regulation 2013, cl 59). The Native Vegetation Act 2003 does not apply to the clearing of exotic vegetation, and until a decision of the Land and Environment Court (Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 2) [2010) NSWLEC 73 ), there was an understanding that it did not apply to the removal of dead vegetation. In these two circumstances, the provisions of earlier legislation, the Native Vegetation Conservation Act 1997, continue to operate on areas mapped as State protected land even though this legislation has otherwise been repealed (Native Vegetation Regulation 2013, cl 65). As with the Native Vegetation Act 2003, the Native Vegetation Conservation Act 1997 in essence requires development consent to be obtained for clearing, subject to certain exemptions. Neither piece of legislation applies in urban zones outside the Sydney and Newcastle areas.

The protection of rural land [11.100] Some EPis are concerned with protecting productive agricultural land from the threat of residential subdivision and subdivision for hobby farms. For example, Sydney Regional Environmental Plan No 8 (Central Coast Plateau Areas) provides that on land to which it applies (cl 6): The Independent Biodiversity Legislation Review Panel's report, A Review of Biodiversity Legislation in NSW: Final Report, the recommendations from which the Government has supported and proposed to implement as an integrated package of reforms, can be found here: http://www.environment.nsw.gov.au/resources/biodiversity/ BiodivlawReview.pdf. At the time of writing, the status of these reforms was unclear.

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development consent must not be granted for development on prime agricultural land unless the council is satisfied that carrying out the development would not adversely affect the present or future use of other prime agricultural land for the purposes of agriculture; and consent must not be given for a non-agricultural purpose unless the council is satisfied that there is no viable or workable alternative site that is not prime agricultural land.

Protecting rural land through LEPs [11.11 OJ The policy of protecting rural land is also reflected in the rural zones of the Standard Instrument LEP Template. For example, the RUl Primary Production zone includes the following objectives:

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To encourage diversity in primary industry enterprises and systems appropriate for the area. • To minimise the fragmentation and alienation of resource lands. • To minimise conflict between land uses within the zone and land uses within adjoining zones.

Councils may include additional objectives within their LEPs, so long as they are consistent with the core, mandatory objects included in the LEP Template. For example, the Muswellbrook Local Environmental Plan 2009 also includes, for this zone, objectives "to protect the agricultural potential of rural land not identified for alternative land use" and "to ensure that development for the purpose of extractive industries ... will not destroy or impair the agricultural production potential of the land ... " (amongst others).

Protecting rural lands through SEPPs [11.120] Some SEPPs are directed specifically towards protecting agricultural land, in particular by attempting to manage competing or conflicting land uses in agricultural areas.

SEPP [Rural Lands) 2008 [11.130] The State Environmental Planning Policy (Rural Lands) 2008 identifies "rural planning principles" and "rural subdivision principles". These are designed to assist in the management, development and protection of rural lands, for the purpose of promoting the social, economic and environmental welfare of NSW. Councils have been directed to exercise their functions relating to local environmental plans in accordance with these principles (ell 7, 8). In addition, consent authorities are required to consider various matters in determining development applications for rural subdivisions or rural dwellings, including the compatibility with existing uses in the vicinity.

The policy also aims to identify State significant agricultural land to provide for the protection of that land and to ensure the ongoing viability of agriculture on that land (cll 2, 12) . However at the time of writing, no land has been identified by the policy as State significant agricultural land. Finally, the policy provides for the establishment of rural lands planning panels, to advise the Director-General of the Department of Planning and Environment with respect to a rural lands development application that contravenes a development standard.

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SEPP 15 - Rural Landsharing Communities [11.140] State Environmental Planning Policy No 15 - Rural Landsharing Communities is designed to facilitate multiple occupancies in rural areas, where a group of people, not necessarily related, live on a single property in several dwellings. The policy allows development consent to be given in certain circumstances (cl 7) for three or more dwellings on non-subdivided rural or non-urban zoned lots of no less than ten hectares, in a number of council areas outside the main conurbations. However, no more than 25% of the land concerned can be prime crop and pasture land. One of the factors that councils must consider before giving consent is the effect of the development on the agricultural use of the land and lands in the vicinity, including the need for separation and buffers to avoid land use conflicts (cl 9(1)(m)).

A review of a number of SEPPs by the Department of Planning and Environment in 2015 has proposed repealing this SEPP (draft SEPP (Integration and Repeal) 2015) and replacing its arrangements for communal land sharing with a flexible provision in local environmental plans.

SEPP [Mining, Petroleum Production and Extractive Industries) 2007 {Mining SEPP) [11.150] Although not directed towards agriculture specifically, the Mining SEPP was amended in 2013 (Part 4AA) in an attempt to balance conflicts between the use of agricultural land for mining and extractive industries, including coal seam gas. Under the Mining SEPP, "biophysical strategic agricultural land" (BSAL) is identified and mapped. For this land, any state significant mining or petroleum development such as coal seam gas is subject to additional scrutiny.

An application for mining or petroleum activities on BSAL is subject to scrutiny by a Mining and Petroleum Gateway Panel (cll 17N-17U). Development applications must attach a Gateway Certificate, if the subject land is BSAL (Environmental Planning and Assessment Regulation 2000, cl 50A). The Panel is to provide a Gateway Certificate advising whether the proposed development meets specific criteria, which include "that the proposed development will not significantly reduce the agricultural productivity of any biophysical strategic agricultural land". This is to be based on considering impacts on land through surface area disturbance, soil fertility, highly productive groundwater (amongst others); fragmentation of agricultural land uses, and any reduction in the area of biophysical strategic agricultural land (cl 17H). Before determining a development application for mining or petroleum development on BSAL, the consent authority must refer and then consider advice of the Minister for Primary Industries on potential impacts on water resources and any advice set out in the Gateway Certificate (cl 17B).

Leases and licences of Crown land [11.160] The two main types of land tenure in NSW are freehold and leasehold. Most urban

land in NSW is held in freehold tenure, which means that it can be used and sold by the owner subject to any legislative obligations that relate to it, including environmental planning controls.

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Crown land

Resumption

[11.170] Crown land is managed by the Crown Lands Division (Department of Primary

[11.190] The State government retains the right to resume (by agreement or by compulsory process) leased Crown lands for public purposes (Crown Lands Act 1989, s 135; Western Lands Act 1901, s 18, Sch 1). Compensation is payable when land is acquired compulsorily, m accordance with the Land Acquisition (Just Terms Compensation) Act 1991 (NSW).

Industries (Lands)) in accordance with the Crown Lands Act 1989 (NSW) and the Western Lands Act 1901 (NSW) (see [4.40]). These Acts reflect the division of Crown land in NSW into the Eastern and Central Division, and the Western Division (Crown Lands Act 1989, s 4). The Crown Lands Act 1989 gives the Minister broad powers to deal with Crown land. The Minister can, "in such a matter and subject to such terms and conditions as the Minister determines," sell, lease, exchange or otherwise dispose of or deal with Crown land, and grant easements, rights of way over, or licences and permits in respect of Crown land (s 34). Sale or leasing for more than 5 years must be notified for at least 14 days. However, the sale of Crown land that is reserved for a public purpose is not authorised (s 34(6)). Crown land comprises approximately half of all the land in NSW. Some of this land is reserved for national parks and public recreation uses; other areas are dedicated for uses such as State forests, roads, wharves, schools, hospitals and sports grounds. The most significant portion of Crown land in NSW is leased or licensed for commercial and agricultural purposes. The general power of the Minister to lease or license Crown land is contained in section 34 of the Crown Lands Act 1989. Land in the Eastern and Central Division may be leased for up to 100 years (Crown Lands Act 1989, s 41). Land in the Western Division may be leased for a term of no more than 40 years, or in perpetuity (Western Lands Act 1901, s 28A( 3) ). Tenants of land under lease to the Crown must use their land in accordance with the terms of their lease, the Crown Lands Act 1989 and the Crown Lands (Continued Tenures) Act 1989 or the Western Lands Act 1901, and any other general legal obligations which also apply to freehold landholders. It should be noted that reform of the legislative framework for Crown lands has been proposed in a Crown Lands Legislation White Paper 2 that was released in 2014. This paper proposes repealing eight pieces of legislation including the Crown Lands Act 1989 and the Western Lands Act 1901 and consolidating their provisions into one streamlined piece of legislation. Although it proposes carrying over many of the existing approaches to tenure, key changes include improving management of Crown reserves, permitting greater flexibility for Western Lands leases, and stronger enforcement provisions.

At the time of writing, the status of these proposed reforms was unknown.

Leaseholders' right of purchase [11.180] Leaseholders of Crown land who have complied with the terms of their lease may

apply to the Minister to purchase the whole or part of the leased land (Crown Lands (Continued Tenures) Act 1989, Sch 7). The Minister has a discretion to exclude from purchase land required for roads, public access or other public purposes (Crown Lands (Continued Tenures) Act 1989, Sch 7). 2

Available on line at http://www.lpma.nsw.gov.au/_ data/assets/pdf_file/0009/196434/Crown _Lands_White_paper_ accessible.pdf

In the Eastern and Central Division [11.200] Private interests in Crown land in the Eastern and Central Division, generally used for the purposes of grazing, agriculture and mixed farming, were originally granted under the provisions of the Crown Lands Consolidation Act 1913 (NSW) and earlier Crown lands legislation, all of which have now been repealed by the Crown Lands Act 1989. Most of these leases were granted when primary industry was being developed and encouraged in NSW and there was little concern for environmental protection, except where environmental problems such as soil degradation affected agricultural productivity. Under many leases, landholders were required to carry out "improvements", which included the clearing of land for agriculture and the erection of boundary fences (Crown Lands Consolidation Act 1913, ss 118(1), 130(4), 48, 49).

Tenure under the Crown Lands [Continued Tenures} Act [11.21 0] The numerous types of lease that could be granted by the Crown under the Crown

Lands Consolidation Act 1913 and earlier legislation may no longer be issued in NSW, although existing tenures are protected and continue under the provisions of the Crown Lands (Continued Tenures) Act 1989. This Act simplifies the categories of existing tenures, and divides what used to be 50 different types of leasehold interests into a number of broad categories, including:

• • •

perpetual leases, which confer a right to exclusive possession in perpetuity rather than for a specific term (Crown Lands (Continued Tenures) Act 1989, Sch 1, Pt 2) term leases, which are for a specified duration of years (Crown Lands (Continued Tenures) Act 1989, Sch 1, Pt 3) permissive occupancies, which allow the occupation of Crown land subject to conditions specified in the lease, usually for grazing (Crown Lands Consolidation Act 1913, ss 70, 226(1)). Permissive occupancies can be terminated at the will of the Minister (Crown Lands (Continued Tenures) Act 1989, Sch 2, Pt 6, cl 5).

Changes to lease conditions [11.220] Old conditions of Crown leases requiring improvements to be made will now almost certainly be exhausted, but the Minister also has the power to remove them and any other conditions of leases that are likely to have a detrimental effect on the environment (Crown Lands Act 1989, s 140). The Minister can also exempt leaseholders from complying with conditions, for example, if they will have an adverse effect on the environment (Crown Lands Act 1989, s 139(2); Crown Lands Regulation 2006, cl 38). However, the same provisions could equally be used to override conditions designed to protect the environment.

The Crown Lands (Continued Tenures) Act 1989 seeks to ensure that conditions affording environmental protection apply to some leasehold interests continued under the Act - perpetual

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and term leases - even if they were not part of the original lease terms (Sch 6). The legislation states that the leaseholder must not degrade the land (Sch 6, cl 2(3 )). Precisely what this means is not made explicit, but it could include overstocking and the removal of vegetation where this is likely to cause soil erosion or salinity. Permission must also be obtained from the Minister to extract any material in or on the land, and to take timber, except where it is to be used on the land (for building, for example) or is authorised by a clearing licence issued under the Forestry Act 2012 (NSW). Apart from these statutory additions, the general position is that lease purposes and conditions can only be added to or altered with the leaseholder's consent. However, the legislation allows agreements to be made whereby the Minister may vary the lease either conditionally or unconditionally, and the Minister may re-determine the rent (Crown Lands Act 1989, s 139).

Leases and licences under the Crown Lands Act [11.230] The interests that can be granted over Crown land have been vastly simplified by the

Crown Lands Act 1989. Perpetual leases, term leases and permissive occupancies of Crown land are no longer available in NSW. If land is not sold, it can be leased for up to 100 years (Crown Lands Act 1989, ss 34, 41), or the use or occupation of Crown land can be authorised under a non-transferable licence, revocable at will by the Minister unless a period of notice is specified (ss 45 - 50). The Minister has a discretion as to what conditions are to be attached to leases and licences of Crown land (s 34). This represents a shift towards making leases under the Crown Lands Act 1989 more like those for any other lease of land, rather than setting out lease conditions in the legislation. Leases and licences can be forfeited for breach of a condition of a lease or of statute (ss 129 - 132). However, unless the breach involves non-payment of rent, this rarely, if ever, happens. Crown land may be withdrawn from a lease or licence if required for any public purpose, but compensation must be paid (s 136(4)).

Sale of Crown land [11.240] Conditions can also be attached to contracts for the sale of Crown land (Crown Lands Act 1989, ss 34, 36, 37). Although there is a specific reference to a condition requiring the erection of a building on the land (s 36), there is also Ministerial discretion for conditions designed to protect the environment, for example, by prohibiting land clearing or a change of current use.

However, restrictive conditions on the sale of land are generally avoided in order to maximise the value of the land and to minimise problems associated with ongoing enforcement. In the past, the policy has been to reserve from sale Crown land on which there are important environmental features.

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Leases are granted either in perpetuity or for a term not exceeding 40 years. The term of a lease granted under section 28A may be extended for a further term not exceeding 40 years (s 28B). However, the Minister may also extend the term of an existing lease for a term in perpetuity, unless it is "contrary to the public interest" or "otherwise undesirable" (s 18E(2)(a)). The Minister may impose additional conditions on any lease extended in perpetuity for the leaseholder to improve and maintain the land "to reasonably increase the carrying capacity" such as conditions relating to water supply, and destroying noxious animals such as rabbits and wild dogs (s 18E(5)).

Statutory lease conditions [11.260] There are special provisions regulating the clearing and cultivation of leasehold land

(see [11.350]). Apart from this, all leases of land in the Western Division, whenever granted, are subject to certain statutory conditions (Western Lands Act 1901, Pt 5 and Sch 1). Those conditions include (Part 5 and Sch 1):

• paying rent • destroying noxious animals and vermin • controlling noxious weeds under the Noxious Weeds Act 1993 (NSW) • not obstructing or interfering with reserves, roads or tracks • permitting the Western Lands Commissioner to enter the land, or buildings or improvements • fencing boundaries • not removing material except timber and other material for building on the land as reasonably required by the tenant • not cultivating land that is leased for the purpose of grazing, without the written consent of the Western Lands Commissioner • not overstocking the land.

The Western Lands Commissioner can direct the tenant to take measures to protect the land. This may include directions to (s 18D(l)(d)):

• • • •

preserve trees, scrub and vegetative cover prevent overstocking cultivate edible shrubs and plants protect the land from soil erosion and other damage.

The provisions of conservation agreements under the National Parks and Wildlife Act 1974 take priority over these provisions to the extent of any inconsistency (s 18D(2); [12.1610]).

Enforcement of lease conditions

In the Western Division [11.250] Leases in the Western Division of NSW can be granted for a range of purposes including grazing, agriculture, mixed farming and carbon sequestration (Western Lands Act 1901, s 28A).

[11.270] It is a criminal offence to contravene certain conditions of a lease granted under the

Western Lands Act 1901 (s 49). Failure to obey a direction of the Western Lands Commissioner issued under section 18D(l)(d) to protect the land, for example, attracts a penalty of up to 100 penalty units (s 49(1)(6)). Breaches of other lease conditions can also be designated as criminal offences in regulations made under the Western Lands Act 1901 (s 49(1)(i)).

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Rather than prosecuting for breach of a lease condition, the Commissioner ordinarily issues a written notice requiring the leaseholder to comply and to take steps to rectify matters (s 47). Failure to comply with such a notice does not amount to a criminal offence, unless the land is being used for a purpose other than that for which the lease was granted, or being cultivated without consent of the Commissioner (s 49(2)). The Commissioner can arrange to have the remedial measures taken at the leaseholder's expense (s 48). Leases are subject to forfeiture where conditions are not complied with or the land is not being used for the specified purpose (s 28BA), but this is a sanction of last resort and has rarely, if ever, been used.

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Levying rates [11.300] The LLS Act enables LLS to make and levy rates, levies and contributions on rateable land (Part 5). The Local Land Services Regulation 2014 provides that LLS may make rates based on the notional carrying capacity of rateable land (Part 2).

Travelling stock reserves [11.31 0] The LLS Act provides for the vesting of care, control and management of travelling stock reserves in LLS by the Minister administering the Crown Lands Act 1989 (other than land

comprising a State forest, or subject to a Crown lease in the Western Division).

Sole of Western Division land [11.280] Leaseholders in the Western Division may apply to purchase the leased land, and the

Minister may allow the sale, except certain leases granted for grazing or pastoral purposes and in certain circumstances, leases granted for agriculture and mixed farming purposes (Western Lands Act 1901, s 28BB and Sch 4; Crown Lands Act 1989, s 34). The Minister is not to grant an application unless satisfied that the continued use of the land is "ecologically sustainable" (Western Lands Act 1901, Sch 4, cl 3), however the meaning of this term is not specified in the legislation.

• • •

Travelling stock reserves are defined as: any route or camping place reserved for travelling stock route or camping under the Crown Lands Act 1989 any reserve for travelling stock, water reserve, reserve for access or crossing, or any stock watering place (s 61).

SEPP (Infrastructure] 2007

Local Land Services [11.290] Local Land Services (LLS) was established by the Local Land Services Act 2013 (LLS Act) to replace both the Livestock Health and Pest Authorities (established under the Rural Lands Protection Act 1998) and Catchment Management Authorities (established under the Catchment Management Authorities Act 2003).

LLS has functions including administering, delivering or funding local land services, providing and facilitating education and training in connection with agricultural production, biosecurity, natural resource management and emergency management, amongst other things (LLS Act, s 14). "Local land services" are defined to include programs and advisory services associated with:

• agricultural production • biosecurity, including animal pest and disease and plant pest and disease prevention, management, control and eradication • preparedness, response and recovery for animal pest and disease and plant pest and disease emergencies • animal welfare • chemical residue prevention, management and control • natural resource management and planning • travelling stock reserves and stock watering places • control and movement of stock (s 4 ).

This chapter considers the responsibilities assumed by the LLS that were previously the responsibility of the Livestock Health and Pest Authorities, travelling stock reserves and some biosecurity matters. Chapter 16discuses other areas of responsibility for LLS.

[11.320] State Environmental Planning Policy (Infrastructure) 2007 permits development for the purpose of maintaining or managing a travelling stock reserve to be carried out by, or on behalf of a public authority without development consent. However, development consent is required for the erection of buildings (or reconstruction or alteration) and for any development designed to change the use or purpose of the reserve (cll 118, 119).

Removing timber and other vegetation [11.330] LLS must not remove timber from an area of more than one hectare within a controlled travelling stock reserve unless it has given the Forestry Corporation at least three months written notice (LLS Act, s 66). Before deciding whether to remove timber from a controlled travelling stock reserve that adjoins a national park or nature reserve, the LLS must consult with the Chief Executive of the NSW Office of Environment and Heritage and give due consideration to any representations made (s 66(2), (3)). The LLS must comply with the provisions of the Native Vegetation Act 2003 when carrying out any action in respect of a controlled travelling stock reserve (s 69).

Access and use [11.340] In the Eastern and Central Divisions, travelling stock reserves can ordinarily be used

for specified recreational purposes, including walking, horse-riding, swimming and fishing (LLS Act, s 74; Local Land Services Regulation 2014, cl 62). Apart from this, access and use is controlled through reserve use permits (s 77) and stock permits (s 78). The National Parks and Wildlife Act 1974 requires the concurrence of the Minister for the Environment before the issue of a permit to graze over a travelling stock reserve within the boundaries of a national park or historic site (National Parks and Wildlife Act 1974, s 40).

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Permits are subject to conditions as prescribed by the regulations (Local Land Services Regulation 2014, cl 73) or specified in the permit (LLS Act, s 83 ). The LLS can cancel or suspend the rights of permit-holders in writing at any time, including if an offence against the Act or Regulations, a breach of permit conditions occurs, or if cancellation or suspension is necessary for the protection of stock, a public road or travelling stock reserve (LLS Act, s 81).

Clearing and cultivation [11.350] Preparing rural land for agriculture by clearing native vegetation is primarily regulated

under the Native Vegetation Act 2003 (NSW). This legislation is discussed in detail in Chapter 12, [12.800]. As previously noted, this legislation is under review and has been proposed to be repealed and replaced with a new regulatory framework (see [12.1670]). This part addresses additional regulations that apply to clearing and cultivation in the Western Division.

Clearing in the Western Division [1 1.360] It is a condition of any lease of more than half a hectare under the Western Lands Act

1901 that native vegetation must not be cleared except in accordance with the Native Vegetation Act 2003 (Western Lands Act 1901, s 18DB) (see [12.1370)-(12.1540]). However, that condition does not apply to clearing for the purpose of obtaining timber for use on the leased land for building, fencing or firewood (s 18DB(4)).

Cultivation in the Western Division [11.370] Cultivation of land in the Eastern and Central Divisions is regulated only in very

limited situations, such as where agriculture requires development consent and there are no nonconforming use rights (see [5.410]). However, the Western Lands Act 1901 contains a special regulatory regime covering cultivation in the Western Division. This is because cultivation in arid and semi-arid areas causes land degradation, and may ultimately destroy the native seed pool.

Requirement for consent Under the Western Lands Act 1901 and the Western Lands Regulation 2011, leaseholders and occupiers of land in the Western Division (s 18DA, cl 17) can cultivate land only with the written consent of the Western Lands Commissioner (s 18DA(3)). This applies to both land preparation and the further cultivation of previously cultivated land (s 18DA(2)). Clearing native vegetation is specifically excluded from the definition of "cultivate". [11.380]

These provisions do not apply to freehold land or land in the process of being purchased from the Crown, however since December 1996, grazing or pastoral leases cannot be converted to freehold (s 28BB). Before making a decision on an application for consent to cultivate land, the Commissioner must obtain advice from the Soil Conservation Service (s 18DA(5)).

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Exemptions [1 1.390] There are a number of exemptions from the requirement to obtain consent for

cultivation (s 18DA; cl 18 and Sch 3). Consent is not required where the lease or licence was specifically granted for agricultural purposes or mixed farming (Reg, Sch 3(1)). In these circumstances, cultivation is regulated by conditions attached to the lease (see [11.260]). Another exemption covers situations where the cultivation is to be carried out on a once-only basis to allow the introduction of pasture (Reg, Sch 4(5)). Despite the exemptions, the Commissioner may decide to require an application to be made for consent, if considered appropriate (cl 18(3)).

Conditions of consent [1 1.400] Cultivation consents are subject to conditions. These are designed to:

• minimise the risk of soil erosion (for example, through stubble retention) • limit activities such as overgrazing in areas of erosion, land degradation and salinity risk, and • retain a seed bank of native species to allow regeneration if cropping ceases. Enforcement [1 1.41 0] A leaseholder may forfeit leased land if cultivation is carried out other than in accordance with the terms of a consent (Western Lands Act 1901, s 18DA(l2)). The lessee can appeal to the Land and Environment Court against a decision of the Minister to declare the lease forfeited (s 50).

Criminal proceedings can be brought against anyone who cultivates land without consent, with a maximum penalty of 100 penalty units (s 49(1)(a)(i), (2A)). The Western Lands Commissioner must consent to prosecutions, which must be commenced within 12 months of the offence (s 52(2), (4)). In practice, prosecutions are a last resort. More usually, the Commissioner serves a notice requiring cessation of the illegal cultivation and the implementation of rectification measures (s 47). Failure to comply is an offence, with a maximum penalty of 100 penalty units (s 49(2), (2A)). The Commissioner can have remedial measures taken and recover the costs from the lessee (s 48).

Where a condition of a cultivation consent has been breached, the Commissioner can suspend the consent, or even cancel it altogether, although before cancellation the lessee or occupier must be allowed a hearing (s 18DA(8A)).

The Commissioner's power to suspend or cancel consent [11.420] The Commissioner has the right to suspend, or cancel, a consent even where the holder

is complying with all its terms (s 18DA(8A), (8B)). This power can be used, for example, where cultivation causes more environmental damage than was anticipated when the consent was first

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granted. This is significant because the legislation specifies no maximum period for cultivation permits, and many early permits were issued in perpetuity.

(11.480)

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Catchment areas and areas of erosion hazard [11.450] Catchment areas can be identified by notification in the NSW Government Gazette if

Case study: Revocation of a cultivation permit [11.430] The case of Keech v Western Lands Commissioner [2003] NSWLEC 215 involved an appeal under s 18DA of the Western Lands Act 1901 against the Commissioner's decision to revoke a cultivation permit for breach of condition. The Keeches had acquired the lease to the lake bed of Narran Lake, near Walgett. The Narran Lake is a listed Ramsar wetland, indicating its importance as breeding and feeding for waterbird species. The lake bed is usually dry, however flood events enable the land to be cultivated, and the previous lessee had obtained a cultivation permit for part of the land. After the Keeches had acquired the lease of the land, the Commissioner revoked the cultivation permit because it was determined that the lessees had breached the lease by cultivating in excess of 1,000 hectares than what was permitted.

Despite the likely economic loss that the Keeches would suffer due to the reduced capacity to cultivate the land, the Court dismissed the appeal and found that the environmental harm caused by the breach and the harm that would be caused by continuation of the permit, outweighed the economic consequences. The Court particularly acknowledged the need to apply the precautionary principle, a component of the objects of the Western Lands Act 1901, designed to ensure that land is used in accordance with the principles of ecologically sustainable development (see [5.1350]).

Soil conservation [11.440] Soil conservation is essential to productive agriculture. Soil quality can be improved or degraded by farming practices. It can be damaged by erosion, compaction, salinisation, acidification and pollution by toxic chemicals. It can be improved through sustainable

management practices and the careful use of fertilisers and pesticides. The Soil Conservation Act 1938 (NSW) provides the framework for the management of soil erosion. The following discussion focuses on attempts to combat erosion stemming from agricultural activities. However, the provisions also apply to residential subdivisions - a major source of soil erosion. See also the discussion of vegetation clearance (above [11.80]). The Minister for Lands and Water and the Minister for the Environment have joint responsibility for the conservation of soil resources, mitigation of soil erosion and land degradation and conservation of water resources in accordance with the Soil Conservation Act 1938. The law operates on the assumption that most farmers will cooperate in attempts to deal with land degradation. The regulatory avenues available under the Act have rarely, if ever, been used.

the Minister believes that the stability of a watercourse, body of water or catchment is threatened by soil erosion, siltation or land degradation (Soi/ Conservation Act 1938, s 20(1)). Areas of erosion hazard can also be notified in the Gazette. These are tracts of land that are subject to erosion or likely to become so (s 17(1)). In practice, these provisions have never been used, although the Act itself designates the catchment area of the Snowy River and its tributaries as an area of erosion hazard (s 16). The Commissioner of the Soil Conservation Service must prepare schemes of operations for all catchment areas and areas of erosion hazard as soon as practicable after they have been constituted (Soil Conservation Act 1938, s 10(1)). The schemes must deal with soil conservation, erosion mitigation, or the conservation of water resources (s 10(1)). Once a scheme of operations has been approved by the Governor, it becomes known as a project (s 10(5)). Agreements may then be voluntarily entered into between landholders and the Minister addressing various matters including limiting stock numbers, methods of land utilisation and land management, and financial assistance (s 11).

The voluntary approach [11.460] Other provisions reinforce this focus of the Soil Conservation Act 1938 on gaining landholders' co-operation. The Minister can make low-interest loans to landholders for necessary works on farming land, provided farming activities will be carried out efficiently and with a reasonable prospect of success (ss 22B- E). Conditions relating to land use can be attached to the loan, and the arrangement terminated if they are not complied with (s 22K(2)(a)).

Alternatively, at the landholder's request (and expense), the Minister can arrange for the works to be carried out, perhaps at a subsidised cost (ss 13, 14, 22H, 22K(3), 22L - P). The Minister can also lease machinery and equipment and provide labour and materials to carry out the works, again at the landholder's expense (ss 14A, 221).

Regulation [11.470] In some circumstances the Minister and the Commissioner can regulate to ensure soil

conservation rather than relying on voluntary co-operation, although these provisions are seldom, if ever, used. These measures can be used against government bodies - the Soil Conservation Act 193 8 binds the Crown - although they cannot be prosecuted for offences under the Act (s 31A).

Section 18 notices [11.480] If a landholder in an area of erosion hazard fails to enter into an agreement to give effect to a project, or to carry out an agreement, the Minister may authorise the Commissioner to issue a section 18 notice requiring that remedial works be carried out, particular methods of land utilisation or management be adopted, and/or stock numbers limited (s 18(1), (2)).

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[11.490)

Landholders served with a section 18 notice can make objections to the Minister in the first instance (s 18(7)), and can then appeal the Minister's decision to the Land and Environment Court (s 18(9)). Those who fail to comply can be fined up to 500 penalty units (s 18(12)). The Minister may also authorise the Commissioner to carry out remedial works or measures required in the notice, and recover the costs from the landholder (s 18(13)).

[11.530]

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development for the purposes of construction works, routine maintenance works, emergency works and environmental management works to be included if they are in connection with soil conservation works (cll 108, 109).

Pest and weed management Section 2 2 notices [11.490) The Minister also has regulatory powers where an activity is likely to interfere with a proclaimed work, or cause soil erosion, siltation or degradation to land within a catchment area (s 22). "Proclaimed works" can include water storages, flood prevention works, and works for changing the course of a river or stream, deepening it or maintaining its banks (ss 19, 21).

Pest control [11.520) The Local Land Services is responsible for pest control (previously the responsibility of the Livestock Health and Pest Authorities under the Rural Lands Protection Act 1998). Part 10 of

the Local Land Services Act 2013 establishes the powers and responsibilities of the Minister and LLS to control pest animals on public and private land.

A section 22 notice can be issued requiring a landholder or the holder of timber rights on land to do or allow specified things to be done, or cease doing them (s 22(1)). Before issuing a section 22 notice, the Minister must be satisfied that the threat of soil erosion, siltation or land degradation can be mitigated or avoided (s 22(1)(6)). Those who fail to comply can be fined up to 500 penalty units (s 22(6)). Where a section 22 notice involves the expenditure of money, the Minister can choose to bear the whole cost of implementing the notice (s 22(3)).

[11.530) The Minister has the power to make pest control orders, to be published in the Gazette

Section 15A notices

• identify land to which an order applies • declare any non-human mammal or any bird, insect, amphibian, fish, reptile, arthropod,

Pest control orders (s 130). The orders can (s 130(2)):

(11.500) Section 18 and section 22 notices are restricted to circumstances where areas of erosion

hazard, proclaimed works or catchment areas are under threat. Directions can also be made by notice whenever the Commissioner considers that there is a threat of soil erosion or degradation to any land arising from activities on any land, or from a failure to act (s 15A(1)). The Commissioner must be satisfied that the erosion or degradation or its effects can be mitigated or avoided (s 15A(1)). It has been held that the principles of natural justice require the Commissioner to give anyone threatened with such a notice an opportunity to be heard before reaching this opinion (Simpson v Bradley [1991] NSWLEC 88). Besides the right to be heard by the Commissioner before a section 15A notice is issued, there is also a right to object to the Minister against the requirements of a section 15A notice (s 15B), and a right of appeal from the Minister's decision to the Land and Environment Court (s 15C). Failure to comply with a notice is an offence and is punishable with a maximum penalty of 500 penalty units (s 15E). The Commissioner can also arrange for the requirements of the notice to be carried out at the expense of the person served with it (s 15F). Moreover, if damage is caused to anybody else's land as a result of failure to comply with a section 15A notice, the holder of the damaged land can sue for damages (s 15G).

SEPP [Infrastructure) 2007 [11.510) The State Environmental Planning Policy (Infrastructure) 2007 permits public

authorities to carry out "soil conservation works" without development consent, on any land. Soil conservation works means development necessary to avoid, manage or mitigate the effects of salinity, acid sulfate soils, acid soils or sodic soils, or the effects of erosion. The SEPP also enables

•

mollusc, crustacean or other member of the animal kingdom, to be a pest on that land (although protected fauna and threatened species cannot be so declared (s 130(5)) impose or confer particular obligations or powers, including establishing general or limited destruction obligations, a notification obligation on occupiers of land, and conferring powers including on LLS to make individual or general eradication orders, amongst other powers.

A pest control order can be made on the Minister's initiative after consultation with LLS or at ' the request of LLS. The Minister must also consult with any other persons or organisations prescribed by the regulations before making a pest control order for any native species or a game animal (ss 131-132). Public notification is required for any proposal to make a pest control order (s 133) and the Minister is required to take into consideration any submissions received, before making the order. The Minister must also consult any public authorities that occupy land that a pest control order would apply to, prior to making the order (s 134). However, the Minister can waive these notification and publication requirements if the Minister certifies that in the special circumstances of the case, the public interest requires that the order be made without complying with these requirements (s 135). The LLS Act places obligations on owners and occupiers of private land to comply with general or limited destruction obligations imposed by a pest control order to eradicate the pest by any lawful method (or any method specified in the order). Maximum penalties are 50 penalty units (ss 142(1)-(2)). Occupiers must also comply with a notification obligation, by giving LLS notification of the presence of the pest on the land as soon as practicable after becoming aware of its presence (s 142(3)). Similar obligations apply to occupiers of public land, without any penalties applicable (s 143 ).

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Species that have been declared as pests in NSW include wild rabbits and dogs, feral pigs European red foxes, feral camels (in the Western Division) and various locust species.

Eradication orders

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experience in the regulation of chemicals under State law, one in the agricultural chemicals industry and one in the veterinary chemicals industry, one in protecting the interests of consumers, one in primary production, one in environmental toxicology and one in public health and occupational health and safety (s 17). One additional board member, from a relevant field, may be appointed if the Minister considers it necessary.

[11.540] The LLS Act also contains provisions that enables the LLS to give eradiation orders, served on owners or occupiers, in relation to a pest on controlled land, if considered necessary to do so (s 144). Orders may require short timeframe (not less than 24 hours) in circumstances where the LLS believes there is a serious risk of harm being caused by the pest (s 145). Reasons must be given for the order (s 146). LLS can also recommend that the Minister give an individual eradication order to a public authority (s 149). Penalties for failing to comply with an eradication order are a maximum of 50 penalty units (s 150).

• •

Pesticide regulation

• providing information to governments and authorities of the Commonwealth, the States

The notional registration scheme [11.550] As a result of a 1992 agreement between the Commonwealth, State and Territory

governments, the regulation of pesticides in NSW is now part of a uniform national scheme known as the national registration scheme. This scheme is coordinated under Commonwealth legislation, to which States and Territories may become parties. The national scheme for the manufacture, approval, registration, labelling, management and supply of pesticides is provided by the following Commonwealth legislation:

• the Agricultural and Veterinary Chemicals Act 1994 (Cth) (Agvet Act) • the Agricultural and Veterinary Chemicals (Administration) Act 1992 (Cth) (Agvet Administration Act) • the Agricultural and Veterinary Chemicals Code Act 1994 (Cth) (Agvet Code Act). The Schedule to this Act contains the Agricultural and Veterinary Code (the Agvet Code).

In May 2013, the national scheme was reformed with the signing of an updated Intergovernmental Agreement on Agricultural and Veterinary Chemicals.

Registration of agricultural and veterinary chemicals The Australian Pesticides and Veterinary Medicines Authority [11.560] The Commonwealth Agvet Administration Act provides for the establishment of the Australian Pesticides and Veterinary Medicines Authority (APVMA) (formally called the National Registration Authority for Agricultural and Veterinary Chemicals). The APVMA is an independent body that exercises its functions in accordance with the Agvet Act and the Agvet Code (Agvet Administration Act, ss 6 - 7). It implements its powers and functions on behalf of all participating jurisdictions. It is responsible, in particular, for the implementation of the Agvet Code on a national level.

The APVMA consists of a CEO and an Advisory Board of up to 9 members appointed by the federal Minister for Agriculture (Agvet Administration Act, Pt 3). Two board members must have

What the APVMA does [11.570] The APVMA's functions include:

• • • • •

approving active constituents, registering chemical products and approving container labels for chemical products (Agvet Code Act, ss 6, 10) assessing the suitability for sale in Australia of proposed or existing chemical products (including active constituents), and of labels for containers (Agvet Administration Act, s 7(1A)(a))

and participating Territories about proposed or existing chemical products (including active constituents), registered chemical products, reserved chemical products and approved labels, and co-operating with them in the management and control of chemical products (s 7(1A)(b)) keeping records of approvals and registrations granted, and permits and licences issued, under the Agvet Code (s 7(1A)(c)) evaluating the effects of the use of chemical products in the States and participating Territories (s 7(1A)(d)) developing codes of practice, standards and guidelines for, and recommending precautions to be taken in connection with, the manufacture, export, import, sale, handling, possession, storage, disposal and use of chemical products (s 7(1A)(f)) encouraging and facilitating the introduction of uniform national procedures for control of the use of chemical products (s 7(1A)(k)) issuing permits to individuals who wish to use an active constituent or chemical product in a manner prohibited by the Act (for example, to conduct trials of unapproved constituents to decide whether to make an application for registration) (Agvet Code, s 108, 110).

Control of persistent organic pollutants [11.580] In May 2004, Australia ratified the Stockholm Convention on Persistent Organic

Pollutants 2001. Persistent organic pollutants are hazardous and environmentally persistent substances that are toxic and that bioaccumulate in human and animal tissue. The Convention identifies such pollutants, and requires parties to take action to prohibit their production, use and trade as well as setting up measures for their safe disposal. Most of the persistent organic pollutants identified in the Convention are pesticides that have been used in the past for agricultural purposes. Australia has implemented its obligations under the Convention in the Commonwealth Agricultural and Veterinary Chemicals (Administration) Regulations 1995, which prohibits the importation, manufacture, use and supply in Australia of persistent organic pollutants controlled under the Convention (Sch 1).

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[11.640]

Regulation of pesticides in NSW [11.590] The Agvet Code has been adopted as NSW law through the enactment of the Agricultural and Veterinary Chemicals (New South Wales) Act 1994 (Agvet NSW Act). Under section 5 of the Agvet NSW Act, the Agvet Code applies as a law of NSW and is known as the Agvet Code of NSW. In discussing the NSW legislation, it is therefore necessary to refer to the Schedule of the Commonwealth Agvet Code Act, which contains the Agvet Code.

The legislative regime established by the Agvet Code and associated Acts and regulations is generally concerned with controlling the manufacture, supply and use of pesticides in NSW. Pesticide use and activities such as aerial spraying are further regulated by the Pesticides Act 1999 (NSW) and Pesticides Regulation 2009 (NSW) (see (11.710)-(11.880]). Under the Agvet Code, possession and supply of unapproved and unregistered chemicals and active ingredients without a permit is an offence, as is the manufacture of prohibited chemical products (Agvet Code, Pt 4, Div 2; s 121). The manufacture of other chemical products may be licensed, with the licensee being required to comply with manufacturing principles determined by the APVMA (Agvet Code, ss 120 -128). Part 7 of the Agvet Code establishes a permit system which requires permits to be obtained by those who wish to utilise a chemical product or active constituent that would otherwise be prohibited, for example to conduct an experiment or trial with that product to help them determine whether they want to apply for registration. The Governor-General has wide powers to make regulations under the Agvet Code Act (s 6), which apply as regulations in force for the purposes of the Agvet Code of NSW (Agvet NSW Act, s 6). The provisions of the Agvet Code bind the Crown (Agvet NSW Act, Pt 4). However, the Crown is immune from prosecution for offences against the Agvet NSW Act (s 13 ).

Registration of agricultural chemicals in NSW [11.600] The Agvet Code operates by requiring the approval of active constituents for proposed or existing chemical products (agricultural and veterinary), the registration of chemical products and the approval of labels for containers for chemical products.

chapter 11 Agriculture

(b)

destroying a plant, or

(c)

modifying the physiology of a plant or pest so as to alter its natural development productivity, quality or reproductive capacity, or '

(d)

modifying an effect of another agricultural chemical product, or

(e)

attracting a pest for the purpose of destroying it.

Applying for approval or registration [11.620] Part 2 of the Agvet Code deals with the approval and registration of chemical products.

A person may apply to the APVMA for:

• approval of an active constituent for a proposed or ex isting agricultural chemical product, or • registration of chemical products, or • approval of a label for containers for chemical products (s 10). Criteria for approval or registration [11.630] The APVMA must grant an application if specified preconditions are fulfilled (s 14(1)). These include a finding that the use of the constituent or chemical product:

•

meets certain safety, trade and efficacy criteria (s 14(1)) which include: would not be an undu~ hazard _t~ th~ safe~y of people exposed to it during its handling or people using anythmg contammg its residues (s SA - safety criteria)

• would not be likely to have an effect that is harmful to human beings (s SA - safety criteria) • would not be likely to have an unintended effect that is harmful to animals, plants or things or to the environment (s SA - safety criteria) • whether any trials or laboratory experiments have been carried out to determine the efficacy of the product and if so, the results of those trials or experiments (s SB - efficacy criteria) • would not unduly prejudice trade or commerce between Australia and places outside Australia (s SC - trade criteria).

Registration of a pesticide or approval of a pesticide label under the Agvet Code is taken to be registration or approval of the pesticide or label for the purposes of the Pesticides Act 1999 (Pesticides Act, s 4).

In satisfying itself of these preconditions, the APVMA must have regard to a range of factors (ss SA - SC), such as the toxicity of the constituent and its residues in relation to relevant organisms and ecosystems, including human beings (s 5A(3)(a)).

Any pesticides or labels that were registered prior to the enactment of the Agvet NSW Act are taken to have been registered by the APVMA (Agvet Code, s 174 ).

Under section 15, the APVMA must not approve an application to register a chemical product unless:

"Pesticides" and "agricultural chemical products"

• •

[11.610) "Pesticide" is defined in section 5 of the Pesticides Act 1999 to include an agricultural or veterinary chemical product within the meaning of the Agvet Code.

Approvals and registrations may be subject to conditions that the APVMA considers appropriate (s 23 ).

each active constituent of the product is approved, and the APVMA also approves an application for a label for containers of the product.

"Agricultural chemical product" is defined by the Agvet Code as: a substance or mixture of substances that is represented, imported, manufactured, supplied or used as a means of directly or indirectly: (a)

destroying, stupefying, repelling, inhibiting the feeding of, or preventing infestation by or attacks of, any pest in relation to a plant, a place or a thing, or

Records and registers [11.640] Under sections 17 and 18, the APVMA must keep:

• a record of approved active constituents for chemical products, and • a register of agricultural and veterinary chemical products.

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Suspension or cancellation of approval or registration [11.650] Division 5 of Part 2 of the Agvet Code provides for suspending and cancelling approvals or registrations. Under sections 36 - 38, suspension or cancellation can occur for:

• a breach of a condition of the approval or registration • failure to provide the APVMA with relevant information on application for reconsideration of an approval • failure to inform the APVMA of the results of trials or experiments • failure to give the APVMA a report or sample.

Approvals and registrations may also be suspended or cancelled if it appears to the APVMA that the continued use of the constituent or product does not meet the applicable safety, trade or efficacy criteria (s 41 ). Appeals on the merits (see [2.350]) against the decisions of the APVMA under the Agvet Code can be made to the Commonwealth Administrative Appeals Tribunal (s 167).

Public participation

(11.710]

chapter 11 Agriculture

end, the APVMA must publish a notice in the Gazette, "and in any other manner it thinks appropriate", inviting such proposals (s 30(1)). The notice must state the criteria that are to be taken into account by the APVMA in reconsidering the approval or registration (s 30(2)). When a person makes a proposal it must be supported by reasons relating to the criteria given in the notice (s 30(3)).

If the APVMA itself decides to reconsider an approval or registration, it must give written notice to the holder of the approval or registration (s 32(1)).The APVMA may also inform any person, if it thinks it desirable to do so, and in any manner that it thinks appropriate, that the APVMA proposes to reconsider the approval or registration. If it does so, it must invite any person to make a written submission to the APVMA about the matters it proposes to reconsider (s 32(2A)).

Enforcement [11.690] Anyone may seek an injunction in the Federal Court of Australia to enforce compliance with the Agvet Code (s 145F).

Notice of application

Case study: Liability of the APVMA

[11.660] Before determining an application for approval of a new active constituent, or registration of a chemical product containing a new active constituent, the APVMA must publish a notice in the Commonwealth Government Gazette, "and in any other manner it thinks appropriate" (Agvet Code, ss 12(1), 13(1)). The notice must set out:

[11.700] There is no right to bring legal proceedings against the APVMA for damage suffered as a result of handling an approved agricultural chemical product Agvet Administration Act, s 69H. There is a similar provision in the Agvet NSW Act to exempt the State government from liability (s 31).

• the name of the constituent, or chemical product • particulars of the constituent or the product • a summary of the APVMA's assessment of whether the product meets the relevant criteria.

The notice must invite written submissions from anyone within 28 days, stating whether the application should be approved, and the grounds on which the submission is based (ss 12(3)(6), 13(3)(6)). These must relate to the criteria the APVMA is required to consider when making a decision.

Notice of approval or registration [11.670] If the APVMA approves an active constituent or registers a chemical product it must

(unless it thinks that in the circumstances it is unnecessary to do so) publish a notice in the Gazette and "in any other manner it thinks appropriate" (s 8H). The notice must give the date of approval or registration and a brief statement of the conditions that directly regulate the use of the constituent or product (s 8H(2)). Similar provisions apply where:

• the APVMA varies an approval or registration (s 8J) • the registration of a chemical product expires and is not renewed (s 47C) • an approval or registration is suspended or cancelled (s 45A). Reconsideration of approvals or registrations

[11.680] The APVMA can also invite the public to propose that existmg approvals or

registrations for active constituents, chemical products or labels be reconsidered (s 30(1)). To this

The liability of the APVMA for damage caused as a result of the approval of an agricultural chemical product was tested in Brian McMullin v ICI Australia Operations Ltd, National Registration Authority (unreported, Federal Court of Australia, 10 November 1995, Wilcox]). The action arose out of losses allegedly suffered by the applicants due to the accumulation of chlorfluazuron in the tissues of cattle. The contamination was said to have occurred when the cattle were fed cotton waste that had been sprayed with an insecticide marketed under the name "Helix". Justice Wilcox, referring to the statutory immunities mentioned above, held that the applicants were prevented from establishing liability against the authority. His decision was upheld by the Full Federal Court on appeal in New South Wales v McMullin (1997) 73 FCR 246.

The use of pesticides in NSW The Pesticides Act [11.710] As mentioned above, while the Agvet NSW Act, which adopts the Agvet Code, generally regulates the manufacture, supply and use of pesticides, their use and storage is further regulated by the Pesticides Act 1999 (NSW). The general position under the Pesticides Act 1999 is that registered pesticides may not be used without a permit, unregistered pesticides may only be used with a permit, and restricted pesticides require a certificate of competency.

525

(11.720]

'andbook

524

The Environme

Suspe~: [11.65~ app,s-- ';,

•

t ?:

'o

· deal of concern regarding the use and impacts of pesticides in NSW on wironmental grounds. For this reason, a number of significant changes ides Act 1999 was enacted in 1999, repealing the former Pesticides Act

[11.760]

• •

chapter 11 Agriculture

they complied with the relevant instructions on an approved label for the pesticide, or they used the pesticide at a lower concentration than that specified on the approved label and otherwise complied with the relevant instructions on the approved label.

tJ>

(I)

sistency with the national registration scheme to: xactice approaches to pesticide management are promoted ~

enforcement and licensing system, and

6 Loups to contribute to the ongoing development of approaches to ---------------- ,-rnlnagement through a formal advisory committee, the Pesticides Implementation ---committee.

However, recent changes to the Pesticides Act 1999 made by the Pesticides Amendment Act 2015 abolished the Pesticides Implementation Committee. They also made a range of amendments that:

Use causing or likely to cause injury, damage or harm [11.750) A person may diligently follow directions regarding the use of a pesticide but fail to take account of other considerations, thereby causing harm to people or property. It is therefore an offence for a person to use a pesticide in a way that:

• •

causes or is likely to cause injury to persons or damage to property (s 10(1)), or causes harm to any non-target animal or plant (s 11(1)).

The Pesticides Amendment Act 2015 has included clarification that damage to property includes when the use of a pesticide prevents or reduces the capacity (or is likely to) of the premises from being used for agricultural operations (whether temporarily or permanently: news 10(1A), uncommenced at time of writing).

• transfer licensing for the application of pesticides and use of fumigants to the Pesticides Act (from occupational health and safety regulations) • further harmonise the Pesticides Act 1999 with the Commonwealth Agvet Code (following recent amendments to the Agvet Code) • strengthen the administration and enforcement provisions of the Act.

•

At the time of writing, the amendments made by the Pesticides Amendment Act 2015 had not all commenced. The amendments are proposed to come into effect in 2015.

• they are the occupier of the land (ss 10(2), 11(2)).

Offences under the Act

It is also a defence if the person can demonstrate that they had no control over the commission of the offence and they took all reasonable precautions and exercised "all due diligence" to prevent it (ss 10(3), 11(3), 11A(2)). The maximum penalty for these offences is $120,000 for a corporation and $60,000 for an individual.

[11.720) The Pesticides Act 1999 contains a number of offences relating to the possession and use of pesticides. The Environment Protection Authority (EPA) is the regulatory body responsible for enforcing its provisions (Pesticides Act, ss 73, 108).

Possession and use of unregistered pesticide [11. 730] It is an offence to possess or use an unregistered pesticide, unless authorised to do so by a permit issued under Part 7 of the Agvet Code and the possession and use of the pesticide is in compliance with that permit (ss 12, 13 ). The offence is punishable by a fine of up to $60,000 for individuals, and $120,000 for corporations. The Pesticides Amendment Act 2015 inserted a new provision providing a defence if the person possesses or uses an unregistered pesticide that is a reserved chemical product (which as per the Agvet Code, is not required to be registered by its possession or custody, or use is subject to specified conditions), and the pesticide is possessed/ used in accordance with the conditions specified for that product (ss 12(2), 13(2)).

Use contrary to approved label [11.740) It is an offence of strict liability (see (2.620)) to use a pesticide registered under the Agvet Code in contravention of any instruction on an approved label for that pesticide, unless the person is authorised by a permit (Agvet Code, Pt 7), and complies with that permit. The maximum penalty is $120,000 for a corporation and $60,000 for an individual (s 15(1)).

It is a defence if a person can show (s 15(3)) that:

Conviction will follow even where there was no intention to cause the harm, or negligence, unless the person can establish that: the injury or damage was limited to agricultural farm land (or residential premises, for s 11), and

A news 11A has also been inserted by the Pesticides Amendment Act 2015 to provide a new offence for using pesticide in a manner that harms a companion animal that is in or on premises with the consent of the owner or occupier (uncommenced at time of writing). Wilful or negligent misuse [11.760) It is a more serious offence to wilfully or negligently misuse pesticides, in a manner that:

• •

injures or has the potential to injure any person, or damages any property (s 7), or harms non-target plants or animals (s 8).

The maximum penalties for offences under sections 7 and 8 are $250,000 for corporations and $120,000 for individuals. Where there is actual injury or damage to a person or property from pesticide use under s 7, an "on-farm" exception applies if the accused can establish that the harm occurred only on the agricultural farm land and they are the occupier of the land (s 7(2)). A similar exception applies for harm to plants and animals under s 8, where harm occurs on the agricultural farm land or the residential premises occupied by that person (s 8(2)).

527

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ntal Law Handbook

[11.770)

~s Amendment Act 2015 has included clarification that damage to property -e use of a pesticide prevents or reduces the capacity (or is likely to) of the -g used for agricultural operations (whether temporarily or permanently) (new ,.,----, ,.----:::ed at time of writing).

"y n at ices

~

~ 7 7 0 ] As an alternative to prosecution, penalty notices can be issued for minor offences ~ ;gainst the Pesticides Act 1999 (s 75). The EPA can also issue prevention notices and clean up notices under the Act (generally called "pesticide control notices") to individuals, occupiers of premises and public authorities to prevent or prohibit activity that is likely to harm people, property or the environment (Pt 3, Divs 1, 2, 3 ).

Occupational health and safety [11.780] The Occupational Health and Safety Regulation 2001 (NSW) previously regulated how employers must act regarding hiring employees to apply pesticides and fumigants. The Pesticides Amendment Act 2015 has transferred requirements relating to licensing the application of pesticides and use of fumigants into the Pesticides Act 1999. The amending Act establishes an offence for a person to carry out 'prescribed pesticide work' (new s SA) without a licence (new s 45). It establishes procedures for the granting of such licences, including conditions, duration, and suspension and revocation (new ss 45 - 52). It also requires the Environment Protection Authority to keep a Register of Licences, and provides that it may make information in it available to the public (news 53).

The Pesticides Act 1999 also provides that anyone using registered pesticides is required to read the instructions on the approved label, or ensure that an approved label is explained to the person using the pesticide (s 14(1)). The maximum penalty for failing to do this is $120,000 for a corporation and $60,000 for an individual.

[11.830)

(b)

chapter 11 Agriculture

any protected fauna within the meaning of the National Parks and Wildlife Act 1974 (see [12.710]).

Factors relevant to deciding whether the harm is "material" include the number and species of the animals harmed, and their local populations (s 9(2)).

Problems with enforcement [11.810] A significant problem with pesticides legislation is that it is very difficult to monitor and enforce these provisions. In practice, pesticides are regularly used in circumstances not envisaged by manufacturers.

The recent amendments to the Pesticides Act 1999 also introduced some changes to improve enforcement provisions. The changes include giving the EPA powers to enforce written undertakings.

Restricted pesticides [11.820] The Pesticides Act 1999 provides for a special category of restricted pesticides (s 17) that can only be used by those holding a certificate of competency (to be renamed "restricted pesticide authorisations" pursuant to the Pesticides Amendment Act 2015) issued by the EPA or authorised by a pesticide control order (Pesticide Act 1999, ss 17, 56 - 62).

The EPA may make pesticide control orders, with the approval of the Minister (which may now be delegated to the Chairperson of the Environment Protection Authority, pursuant to the Pesticides Amendment Act 2015) in order to (s 38):

• •

protect public health, property, the environment or trade, or give effect to a policy or decision of the APVMA. Pesticide control orders must be published in the Gazette (s 38(3)).

Notification of pesticide use [11.790] There is no general obligation to notify neighbours or other people of the proposed use of pesticides. However, notification is required for pesticide use in multiple occupancy residential complexes, both prior to the proposed use, and during the use of the pesticide (Pesticides Regulation 2009, ell 25, 26). In addition, pesticide management technicians must provide prior notification of proposed use of pesticides in areas close to "sensitive places" such as schools, childcare centres and nursing homes (cl 27).

• •

A pesticide control order may: prohibit or control the use of a pesticide, or authorise the use or possession of a restricted pesticide or class of restricted pesticide (s 39).

There are currently 12 pesticide control orders in force, including a requirement that 1080 baits targeting rabbits, feral pigs, feral dogs and foxes can be used only by specially trained authorised officers ("Pesticide Control (1080 Liquid Concentrate and Bait Products) Order 2010").

Public authorities (such as councils) must not use or allow the use of pesticides in a public place that is under their ownership or control, unless a "pesticide use notification plan" has been prepared, and the public has been notified in accordance with that plan (Pesticides Regulation, cl 19).

Aerial spraying

Harm to threatened species

[11.830] Currently, the Pesticides Act 1999 establishes a specific licensing regime for aerial spraying, detailed below.

[11.800] Under section 9(1) of the Pesticides Act 1999, it is an offence to wilfully or negligently use a pesticide "in a manner that materially harms":

(a)

an animal that is a threatened species within the meaning of the Threatened Species Conservation Act 1995 (see [12.380]), or

However, recent amendments (not yet commenced) establish a new licensing regime for "prescribed pesticide work". This licensing regime will cover work including the supply or use of pesticides, piloting or use of aircraft in connection with the supply or use of pesticides, the carrying on of a business involving these activities, or the carrying out by a public authority of

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The Environmental Law Handbook

[11.840]

these activities (news SA). The new provisions enable the EPA to determine if a person is a 'fit and proper person' to hold a licence, including matters the EPA may take into account, such as record of compliance with relevant legislation and whether the person is of good repute, having regard to character, honesty and integrity (news SB).

The new provisions then contain requirements to hold a licence to carry out prescribed pesticide work. Penalties are the same as existing penalties ($120,000 for corporations and $60,000 for individuals). The new provisions also set out relevant procedural steps, similar to existing provisions, including application, grant, condition, duration and renewal, and suspension or revocation (news 45 - 52). The EPA is also required to keep a Register of Licences (news 53). Under the existing scheme, before a person can operate an aircraft for applying pesticide, they must hold a pilot (pesticide rating) licence (Pesticides Act 1999, s 45(1)). Either that person or their employer must also hold an aircraft (pesticide applicator) licence (s 45(2)). The maximum penalty is $60,000 for an individual and $120,000 for a corporation. The EPA is the licensing body for aerial pesticide operations. Only someone with the necessary qualifications, as prescribed by regulations, can obtain a licence (Pesticides Act 1999, s 48; Pesticides Regulation 2009, cl 6). Details of licences granted must be published in the Gazette (s 48(4)).

• •

chapter 11 Agriculture

Declared chemical wastes [11.850] The Environmentally Hazardous Chemicals Act 1985 enables the EPA to declare a chemical substance that has been stored, dumped or abandoned to be a chemical waste for the purposes of the Act (s 10). If, after assessment, a chemical waste is found to be environmentally hazardous, the EPA can impose a chemical control order in relation to the management of the substance by publishing the order in the Gazette (ss 10, 11, 20 - 24 ). Failure to comply with the control order or associated licence conditions is an offence under the Act (s 26). The maximum penalties are 1,250 penalty units for a corporation and 600 penalty units for an individual (s 54).

Pesticide wastes (including used pesticide containers) are declared chemical wastes.

Scheduled Chemical Wastes Chemical Control Order 2004 [11.860] In June 2004, a chemical control order was made in relation to:

• •

the manufacture, storage, supply and use of a number of organochlorine pesticides no longer registered for use in NSW (including DDT, dieldrin and heptachlor), and some waste by-products of industrial practices no longer followed in NSW.

These chemicals were identified as of concern because of their persistence, tendency to bioaccumulate and to expose living things to toxicity.

Once a licence is granted it remains valid until it is (s 51): suspended or revoked by the EPA, or surrendered to the EPA by the holder.

An aerial spraying licence can be suspended by the EPA for a period of up to six months. The EPA can revoke a licence for a number of reasons, including that the holder (s 55(2)):

• •

[11.870]

has contravened a provision of the Act or regulations, or

The control order gives effect to the recommendations of the national Organochlorine Pesticides Waste Management Plan, which was prepared in 1997 as part of the National Strategy for the Management of Scheduled Wastes. The order provides for the safe management and disposal of specified pesticide wastes.

Pesticide residues

is found to have given false or misleading information in applying for the licence. Details of licence cancellations must be published in the Gazette (s 55(3)).

Records must be kept by those holding aircraft (pesticide applicator) licences covering each aerial spraying operation (Pesticides Act 1999, s 54; Pesticides Regulation 2009, cl 7). There is a pesticide control order in effect providing that a person may not carry out aerial pesticide spraying within 150m of dwellings, schools, factories or public places unless the owner or occupier consents in writing ("Order Air-1").

Pesticide wastes [11.840] The Pesticides Act 1999 has nothing directly to say about the disposal of pesticide wastes, although labels may contain instructions on disposal, which must be complied with in accordance with section 15. However, initiatives in this area have been taken under the provisions of the Environmentally Hazardous Chemicals Act 1985 (NSW) and Environmentally Hazardous Chemicals Regulation 2008, which are administered by the Environment Protection Authority in the Office of Environment and Heritage (see Chapter 9 for a detailed discussion).

Pesticide residues in food [11.870] Part 7 of the Pesticides Act 1999 deals with pesticide residues in food. The Pesticides Regulation 2009 adopts provisions of the Australia New Zealand Food Standards Code and the Australian Pesticide and Veterinary Medicines Authority standard, "MRL Standard - Maximum residue limits in food and animal feedstuff", which lists the maximum permissible levels (cl 31).

Where the EPA reasonably believes that there is a breach of either standard, a "prohibited residue notice" can be served on the owner of the produce, or the occupier of the premises on which the produce is situated, specifying how it should be dealt with in the interests of public health (Pesticides Act 1999, s 64). The Minister may then make an order that can, among other things, require the food to be destroyed in certain circumstances (s 65). If a person fails to comply with an order to destroy any agricultural produce, the EPA may authorise an authorised officer to destroy the produce (s 66). There is a right of appeal to the Land and Environment Court against a prohibited residue notice and prohibited residue order (s 114(1)(c) and (d)). Changes introduced by the Pesticides Amendment Act 2015 (not commenced at the time of writing) enable prohibited residue notices or orders to be extended to persons involved in

531

532

The Environmental Law Handbook

(11.880)

growing or supplying produce to which the notice or order relates, to enable notices or orders to require a person to report on and monitor prohibited residue in produce, and to enable regulations to be made for or with respect to the analysis, reporting, and monitoring of pesticide residues by growers and suppliers of produce (to be integrated in ss 64 - 65).

(11.940)

The NSW Noxious Weeds Act [11.910] The legislation regulating weed management in NSW is the Noxious Weeds Act 1993. The objectives of the Act (s 3) include:

• •

Residues in stock [11.880] The Stock (Chemical Residues) Act 1975 (NSW) and Stock (Chemical Residues) Regulation 2010 deal with the problem of pesticide, drug and other chemical residues in the body tissue of stock. Under section 4 of the Act, the Minister for Primary Industries may declare stock to be chemically affected if the Minister is satisfied that the stock are or are likely to become unfit for sale or export for human consumption or pose a danger to humans, animals, the environment, or are detrimental to export or other trade. The Minister or a specified officer can issue a detention notice, preventing the movement of affected stock indefinitely, while inspectors may order a temporary detention (ss 7, 8). Inspectors may accept undertakings in respect of chemically affected stock, from a person who owns or is in charge of stock which are chemically affected or which the inspector suspects are chemically affected (s 7A).

Restrictions on the use of land for grazing can be imposed by notice in the Gazette if the Minister believes that stock on the land will become chemically affected (s 12). A maximum penalty of 100 penalty units may be imposed for supplying false information to the Minister in relation to the presence of chemical residue in stock (s 12D).

Noxious weeds [11.890] Invasive plant species - weeds - are a very serious environmental problem in Australia, and they have a significant impact on agricultural productivity.

The Australian Weeds Strategy [11.900] The National Weeds Strategy: A Strategic Approach to Weed Problems of National Significance was developed pursuant to an agreement between the Commonwealth, State and Territory governments reached in June 1997. The strategy was revised in 2006, and was renamed the Australian Weeds Strategy.

The strategy requires co-operation and consistency between federal, State and Territory laws, and establishes three overarching goals for weed management:

• preventing the development of new weed problems; • reducing the impact of existing weed problems of national significance; and • providing the framework and capacity for ongoing management of weed problems of national significance.

An independent evaluation of the 2007 Australian Weeds Strategy was undertaken in 2013. The Australian Weeds Committee is understood to be revising and updating the strategy, for release in 2015.

chapter 11 Agriculture

reducing the negative impact of weeds on the economy, community and environment, and providing for the monitoring of and reporting on the effectiveness of the management of weeds.

What is a noxious weed? [11.920] The Minister for Primary Industries may declare any plant to be a noxious weed by means of a "weed control order" published in the Government Gazette (s 7(1)). The declaration may apply to the whole or part of the State. The Minister must undertake public consultation before making a weed control order. The proposal must be placed on public exhibition for at least 21 days, and the Minister is required to consider any public submissions (s 9).

Weed categories [11.930] Weeds are categorised into 5 classes under the Noxious Weeds Act 1993 for purposes of weed control orders (s 8). The classes are categorised according to characteristics such as the seriousness of the threat to primary production, human health or the environment, and the extent of their presence in an area or the State.

• • • •

•

The classes of weeds are: Class 1 (State prohibited weeds): plants that pose a potentially serious threat to primary production or the environment and are not present in the State or are present only to a limited extent Class 2 (regionally prohibited weeds): plants that pose a potentially serious threat to primary production or the environment of a region to which the order applies and are not present in the region or are present only to a limited extent Class 3 (regionally controlled weeds): plants that pose a serious threat to primary production or the environment of an area to which the order applies, are not widely distributed in the area and are likely to spread in the area or to another area Class 4 (locally controlled weeds): plants that pose a threat to primary production, the environment or human health, are widely distributed in an area to which the order applies and are likely to spread in the area or to another area Class 5 (restricted plants): plants that are likely, by their sale or the sale of their seeds or movement within the State or an area of the State, to spread in the State or outside the State. "Notifiable weeds" are those classified as a Class 1, 2 or 5 noxious weed.

Responsibility for control of noxious weeds [11.940] The Minister has overarching responsibility for controlling noxious weeds in NSW (s 33 ). However, occupiers of private land are responsible for carrying out weed control on their land in accordance with any applicable weed control order (s 12). Public authorities have a duty to prevent weeds on land under their control, to the extent necessary to stop them spreading to adjoining land (s 13). Local control authorities (which include local councils and the Western Lands Commissioner: s 35) must control weeds on land that they occupy, as well as controlling

533

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The Environmental Law Handbook

[ll.950)

[1 l.990)

noxious weeds on roads jointly with occupiers of land on the boundary of the road (ss 14, 17). Local control authorities also have general obligations to ensure land occupiers control noxious weeds on their properties (s 36).

the decision (see [2.360] ). He argued that the section 18 notices were invalid as they did not specify the manner in which he was required to comply with the notice, and therefore the section 20 notices and the claim under section 26 were also invalid. He also argued that the Council should have tendered for the contractor under the Local Government Act 1993. The Court of Appeal dismissed the appeal, finding that the notices were issued validly and, upon construction of the relevant legislation, a tender process was not required.

Land occupiers also have an obligation to notify their local control authority if they become aware of the presence of a "notifiable weed" on their land, within 3 days (s 15).

Aquatic weeds [11.950] Where aquatic weeds are present on land a local control authority may, on application of the owner, drain a swamp on the land to control the weeds (s 38(2)). Any objections to the action must be considered, and the environmental impact assessment provisions of Part 5 of the Environmental Planning and Assessment Act 1979 will be triggered (see Chapter 6).

Weed control notices [11.960] A weed control notice may be given to an occupier of land by the local control authority or to a public authority or local control authority by the Minister (ss 18, 22). Prior notice must be given by the local control authority to the occupier of a proposed weed control notice, and it must consider any submissions made by the occupier (s 18A).

The notice may require the occupier to carry out works to control noxious weeds on the land as required under a weed control order, and can specify the time within which the action must be taken (not less than 14 days) (s 18(2)). A maximum penalty of 100 penalty units may be imposed if a weed control notice is not complied with (s 19). Where an occupier fails to comply, the local control authority or the Minister can undertake control measures and claim the costs from the occupier (ss 20, 23, 26). Before controlling noxious weeds on land occupied by a public authority, the Minister must obtain the approval of the premier (s 23(3)).

Case Study: Tonkin v Cooma-Monaro SC [2006] 145 LGERA48 [11.970] Mr Tonkin was the owner of land in the Cooma-Monaro Shire Council area. After an inspection of his land by Council officers, the Council served Mr Tonkin with two weed control notices under section 18 of the Noxious Weeds Act 1993, after they determined that he had failed to carry out his obligations to control two noxious weeds on his property. Upon his failure to take steps to control the weeds, the Council issued notices under section 20 of the Act, permitting authorised officers to enter the land to control the weeds. After discussions, Mr Tonkin agreed to perform the works himself. However, upon later inspection by the Council officers, they found that he had not done so adequately. After issuing two further section 20 notices, the Council engaged contractors who performed the weed control works at a cost of over $100,000.

The Council commenced proceedings to claim from Mr Tonkin the expenses it incurred in having a contractor perform the works. The trial judge found that the Council had incurred reasonable expenses to control the weeds, and were payable by Mr Tonkins pursuant to section 26 of the Act. Mr Tonkin sought judicial review of

chapter 11 Agriculture

Rights of appeal [11.980] An owner or occupier of land has a right of merit appeal against a weed control notice issued by a local control authority to the Land and Environment Court, which may amend, revoke or confirm the notice (s 25). Non-occupiers who have objections on the basis of the notice's impact on the environment have no right of merit appeal. Even the right they would otherwise have under section 253 of the Protection of the Environment Operations Act 1997 (NSW) to bring proceedings to restrain a breach or apprehended breach of the Noxious Weeds Act 1993 likely to cause harm to the environment has been removed by provisions aimed at protecting decision-makers and those administering the Act from liability (Noxious Weeds Act 1993, s 70(2), (3)).

Offences under the Act [11.990] There are offences for failing to carry out the actions specified in the Noxious Weeds Act 1993 for notifiable weeds. Failure of an occupier of land to notify the local control authority of the presence of notifiable weeds on land within 24 hours of becoming aware that the notifiable weed is on the land carries a maximum penalty of 20 penalty units (s 15).

• • • •

Other offences (ss 28 - 32) include: selling or purchasing notifiable weed material or any other noxious weed material prescribed by the Noxious Weeds Regulation 2008, or any animal or thing that has on it or contains notifiable weed material or other noxious weed material selling soil, turf or fodder from land with notifiable weeds scattering notifiable weed material, and transporting an agricultural machine with a notifiable weed on it. The maximum penalties for these offences range from 20 to 50 penalty units.

The NSW Government has proposed significant reforms to laws related to biosecurity in NSW, set out in a proposed framework for a new Biosecurity Act in 2014. The proposed framework would repeal multiple Acts including the Noxious Weeds Act 1993 and the provisions of the Local Land Services Act 2013 relating to pest control, and establish in its place a broad "enabling framework" for the efficient management of animal and plant pests, diseases and weeds. The approach proposed focuses on a more modern approach to biosecurity that emphasises risk-based decision making and shared responsibility for biosecurity. At the time of writing, it was not clear whether this proposed reform will proceed.

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[11.1000]

Biological control [11.1000] The Biological Control Act 1985 (NSW) provides for the environmental assessment

of proposed biological control programs (the control of organisms by the release of live organisms of another kind (s 4)) in the interests of both the economy and environmental protection. The Biological Control Act 1985 is part of a package of complementary State and Territory legislation designed to offer a uniform approach to the use of biological controls by ensuring that decisions made in the States and Territories are subject to the supervision at a national level of the Agricultural and Resource Management Council of Australia and New Zealand (s 3) (previously the Natural Resource Management Ministerial Council). Although the legislation makes it clear that it is not confined to the biological control of plants, insects and animals harmful to agricultural activities (Biological Control Act 1985, s 7), the legislation has its major impact in this area. The Biological Control Act 1985 binds the Crown (s 6).

Biological control and the law of nuisance [11.101 OJ There is nothing in the Biological Control Act 1985 requiring compliance with its assessment procedures before an organism is released for biological control purposes. If those responsible for a biological control program comply with the requirements of any other applicable legislation, such as the Commonwealth Quarantine Act 1908, there is no power in the Biological Control Act 1985 to restrict the release of any organisms (ss 33, 50). In these circumstances, however, an action could be brought under the common law of nuisance (see [2.160]) for an injunction to prevent the program from going ahead, or for compensation for any damage caused by it. This is where the Biological Control Act 1985 comes in, since it offers a degree of protection against proceedings of this kind where an organism is released in accordance with its provisions. The approach taken, therefore, is to use incentives to achieve the Act's objectives.

If an organism is to be released for biological control purposes in accordance with the provisions of the Biological Control Act 1985, legal proceedings to prevent release are completely prohibited (s 34(1), (2)). Restrictions are also placed on civil actions brought to recover compensation for loss or damage caused in any part of Australia by the release of an organism under the Act in NSW (s 34). Such actions can only be brought where there have been significant side effects on organisms (other than human beings (s 3)) that were not taken into account during the assessment process but that ought to have been anticipated by experts (s 34(1), (3)). Where an organism is released under equivalent Commonwealth or State legislation that has been declared to be "a relevant law" in NSW (s 5), the Act gives similar protection against civil proceedings in NSW courts. In this situation, proceedings designed to prevent the release of organisms are completely outlawed (s 35(2)(a)), as are all proceedings designed to recover compensation, wherever in Australia the loss or damage has been caused, subject to the exceptional circumstances noted above (s 35(1), (2)(6), (4)).

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other to a decision on whether an organism should be declared an agent organism. Agent organisms are intended to control target organisms. Briefly, the NSW Biological Control Authority (in this case the NSW Minister administering the Act, currently the Minister for Primary Industries) ("Authority") and the Agricultural and Resource Management Council of Australia and New Zealand ("Council") are responsible for implementing the assessment procedures (s 8). The process leading to the declaration of a particular kind of organism as a target or agent organism is begun by a unanimous recommendation by the Council to the Authority, or an application (by anybody at all) to the Authority (ss 10(2), 11, 19(2), 20).

If the Council unanimously recommends to the Authority that a particular kind of organism should be declared a target or agent organism, the Authority must publicise the matter and invite public comment (ss 15, 24). The Authority must consider any submissions made (ss 16, 25), along with other available information, then decide whether or not an inquiry should be held. It can only arrange for an inquiry on the unanimous recommendation of the Council (ss 17, 26). Anybody whose interests are affected can appeal to the Land and Environment Court against a decision not to hold an inquiry (s 54(1)(a), (d)). The final step is for the Authority to decide whether or not to declare the particular organisms target or agent organisms (ss 18, 27). Once again, it can only make a decision in favour of such a declaration on the unanimous recommendation of the Council. Conditions relating to release of the agent organisms can be set out in a declaration (s 27(3)). Anybody whose interests are affected by the Authority's decision can appeal to the Land and Environment Court if that decision is at odds with the recommendation of an inquiry set up under the Act (s 54(1)(6), (e)).

Criteria for declaring target organisms [11.1030] Before declaring organisms to be target organisms, the Authority must be satisfied that (s 18(1)(d), (e)(i)):

• •

they are causing harm in NSW, and they can probably be controlled by biological means, and either (s 18(1)(f)):

• control would not cause any significant harm to a person or the environment, or •

any harm caused would be significantly less than the ha.rm resulting from failure to control the organisms.

The proposed target organisms may have economic significance - for example, introduced plant species that play a valuable role in the making of honey- and this must be balanced against the harm caused by the organism.

Criteria for declaring agent organisms [11.1040] When it comes to proposed agent organisms, the Authority can make a declaration if

satisfied (s 27(1)(d), (e)(i)) that:

The assessment process [11.1020] Two separate assessment procedures are set up under the Biological Control Act

1985: one leading to a decision on whether an organism should be declared a target organism, the

• •

release of the organisms could result in the control of target organisms of a particular kind, and release would not cause any significant harm to anybody or to the environment.

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Where release would cause significant harm, the Authority must be satisfied that it would be (s 27(1)(e )( ii}}: significantly less than the harm resulting from a failure to control the particular target organisms, and

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Revocation of declarations (11.1080] Declarations of target and agent organisms can be revoked at any time by the Authority on the unanimous recommendation of the Council (s 51). Anybody whose interests may be affected by the revocation can appeal to the Land and Environment Court (s 54(1)(i) ).

significantly less than that resulting from any alternative methods of control.

Validation of earlier programs (11.1050] Where biological control programs have been implemented in the past, they can be validated under the Act by the declaration of target and agent organisms on the unanimous recommendation of the Council (s 29) . In these circumstances, inviting public comment and holding a public inquiry are discretionary (ss 29 - 31), but anyone whose interests may be affected can appeal to the Land and Environment Court against a decision not to hold an inquiry (s 54(1)(h)). They can also appeal to the court against a final decision by the Authority that is inconsistent with the recommendations of any inquiry held (s 54(1)(g)) .

The advantage of having an earlier program validated under the Act lies in the restrictions it imposes on civil proceedings against those responsible for the program (see [11.1000]-[1l.101 OJ).

Reciprocal arrangements (11.1060] If an agent organism has been released under equivalent Commonwealth or State legislation that has been declared a "relevant law" in NSW (s 5), and the relevant target organisms have been declared under the NSW legislation, the Authority must declare the organism to be an agent organism. The Authority has a discretion whether to declare as target organisms those that have been recognised as such in other parts of Australia (s 32). However, even without such formal declarations, a considerable degree of protection against civil proceedings is granted to those who participate in biological control programs under "relevant laws" (s 35; see [ll.1000]-[11.1010]).

Emergencies (11.1070] In emergency situations, the Authority, on the unanimous recommendation of the Council, can declare organisms to be target and agent organisms without the detailed prior assessment ordinarily required. A situation is considered an emergency if the Authority is satisfied that (s 28(1)):

• • •

[11.1090)

the organisms are having a serious effect on the health of humans, animals or plants in NSW, or the organisms are causing or likely to cause significant damage to the NSW economy, or the organisms are causing or likely to cause significant damage to the NSW environment.

Genetically modified organisms (11.1090] With the rise of gene technology, governments have recognised that genetically modified organisms (GM Os) may pose risks to both human health and the environment, and that those risks must be assessed and managed appropriately. Some of the risks identified are:

• the introduction of unidentified allergens into food containing GM Os • contamination of traditional or organic crops by genetically modified crops • the inability to eliminate a GMO once it has been released and found to have an adverse impact on the environment • damage to the environment due to increased use of chemicals associated with genetically modified crops • the creation of weed plants or pest animals through the introduction of GMOs into the environment • the creation of insect-resistant crops affecting non-target insects, and • the transfer of genes for herbicide tolerance from genetically modified crops to related species, resulting in herbicide resistant weeds.

The Commonwealth Gene Technology Act 2000 and Gene Technology Regulations 2001 came into force in June 2001. The Act and Regulations seek to introduce a national scheme for the regulation of GMOs by the Commonwealth and the States and Territories (Gene Technology Act 2000, s 5; Pt 2, Div 4). As part of this national approach to gene technology management, the NSW government has enacted the Gene Technology (NSW) Act 2003, which applies the Commonwealth Act as a law of NSW (Gene Technology (NSW) Act 2003, s 3). The object of the Gene Technology Act is to protect public health and safety and to protect the environment, by identifying the risks associated with gene technology and managing those risks by regulating dealings with GMOs (s 3). Although the Act binds the Crown, the Crown cannot be prosecuted for offences under the legislation (s 6).

• • •

A GMO is defined in the Gene Technology Act 2000 as (s 10): an organism that has been modified by gene technology, or an organism that has inherited particular traits from a genetically modified organism, or anything declared by the Regulations to be a genetically modified organism.

It does not include:

Before making an emergency declaration, the Authority must be satisfied that the proposed agent organisms would control the proposed target organisms without having any significant adverse effects.

• •

Anybody whose interests are affected by the emergency declaration can appeal to the Land and Environment Court (s 54(1)(f)).

The Gene Technology Act 2000 prohibits all "dealings" with GMOs without pnor authorisation (Pt 4, Div 2). "Dealing with" GMOs means (s 10):

a human being who has undergone somatic cell gene therapy, or an organism declared by the Regulations not to be a genetically modified organism.

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(11.1100]

conducting experiments with them making, developing, producing or manufacturing them

• breeding them • propagating them • using them to manufacture other products • growing, raising or culturing them • importing them, and • possessing, supplying, using, transporting or disposing of them. The offence provisions in relation to unauthorised dealings are discussed below.

The Gene Technology Regulator [11.1100] The national body responsible for the regulation of dealings with GM Os is the Office of the Gene Technology Regulator (OGTR), which is established under the Gene Technology Act 2000 (Pt 3). The OGTR is an independent body, and it has discretion in the performance and exercise of its functions and powers. In particular, the Regulator is not subject to direction in relation to decisions to grant or refuse a licence, or the conditions imposed on a licence (s 30).

Its functions include (s 27):

• performing licensing functions under the Act in respect of authorised dealings with GMOs • developing draft policy principles and guidelines and codes of practice relevant to gene technology • giving information and advice to other regulatory agencies about GMOs and genetically modified products • giving information and advice to the public about the regulation of GMOs • undertaking or commissioning research in relation to risk assessment and the biosafety of GMOs • monitoring international best practice in relation to the regulation of GMOs, and • maintaining links with international organisations that regulate GM Os outside Australia. The Gene Technology Act 2000 establishes committees to assist and advise the Regulator (Pt 8; Regulations, Pts 4 and 5). These are:

• the Gene Technology Technical Advisory Committee, which provides scientific and technical advice, and • the Gene Technology Ethics and Community Consultative Committee, which provides

advice on ethical issues, the need for policies and codes of practice, community consultation, and risk communication matters.

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Licences to deal with GMOs [11.1110] The Gene Technology Act 2000 provides that it is an offence to deal with a GMO unless the dealing is (s 32):

• licensed by the OGTR • listed on the GMO Register • specified in an emergency dealing determination • a notifiable low risk dealing (a dealing with a GMO that does not involve the intentional release of GMOs into the environment) (Pt 6; Regulations, Pt 3, Div 2), or • specified in the Gene Technology Regulations 2001 as exempt (cl 6; Sch 2, Pt 1).

The maximum penalties for unauthorised dealings with GMOs are five years' imprisonment or 2000 penalty units in the case of an aggravated offence, and, in any other case, two years' imprisonment or 500 penalty units (s 32). An application for a licence to deal with a GMO may be made in writing to the OGTR (s 40). Before issuing a licence the OGTR must prepare a risk assessment and a risk management plan in relation to the proposed dealings (ss 47(1), 50). In preparing the risk assessment, the OGTR must consider any risks posed to the health and safety of people, and risks to the environment (s 47(2), (3)). The OGTR may refuse a licence or issue a licence subject to conditions, which may incorporate measures to manage risks (ss 55, 61 - 65). It is an offence to breach the terms of a licence to deal with GMOs (s 34). A licence may be suspended or cancelled by the OGTR for a number of reasons specified in the Act, including (s 68) where:

• the licence holder breaches licence conditions • the licence holder commits an offence under the Act • the OGTR is satisfied that the licence holder is no longer a suitable person to hold the licence, or • the OGTR becomes aware of risks associated with the dealings authorised by the licence,

and is satisfied that the licence holder is not in a position to implement measures to deal with them. Part SA of the Gene Technology Act 2000 also gives the Minister for Health powers to make determinations relating to dealings with GMOs in emergency situations. In practice, manufacturers of GMOs (such as GM cotton or canola) obtain a licence that approves the commercial release of their GMO, enabling them to sell seed to farmers. The licence conditions may set out conditions such as where the crop may be grown. Intellectual property rights (such as plant breeders rights) may also apply to restrict how GMOs can be used, for example by preventing the sale of plants for further propagation. Information about all dealings with GMOs and GM products, particularly license details, is contained in the GMO Record (s 138). Any person may inspect the Record (s 139), and it is available online.

Dealings not requiring a licence [11.1120] On its own initiative, or on application by a licensee, the OGTR can decide to list certain dealings, previously authorised by a licence, on the GMO Register (Pt 6, Div 3). The

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Register is publicly available online. If a dealing is listed on the GMO Register anyone may undertake it without a licence, subject to any specified conditions. The GMO Register is only to include dealings which the OGTR has determined involve minimal risk and it is not necessary for those dealing with the GMO to be subject to oversight by a licence in order to protect the health and safety of people or to protect the environment (s 79). At the time of writing, there was only one dealing listed on the GMO Register, the commercial release of four lines of colour modified GM carnations. Other GMOs that have been licensed have not been listed on the Register.

Public participation [11.1130] There is only limited scope for public participation in relation to decisions under the Gene Technology Act 2000.

Once a risk assessment and risk management plan are prepared for proposed GMO dealings which, in the OGTR' s opinion, involve a significant risk to the health and safety of people or the environment, the OGTR must publish a notice inviting public submissions on the risk assessment and risk management plan (s 52). The OGTR must not issue a licence for a dealing with such a GMO unless satisfied, having regard to the risk assessment, the risk management plan, any public submissions and any relevant policy guidelines, that the risks posed by the dealing can be managed in such a way as to protect human health and safety and the environment (s 56).

Moratorium in NSW [11.1140] In 2003, the NSW parliament enacted the Gene Technology (GM Crop Moratorium)

Act 2003 (Moratorium Act) to enable a moratorium to be placed on the commercial cultivation of certain genetically modified food plants. Subsequently, a three year moratorium was placed on the commercial cultivation of GM canola, due to concern about the impact that GM canola would have on markets and trade. In December 2007, after an independent review of the moratorium, the NSW government amended the legislation (which was due to expire in 2008), extending its operation until 1 July 2011, and replacing the GM canola moratorium with a blanket moratorium on all GM food crops in NSW. In 2011, this was further expanded until 2021. The Moratorium Act now prevents the cultivation for human consumption of genetically modified plants listed by the Minister for Primary Industries in the NSW Government Gazette (s 6). It is an offence to cultivate a GM food plant knowing that it is such a plant or being reckless as to whether it is (see [2.600]). The maximum penalty is two years' imprisonment or a maximum fine of 500 penalty units for an individual and 1,250 penalty units for a corporation (s 7).

However, the Minister can, upon application by a representative of a relevant industry make an order, published in the Government Gazette, approving a specified licensed GM food plant, or class of licensed GM food plants for commercial cultivation in all or part of NSW (s 7 A). GM canola has been given approval under this provision of the Moratorium Act for commercial cultivation in NSW. To grant an approval, the industry must meet certain criteria in relation to management of the GM food crop. The Minister must take into account advice provided by the NSW Expert Committee on Gene Technology (s 13) in considering the application.

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The Minister can also make an order that a certain GM food crop is exempt from the moratorium for the principal purpose of conducting experiments. The Moratorium Act uses a privative clause in an attempt to protect orders from challenge in the courts (s 11; see [2.510]). It is an offence under the Moratorium Act to sell, supply, destroy or move a plant that was cultivated in contravention of the moratorium (s 20). The Minister has a number of powers to direct action to be taken in relation to plants that have been cultivated in contravention of the moratorium (s 14). It is also an offence to fail to report a contravention of the moratorium within two days, where a person knows or suspects that a plant has been unlawfully cultivated (s 21).

Liability for contamination by GM • s [11.1150] The legislation governing GMOs does not address liability in the event that GMO

contamination occurs, for example, where an organic farmer's crops are contaminated with GM crops from an adjacent property. However, common law actions in tort, such as nuisance (see [2.160]), trespass or negligence, may be able to assist in circumstances where a person suffers loss or damage as a result of contamination by GMOs.

Case Study: Marsh v Baxter [2014] WASC 187 [11.1160] The case of Marsh v Baxter [2014] WASC 187 in Western Australia is the first known case in Australia involving a landholder bringing a common law action in tort (claiming negligence and private nuisance), and seeking damages related to contamination by GMOs.

In the case, Mr Marsh was claiming damages (due to economic loss) and a permanent injunction against Mr Baxter. Mr Marsh had lost organic certification of part of his property after eight GM canola plants were found to have grown up as self-sown volunteer plants from Mr Baxter's property (the certification body claiming the incursion had posed an "unacceptable risk" of contamination). The trial judge dismissed both causes of action, emphasising that Mr Baxter had been growing a lawful GM crop and had adopted a harvesting method that was implemented in an orthodox method. His actions had not unreasonably interfered with the use and enjoyment of Mr Marsh's property, nor had Mr Baxter acted negligently (and there was no basis to extend the law on claims for pure economic loss to these events). The claim for a permanent injunction to prevent Mr Baxter from swathing a GM canola crop also necessarily failed. At the time of writing, the case was under appeal to the Full Court of the Supreme Court of Western Australia. Although this is the decision of a trial judge in Western Australia and was determined on its own facts, it is an important test case regarding potential recourse to tort law for farmers concerned about contamination of their land from GMOs.

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(11.1160] However, the Moratorium Act does offer some protection from litigation where GM food plants have been unknowingly introduced on to land. The Moratorium Act provides that if (s 32A(l)):

• a GM food plant is present on any land • and the existence of the GM food plant on the land is attributable to the spread, dissemination or persistence of the GM food plant, and • the original introduction of that GM food plant to the land was not knowingly undertaken by or on behalf of an owner or occupier of the land no action can be taken in a NSW court or under NSW law against the owner or occupier of the land on account of the fact that the GM food plant is present on the land, or that the person has dealt with the GM food plant. This does not apply if a court is satisfied that a person deliberately dealt with a crop to gain a commercial benefit, knowing that the GM food plant was present, and where the interests of justice require another person's rights, with respect to that GM food plant, be recognised or protected (s 32A(2)). This subsection seems intended to protect the rights of manufacturers of GM products to prevent landowners dealing with GM food plants without having paid for them.

12 Biodiversity David Robinson Solicitor

Jonathan Bland

Overview ........................................................................................................................................................................ [12.10] International treaties .............................................................................................................................................. [12.30] Commonwealth framework ............................................................................................................................. [12.100] NSW biodiversity legislation ........................................................................................................................... [12.360] Protected native animals and plants .......................................................................................................... [12.710] LEPs and SEPPs .................................................................................................................................................... [12.860] Trees in urban areas ............................................................................................................................................ [12.980] Development control and offsetting ......................................................................................................... [12.1070] Clearing native vegetation ............................................................................................................................. [12.1350] Noxious weeds .................................................................................................................................................... [12.1560] Voluntary conservation of private land .................................................................................................. [12.1580]

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chapter 12 Biodiversity

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Overview

Biodiversity Convention

[12.1 OJ Biodiversity refers to the variety of all life on earth. It includes plants, animals,

[12.40] The main international treaty governing the protection of biodiversity is the 1992 UN Convention on Biological Diversity (Biodiversity Convention). It was opened for signature at the Earth Summit in Rio de Janeiro on 5 June 1992, and came into force on 29 December 1993. The Convention has been widely ratified, with over 190 Parties to the convention, including Australia.

microorganisms, and their genes, whether found on land, in freshwater or in marine environments. The protection of biodiversity in NSW is a joint responsibility shared between the Commonwealth and NSW Governments. The areas of Commonwealth Government responsibility are found in the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and generally reflect Australia's obligations under the international environmental treaties which Australia has ratified, with the balance of responsibilities falling to the NSW Government. Local councils can also play a significant role in protecting biodiversity through their responsibilities for making local planning and development decisions under the Environmental Planning and Assessment Act 1979 (NSW) (see Chapters 3 and 5). This chapter focuses on the conservation of terrestrial biodiversity, while Chapter 19 addresses some marine issues. This chapter also focuses primarily on biodiversity conservation on private land. Given that many of the major threats to biodiversity take place on private land, such as agricultural practices, grazing and land clearing, efforts to protect biodiversity must embrace private land if they are to be effective. The protection of biodiversity on public lands reflects the more traditional conservation model which involves the establishment of protected areas, such as national parks and nature reserves, which in NSW cover about 8.4% of the State. The establishment of national parks and reserves in NSW occurs under NSW legislation (such as the National Parks and Wildlife Act 1974), or at the Commonwealth level (under the Environment Protection and Biodiversity Conservation Act 1999). This is covered in detail in Chapter 4 and Chapter 7 respectively.

Biodiversity and ecosystem services [12.20) Biodiversity (plants, animals and micro-organisms) and the ecosystems to which they

contribute help to provide the clean air, soil and water that support human life. This includes everything from purifying drinking water and pollinating crops, to sequestering the carbon emissions that are linked to global climate change. These have recently become known as "ecosystem services" or "environmental services". The document, A New Biodiversity Strategy for New South Wales: Discussion Paper (2008) emphasises the importance of the role of biodiversity in providing ecosystem services stating that "[b ]iodiversity is important both for its intrinsic value and the ecosystem services it provides to society" (page v). The problem with ecosystem services is that they are largely invisible. The challenge is how to place a value on ecosystem services. This has led to an increasing reliance on market-based approaches for environmental services (see [1.420]).

The Convention recognises the importance of biodiversity for maintammg life-sustaining systems on earth. It has three main objectives: the conservation of biodiversity; the sustainable use of biodiversity; and the fair and equitable sharing of the benefits arising from the use of genetic resources (such as for food, pharmaceuticals and biotechnology) (Article 1). In this regard, the Convention adopts a rather anthropocentric approach by expressly providing for the sustainable use of resources and the sharing of genetic material. The Convention adopts a broad definition of biodiversity. It covers biodiversity at all levels: species, genetic resources and ecosystems, whether found on land, in the sea or in freshwater. This approach differs from the nature conservation approach of earlier decades which largely focused on protecting iconic natural areas. The Convention also recognises the close and traditional dependence of many indigenous and local communities on biological resources and the desirability of sharing the benefits arising from the use of traditional knowledge equitably. In terms of global threats to biodiversity, the Secretariat of the Convention has identified five main pressures on biodiversity, namely, habitat loss, the unsustainable use and over-exploitation of resources, climate change, invasive alien species, and pollution (Global Biodiversity Outlook, p 3, 2010: https://www.cbd.int/doc/publications/gbo/gbo3-final-en.pdf). In response to these pressures, the Secretariat has identified five interdependent strategic goals: 1.

addressing the underlying causes of biodiversity loss

2.

reducing the direct pressures on biodiversity and promoting sustainable forms of production

3.

improving the status of biodiversity by safeguarding ecosystems

4.

safeguarding the benefits to all of biodiversity and ecosystem services

5.

enhancing implementation through planning and management

Global Biodiversity Outlook 4, p 25, 2014. Available at: https://www.cbd.int/gbo/gbo4/ pu blication/gbo4-en. pdf).

Obligations

International treaties [12.lO] In the international sphere, there are two main treaties which apply globally to the

protection of species and habitats: the Biodiversity Convention and CITES. There are many other environmental treaties which protect biodiversity too, although these usually have a narrower focus on a particular species or group of species (eg, migratory birds, blue fin tuna) or a particular type of habitat (eg tropical forest).

[12.50] The Convention requires States to do a range of things to protect biodiversity. These include: developing national strategies and plans for the conservation and sustainable use of biodiversity (Article 6); identifying and monitoring threatened species and ecosystems, including identifying threatening processes and activities (Article 7); establishing a system of protected areas as well as promoting conservation outside of these areas (Article 8); and putting in place procedures to assess and consider the environmental impact of proposed projects that are likely to have significant adverse impacts on biodiversity (Article 14).

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CITES [12.60] The 1973 Convention on International Trade in Endangered Species (CITES) regulates international trade in threatened species. As at June 2015, there are 180 Parties to the Convention, including Australia, which ratified the Convention in 1976, when it also came into force.

Obligations [12.70) CITES protects threatened species where they may be affected by international trade by

requiring import and export permits for species listed in Appendix 1, and export permits for species listed in Appendix 2. Both animals and plants can be listed, and the Convention applies whether the wildlife specimen is dead or alive. Before issuing an export permit, the country of export must be satisfied that the export will not be detrimental to the species. Before issuing an import permit, the country of import must be satisfied that the import is not for a purpose that will be detrimental to the survival of the species (Articles III and IV) . Any Party can propose a species for inclusion on the lists of species which are protected under CITES. The proposal must be accepted by a two-thirds majority of the Parties to become effective (Article XV). Despite its stated purpose of protecting threatened species, one of the potentially perverse effects of CITES is that it may result in damage to habitat if people seek to establish other productive uses of a habitat area once trade in a particular species is regulated.

Species-specific and habitat-specific treaties [12.80) In addition to the Biodiversity Convention and CITES, Australia is a signatory to many other international treaties which seek to protect biodiversity by focusing on a particular species or group of species or a particular habitat. Examples of these types of treaties include:

• the Convention on Wetlands of International Importance (1971) (known as the Ramsar Convention: see (14.640]) • the Convention on the Conservation of Migratory Species of Wild Animals (1979) (known as the Bonn Convention) • the Agreement between the Government of Australia and the Government of the People's • •

[12.110)

the treaty (see (1.440]). In this regard, the Commonwealth Government has used its constitutional power in relation to external affairs (Constitution, s 51(xxix): see (1.450]) to enact the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). An object of the Act is to implement Australia's international environmental obligations under the Biodiversity Convention, the Ramsar Convention, and the Convention on the Conservation of Migratory Species of Wild Animals (EPBC Act, ss 3(1)(e), 303BA). The Act contains detailed provisions for the listing and protection of threatened species and migratory species in Australia, and the protection of listed Ramsar wetlands: see (12.140] below. The Government has also given effect to CITES through Parts 13A and 17 of the Act which contain penalties for importing and exporting species protected under CITES without a permit: see below.

Commonwealth framework [12.100) Australia's biodiversity is exceptional. Our country is both "mega diverse" and geographically isolated, with the consequence being that many of our species are endemic (that is, they are found only in Australia).

Policy framework: Australia's Biodiversity Conservation Strategy [12.110) In compliance with its obligations under the Biodiversity Convention, the Commonwealth Government produced the 1996 National Strategy for the Conservation of Australia' s Biological Diversity. In October 2010 it replaced this with Australia's Biodiversity Conservation Strategy 2010-2030. The 2010-2030 Strategy identifies six main threats to biodiversity in Australia (pp 22-30), namely: 1. loss, fragmentation and degradation of habitat (for example, resulting from land clearing)

2. 3.

4.

Republic of China for the Protection of Migratory Birds and their Environment (1986) (known as CAMBA)

5.

the Agreement between the Government of Japan and the Government of Australia for the Protection of Migratory Birds and Birds in Danger of Extinction and their Environment (1974) (known as JAMBA) and

6.

the Convention for the Protection of the World Cultural and Natural Heritage (1972) (the World Heritage Convention: see (17.40]) .

Are these treaties enforceable? [12.90) As with all international treaties, none of the treaties mentioned above are directly

enforceable in Australia unless there is legislation which specifically implements the provisions of

chapter 12 Biodiversity

invasive species (for example, weeds and foxes) unsustainable use of natural resources (species are most threatened in the regions where most Australians live) changes to the aquatic environment and water flows (such as diversions of water from creeks and rivers, and water pollution) inappropriate fire regimes (such as burning-off regimes that insufficiently incorporate biodiversity considerations) climate change (such as changes to ecosystems caused by changing temperatures and increased frequency of extreme weather events).

The Strategy gives guidance to all levels of government, the community, industry and scientists on how to they should manage and protect Australia's plants, animals and ecosystems against these threats over the next ten years. The Strategy is not a legally enforceable document. Its effectiveness depends upon the extent to which it is enacted into legislation and other legal instruments, and the extent to which the electorates demand from their governments more resources to implement the Strategy. The Strategy was under review, with public consultation, as at September 2015 (http://www.environment.gov.au/biodiversity/conservation/strategy).

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EPBC Act and biodiversity [12.120] The main law protecting biodiversity at the Federal level is the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) and the Environment Protection and Biodiversity Conservation Regulations 2000 (EPBC Regulations) . The EPBC Act provides a parallel system of biodiversity protection to NSW law.

(12.160]

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Environment Minister to protect land which has very high biodiversity value, such as the habitat of nationally listed threatened species (EPBC Act, s 304). For more information about conservation agreements between private landowners and the Commonwealth, see [12.1660] below.

Threatened species and ecological communities How does the EPBC Act protect biodiversity? [12.130] The EPBC Act protects biodiversity, including threatened species, by:

• Establishing a process to identify and list species and ecological communities which are threatened nationally (see (12.140]) • Requiring activities or developments which are likely to have a significant impact on a matter of national environmental significance (most of which affect biodiversity) to undergo environmental assessment and approval (see Chapter 7)

• Requiring a person to obtain a permit before carrying out an activity that will kill, injure or

take a listed threatened species or part of an ecological community, if the activity will occur on Commonwealth land (see [12.280])

• Establishing a permit system which regulates the import and export of wildlife (see this Chapter below).

Australia's National Reserve System [12.140] Australia also has a National Reserve System (NRS) the goal of which is to establish a

comprehensive, adequate and representative system of protected areas which will contribute towards the long-term protection of Australia ' s terrestrial and freshwater biodiversity (see Australia's Strategy for Australia's National Reserve System 2009-203 0: http:// www.environment.gov.au/parks/publications/nrs/nrsstrat.html). The Strategy seeks to ensure that a sample of all of Australia's diverse ecosystems, and the plants and animals they contain, are protected in some way. It provides a framework to assist Australia to meet its international legal obligations under the Biodiversity Convention. The four types of protected areas which are recognised in the National Reserve System are:

• Public reserves (or government-owned areas) which are protected under Commonwealth or State legislation (see [4.50]: note that there are no Commonwealth reserves in NSW) • Indigenous Protected Areas (protected through traditional rules) • Private protected areas (privately owned land protected in perpetuity: these presently constitute about 5 % of the National Reserve System), and • Shared management reserves (such as land which is jointly managed by government and traditional owners under an Indigenous Land Use Agreement: see [20.390]). The NRS has no statutory basis itself. Rather, it relies upon areas which are either established and managed under legislation (eg under the EPBC Act) or by other "effective means", such as through contract or under a conservation agreement. For example, under the EPBC Act, a public or private landowner can enter into a conservation agreement with the Commonwealth

[12.150] The EPBC Act allows particular species and communities to be identified and listed as

being threatened, thus triggering protection under the Act. The Commonwealth Environment Minister must maintain a list of threatened species, divided into the following categories (EPBC Act, ss 178, 179, 182, 186, EPBC Regs, reg 7.01):

• extinct - the last member of the species has died (s 179(1)) • extinct in the wild - the species is known to only survive in cultivation, or as a naturalised

population outside its past range, or it has not been recorded in its known and/or expected habitat despite exhaustive surveys (s 179(2))

• critically endangered - the species is facing an extremely high risk of extinction in the wild in the immediate future (s 179(3)) • endangered - the species is not critically endangered and is facing a very high risk of extinction in the near future (s 179(4)) • vulnerable - the species is not critically endangered or endangered and is facing a high risk of extinction in the wild in the medium-term future (s 179(5)) • conservation dependent - that is, a native species protected under a specific conservation

program, which, if stopped, would result in the species becoming vulnerable, endangered or critically endangered (s 179(6)). These lists include all types of native species (frogs, birds, reptiles, mammals), freshwater fish (ss 179, and 528) and marine fish (s 180). The EPBC Act also protects ecological communities. An ecological community is defined as: (a) an assemblage of native species that inhabit a particular area, and (b) which meets the additional criteria set out in the EPBC Regs (s 528, reg 7.02). Examples of threatened ecological communities found in NSW which have been listed are: the Blue Gum High Forest of the Sydney Basin Bioregion, the Eastern Suburbs Banksia Scrub of the Sydney Region, and the TurpentineIronbark Forest in the Sydney Basin Bioregion. The EPBC Act requires the Commonwealth Environment Minister to maintain a list of threatened ecological communities, divided into the following categories (ss 181, 182, 187):

• critically endangered (s 181(1a)) • endangered (s 181(16)) • vulnerable (s 181(1c)) .

Unlike the system in NSW under the Threatened Species Conservation Act 199 5, the EPBC Act does not allow individual populations of threatened species to be listed.

R ecovery plans [12. 160] A recovery plan sets out the steps necessary to stop the decline and to support the recovery of a threatened species or an ecological community and attempts to maximise the

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chances of long-term survival (s 270). As at April 2015 some 506 recovery plans have been made or adopted under the EPBC Act (see: http://www.environment.gov.au/cgi-bin/sprat/public/ publicshowallrps.pl). Once a species or ecological community is listed as threatened, the Commonwealth Environment Minister must decide whether to have a recovery plan for it (s 269AA). In making this decision the Minister must consider the recommendation of the Scientific Committee as to whether there should be a recovery plan (ss 189(1B)(c), 269AA(3)). When making and adopting a recovery plan, the Minister must consider advice from the Scientific Committee and consult the public (s 269A(5)). The Commonwealth Environment Minister must not act inconsistently with a recovery plan when deciding whether or not to approve an action under sections 18 or 18A which may have a significant impact on a listed threatened species or a threatened ecological community (s 139(1)(b)) (see Chapter 7). Also, Commonwealth agencies must not contravene recovery plans and are bound to implement a recovery plan in Commonwealth areas (ss 268, 269, 525). If a recovery plan overlaps a Commonwealth-State jurisdictional boundary, the Commonwealth "must seek the cooperation of the state with a view to making and implementing the plan jointly" (ss 269(2), 269A(3)).

Recovery plans for the Southern Right Whale (Eubalaena australis] [12.170] Endemic to the southern hemisphere, and listed as an endangered species under the EPBC Act, the Southern Right Whale had declined in population from over 55,000 in the 1700s to just 300 in the 1920s, largely due to the whaling industry. The 2005-2010 Recovery Plan under the EPBC Act identified entanglement from fishing gear and vessel disturbance as known present-day threats to the Southern Right Whale, and whaling, climate variability and change, noise interference, habitat modification and overharvesting of prey as potential threats. While the review of the 2005-2010 Recovery Plan reported increasing numbers within 2 km of southwest Australian shores, there was little evidence of population increase off the southeast Australian coastline. Recognising the unlikelihood of achieving the delisting objective in the short-term, the 2011-21 Recovery Plan sets five interim objectives. Three relate to population measurement and discovering why southeastern and southwestern recovery rates differ. The others seek to increase or maintain legal and management protections, for example by developing codes of conduct with the lobster and octopus fishing industries to reduce the risk of entanglement.

Inevitably, the Recovery Plans for the Southern Right Whale have not provided a silver bullet, or actionable grounds to bring proceedings to save the whale. However they do provide an important source of information to assist population recovery. They illustrate the importance of continuing scientific monitoring and research, increased industry and community awareness (for example, reporting of any instances of entanglement or vessel disturbance), and of seeking consistent action from the various governments involved, both State and Commonwealth.

Key threatening processes [12.180] The Commonwealth Environment Minister must also establish a list of key threatening

processes (ss 183, 188). A process is regarded as threatening if it "threatens, or may threaten, the survival, abundance or evolutionary development of a native species or ecological community" (s 188(3)). A process can be raised to the category of a key threatening process if it (s 188(4)):

[12.200]

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• could cause a native species or an ecological community to become eligible for listing in any category (other than conservation dependent) • could cause a listed threatened species or a listed ecological community to be raised to a category that represents a "higher degree of endangerment", or • adversely affects two or more list threatened species or ecological communities. As at the date of writing, 21 processes had been listed. Examples include: land clearance; predation by foxes, feral cats and pigs; invasion by escaped garden plants, and loss of habitat caused by climate change.

Threat abatement plans [12.190] Within 90 days of a key threatening process being listed, the Commonwealth

Environment Minister must decide whether to have a threat abatement plan (TAP) (s 270A). A threat abatement plan identifies what needs to be done in order to reduce the threatening process to an acceptable level so as to maximise the chances of the long-term survival of the species or communities which are affected (s 271). There is no obligation on the Minister to prepare and make a threat abatement plan: the Minister can choose to prepare one if the Minister thinks it is a feasible, effective and efficient way to abate a process. Before making a decision, the Minister must obtain advice from the Threatened Species Scientific Committee and any State which may be affected. For example, the Threatened Species Scientific Committee (see (12.210] below) recommended against making a nationally coordinated TAP on the key threatening process of "loss of climatic habitat caused by anthropogenic emissions of greenhouse gases" primarily because it would not have had any impact on causal factors at an international level, and it was felt that it would duplicate actions already under way as part of the National Greenhouse Strategy (1998). At least every five years the Minister must reconsider the decision on whether to have a threat abatement plan. When making a plan, the Minister must obtain and consider the advice of the Scientific Committee and must consult the public (ss 274, 275). Once a plan is made, the Commonwealth Environment Minister must not act inconsistently with a threat abatement plan when deciding whether or not to approve an action under sections 18 or 18A which may have a significant impact on a listed threatened species or a threatened ecological community (s 139(1)(6)) (see Chapter 7). Commonwealth agencies must not contravene the plan and the Commonwealth is bound to implement the plan in Commonwealth areas (ss 268, 269, 525).

The nomination and listing process [12.200] When the EPBC Act was first introduced it allowed any person to nominate a species or community at any time. However in 2007 this provision was repealed and replaced with a more systematic listing process (ss 194A- 194T).

Since 2007 the listing process, both for species and key threatening processes, revolves around annual "assessment periods". At the beginning of an assessment period, the Commonwealth Environment Minister publicly invites people to nominate by a certain date certain groups of

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species, ecological communities or threatening processes, or regions in which they are found. The nominations are then given to the Threatened Species Scientific Committee which considers all the nominations and prepares a proposed priority list for the Minister to consider. The Minister finalises the list of species, communities and processes that will be assessed (finalised priority assessment list) and the Scientific Committee invites the public to comment on it. The Scientific Committee then assesses the final list and gives advice to the Minister. The Minister makes the final decision as to whether a species, ecological community or key threatening process is listed or not. If the Minister decides not to list, the Minister must publish that decision on the internet within 10 days and, if a person nominated the species, community or process, the Minister must inform that person of their decision, giving reasons why it was not listed (s 194Q).

The Threatened Species Scientific Committee [12.210] The EPBC Act established the Threatened Species Scientific Committee (ss 502, 503 ). The role of the Committee includes advising the Minister on the amendment and updating of the threatened species lists, ecological community list, and on recovery and threat abatement plans. A major difference between the EPBC Act and the NSW system is that under the EPBC Act the Minister is responsible for deciding what to list, although the Minister's discretion is restricted in that the Minister can only take scientific matters into account, such as whether the species meets the scientific listing criteria and the impact of listing on the survival of the species. Socioeconomic factors cannot be taken into account (ss 186, 187)

Implications of listing [12.220] Once a species or ecological community has been listed as threatened under the EPBC Act, it triggers the following provisions:

• Activities (anywhere in Australia) which are likely to significantly affect the species or community must be referred, assessed and approved • If the species or community is found on Commonwealth land, a permit is required to kill, injure, move, take or trade the specimen (s 196) • The Commonwealth Environment Minister can list the species' habitat as "critical habitat" (s 207A) • The Commonwealth Environment Minister can prepare a recovery plan for the species or community (s 208A). Each of these are discussed below in this Chapter.

Matters of national environmental significance [12.230] An activity that is likely to significantly affect a nationally listed species or ecological

community is identified under the EPBC Act as one of the eight matters of national environmental significance (NES) which trigger the assessment and approval provisions of the Act.

•

The matters of national environmental significance listed in the Act (Ch 2, Pt 3) are: world heritage

- - -----

[12.240)

• national heritage • wetlands of international importance (listed under the Ramsar Convention) • nationally listed threatened species and communities (see above) • listed migratory species (see below) • protection from nuclear actions (including uranium mines) • Commonwealth marine areas • the Great Barrier Reef Marine Park • protection of water resources from coa I Seam gas development and large coal mining development. Indeed most of these matters relate either directly or indirectly to biodiversity. This is not · · the Act 1·s intended to implement Australia's commitments under a range of surpnsmg, as . . . . d h international environmental treaties, such as the B10d1vers1ty Convention, CITES an t e Migratory Animals Convention (see [12.30]-[12.70] above). Actions which are likely ~o have a significant effect on a matter of NES must be referred to the Commonwealth Env1ronm~nt Minister who decides whether to require further assessment and approval (unless an exemption applies). This Chapter does not deal with the referral, assessment and approval process for matters of NES under the EPBC Act (see Chapter 7).

Case study: Flying foxes, biodiversity and international obligations Booth v Bosworth [2001] FCA 1453 [12.240] The first legal action involving the EPBC Act occurred in 2?01, i~ a case brought by the EDO on behalf of conservationist Carol Booth. The claim agamst Mr Bosworth was that the large-scale electrocution of flying foxes at a lychee farm m north Queensland contravened the EPBC Act. The court linked operation of the fence to approximately 18,000 flying fox deaths in the 2000 lychee season. Branson J found that continued operation woul~ cause the species to be endangered in five years. Such a ~eclin_e wo~ld ~ndermme the contribution of the flying foxes to the genetic and b10log1cal d1vers1ty of_ the Wet Tropics World Heritage Area, thereby causing a significant impact: Accordmgly, t~e Federal Court granted an injunction restraining the further operation of the electnc grid (see also [17.740]). Booth v Bosworth demonstrates four elements of the protection afforded by the EPBCAct: 1. it can be initiated by an individual or a community group, not just the government (see [2. 790] 'Access to the Courts')

2. 3. 4.

it can apply even if only a single species could be lost it can control action undertaken outside a World Heritage Area if that action could impact on the value of the World Heritage Area (see also [17_-730])_ the EPBC Act implements in Australia the obligations contained m vanous international treaties ratified by the Australia.

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Independent Expert Scientific Committee on Cool Seam Gos and Lorge Cool Mining Development [12.250] With amendments in 2012, the Federal Government established the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (s 505C). Where the Minister believes that coal seam gas or large coal mining developments are likely to impact on water resources or have an adverse impact on a matter protected by the EPBC Act, the Minister must obtain advice from the Committee (s 131AB).

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In addition to these Agreements, the Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014 has been introduced to the Federal Government. The Abbott Government's push for a 'one-stop shop' for environmental assessment and approval seeks to reduce delays in approvals, to increase efficiency in decision-making (one government, not two involved), and to better enable uniformity in standards. However critics are concerned that bilateral agreements undermine the role of the EPBC Act and the Commonwealth to provide an appropriate level of oversight on State Government-sponsored projects. For more information on the Commonwealth/NSW bilateral assessment agreement, see [7.630]-[7.640].

The role of the Committee includes (s 505D):

• The provision of advice in relation to proposed coal seam gas developments or large coal mining developments that are likely to have a significant impact on water resources. • Providing advice regarding bioregional assessments and research priorities and projects. • Publishing information regarding improving consistency and comparability of research in relation to coal seam gas and large coal mining developments and their impact on water resources.

• Publishing information regarding development of water resource protection standards. • Collecting, analysing and disseminating scientific information regarding coal seam gas and large coal mining development and impacts on water resources.

Bilateral assessment agreement

Critical habitat [12.270] The Commonwealth Environment Minister can list "critical habitat" on a public register where an area has been identified as being critical to the survival of a listed threatened species or listed threatened ecological community (s 207 A). As at the time of writing there are five listed habitats (April 2015), although there is no critical habitat listed by the Commonwealth in NSW.

A person is guilty of an offence if they knowingly damage critical habitat, although this provision only applies if the habitat is in a Commonwealth area (ss 207B, 525). The Commonwealth must ensure that any contract for the sale or lease of Commonwealth land that includes critical habitat includes a covenant which protects the habitat that binds successors in title (s 207C).

[12.260] In practice, many of the matters which are referred each year to the Commonwealth

Environment Minister involve actions which affect nationally listed threatened species which are found in NSW. Indeed, it is possible that a particular development could be regulated by both the EPBC Act and its NSW equivalents, the Threatened Species Conservation Act 1995 (NSW) (TSC Act) and the Fisheries Management Act 1994 (NSW). To this end, bilateral agreements enable decisions made by State Governments to be accredited under the EPBC Act. There are currently two bilateral agreements in NSW: 1.

Draft Approval Bilateral Agreement

2.

Assessment Bilateral Agreement

If the Draft Approval Bilateral Agreement is made, it will accredit New South Wales processes for approval of proposed actions or actions falling under an accredited process that would otherwise be assessed by the Australian Government. The Assessment Bilateral Agreement is an agreement between the Commonwealth of Australia and New South Wales. Actions that meet assessment criteria specified by the Agreement do not require assessment under the EPBC Act. For example, the Commonwealth can accept a species impact statement prepared under the NSW legislation if the assessment was in accordance with the bilateral agreement. After assessment, the proposed action still requires approval under the EPBC Act from the Commonwealth Environment Minister.

Permits to take threatened species [12.280] Under the EPBC Act, it is an offence to kill, injure, take, trade, keep or move a listed

threatened species or a member of an ecological community without a permit authorising the activity (ss 196 - 196E, 197). These provisions only apply if the species or community is found in a Commonwealth area, that is, on land owned or leased by the Commonwealth, or in the coastal sea (s 525). This permit system does not apply to whales, dolphins or porpoises (collectively referred to as "cetaceans"), (s 195) which are protected under a separate permit system relating to the Australian Whale Sanctuary (see [12.320] below). The Act contains a long list of exemptions from the requirement to obtain a permit (ss 197, 198) which include:

• • •

actions taken under a recovery plan activities likely to affect a threatened species or ecological community as a matter of NES which have already been approved by the Minister under sections 18 or 18A actions that are reasonably necessary to prevent or relieve suffering of the species or to prevent a risk to human health.

Permits are issued by the Commonwealth Environment Minister (ss 200, 201). The Minister must not issue a permit unless satisfied that the activity will contribute significantly to the conservation of the species or community, that the impact on the species or community is incidental and not the primary purpose of the action, or that the activity is of particular

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significance to indigenous tradition (s 201). An application can be made to the Administrative Appeals Tribunal to review a decision to issue, refuse, suspend or cancel a permit, but only if the decision was made by the Minister's delegate (rather than the Minister personally) (s 206A).

Protection of other species [12.290] In addition to nationally listed threatened species and ecological communities, the EPBC Act also seeks to protect three other categories of species:

• • •

birds in marine areas (eg penguins, albatross, pelicans, ibis, etc).

Listed marine species are protected through a permit system (threatened species and cetaceans are protected under their own specialised permit systems: see [12.350] below). It is an offence to kill, injure, take or keep a listed marine species without a permit, subject to exceptions (ss 254 - 255, 258). The permit provisions do not apply if the species is also a listed migratory species, a listed threatened species or a cetacean (see below) (s 253). Decisions by the Minister's delegate regarding permits can be reviewed in the Administrative Appeals Tribunal (s 263A).

marine species, and

Wholes, dolphins and porpoises

whales, dolphins and porpoises (cetaceans).

[12.320] There are approximately 45 different species of whales, dolphins and porpoises found in Australian waters, five of which are listed as nationally threatened (blue whale, southern right whale, sei whale, fin whale and humpback whale). All whales, dolphins and porpoises are collectively referred to in the Act as "cetaceans" . All cetaceans, whether listed as threatened or not, are protected under the EPBC Act.

[12.300] The EPBC Act requires the Commonwealth Environment Minister to establish a list of migratory species which are protected (s 209). The purpose of this provision is to enable Australia to comply with its obligations regarding migratory species under the international treaties it has ratified. Thus, the EPBC Act list must include all of those species which are listed under the Bonn Convention, the Agreement between Australia and China for the Protection of Migratory Birds (CAMBA), and the Agreement between Japan and Australia for the Protection of Migratory Birds (JAMBA) (s 209). There is no reference here to the Scientific Committee - the listings are made clear by the international agreements. The list includes various species of turtles, dolphins and whales, with the majority of listed species being birds.

•

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chapter 1 2 Biodiversity

migratory species

Migratory species

•

[12.320)

The EPBC Act protects migratory species in two ways: Actions that will have, or are likely to have, a significant impact on migratory species are listed as a matter of NES and must therefore be referred to the Minister for assessment and approval (see Chapter 7). The Act establishes a regime which regulates the killing, taking, injuring or trading of listed migratory species through a permit system (ss 211 - 222). These provisions do not apply to whales, dolphins and porpoises (which are protected under other provisions), or if a species is already listed as threatened (s 210).

Listed marine species [12.310] The EPBC Act protects marine species which are listed by the Minister (called listed marine species) (s 248). Listed marine species include:

• sea snakes • seals • crocodiles • dugongs • marine turtles (including leatherbacks) • seahorses, sea dragons and pipefish

Legal protection for whales, dolphins and porpoises found in NSW and Commonwealth waters varies, depending on where they are found:

• •

Marine mammals found within three nautical miles of the NSW coast are protected under the NSW National Parks and Wildlife Act 1974 (see [12.850] below) Whales, dolphins and porpoises (cetaceans) found more than three nautical miles from the coast and up to 200 nautical miles (and in any other offshore areas over the Continental shelf declared to be in the Australian Whale Sanctuary), are protected under the EPBC Act.

The EPBC Act establishes the Australian Whale Sanctuary which covers all Commonwealth waters from three nautical miles from the Austra~ian coastline up to the boundary of Australia's Exclusive Economic Zone. It also includes some offshore territorial waters and islands located over the Continental shelf (s 225). Waters within three nautical miles from the NSW coastline are territorial waters and are managed by the NSW Government (Coastal Waters (State Title) Act 1980 (Cth)). It is an offence to kill, injure, take or interfere with cetaceans m the Australian Whale Sanctuary (ss 229 - 232). Exceptions to these offences include:

• • •

That the activity is authorised by a permit from the Minister Whale watching (in accordance with the EPBC Regulations), but not for commercial purposes Controlled actions in Commonwealth marine areas which are covered by an approval (see [12.850]).

The Commonwealth Environment Minister can issue a permit to engage in activities affecting cetaceans (s 238). Decisions regarding permits which are made by the Ministers delegate can be reviewed in the Administrative Appeals Tribunal (s 243A), but this does not apply if the decision was made by the Minister personally. Although an action which is likely to have a significant impact on cetaceans is not listed as a matter of national environmental significance under the EPBC Act, actions which are likely to

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have a significant impact on a Commonwealth marine area (waters between three and 200 nautical miles from the coast) are listed, triggering the assessment and approval provisions of the EPBC Act (ss 23, 24) .

Case study: Japanese whaling case Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008) 165 FCR 510 [12.330] In 2008, in a case brought by the Humane Society International, the Federal Court of Australia declared that a Japanese whaling company, Kyodo Senpaku Kaisha Ltd, had breached the EPBC Act by killing, injuring, taking and interfering with Antarctic minke whales and fin whales, and injuring humpback whales in the Australian Whaling Sanctuary, without permission or authorisation. Kyodo had argued that Japan did not recognise Australia's sovereignty over those parts of the Australian Whale Sanctuary which were in Antarctic waters.

The Federal Court issued an injunction restraining Kyodo from killing and injuring whales in the Australian Whale Sanctuary unless permitted or authorised to do so under the EPBC Act. The Court found that the practical difficulty of enforcing the injunction against a company incorporated in Japan was not a reason to withhold relief.

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chapt er 12 Biodiversity

than this by prohibiting the export of many specimens of Australian native wildlife and plants, including all indigenous terrestrial vertebrates, whether or not they are listed under CITES (ss 303DA, 303DB).

NSW biodiversity legislation [12.360] In NSW, legislative protection of biodiversity and threatened species under NSW law is split between the Environmental Planning and Assessment Act 1979 (EPA Act) and the Threatened Species Conservation Act 1995 (TSC Act). The EPA Act regulates development affecting biodiversity and threatened species, mainly through the use of environmental planning instruments (LEPs and SEPPs) and the development consent process (see (12.1080] below, and Chapters 3 and 5).

The TSC Act deals with the listing of threatened species, the licensing of activities affecting threatened species, the use of strategic tools (such as recovery plans and threat abatement plans), and biobanking (see (12.1200] below). For protection of marine species see the Fisheries Management Act 1994 (covered in Chapter 19). For controls on clearing in rural areas see the Native Vegetation Act 2003 (NV Act) (see (12.1370]). Non-threatened native species are afforded some protection under the National Parks and Wildlife Act 1974 (NPW Act) (see (12.730]) .

Wildlife conseNotion plans

History: more biodiversity protection law, exceptions and complexity

[12.340] The Commonwealth Environment Minister can choose to make a wildlife conservation

[12.370] On one hand, biodiversity controls on proposed development have become more

plan for protecting, managing and conserving migratory species, listed marine species or cetaceans (ss 285, 297). Before making a wildlife conservation plan the Minister must consider any advice from the Scientific Committee and consult the public (ss 285(6), 290). If a listed migratory or marine species or cetacean becomes listed as a threatened species, the wildlife conservation plan ceases to have effect and may be replaced by a recovery plan (s 299).

Regulation of wildlife trade [12.350] The EPBC Act also regulates international trade in wildlife to and from Australia (Part 13A, ss 303BA- 303GY). These provisions:

• regulate the export of native species of plants and animals • support the conservation efforts of other countries by regulating the import of specimens, and • control the import of plants and animals which could adversely affect native species and their habitats.

The Act establishes a system for the listing of species, and establishes a system of permits and offences. One of the objects of Part 13A is to ensure that Australia complies with its obligations under CITES (ss 303BA, 303ER) (see (12.60] above), although the legislation goes much further

stringent over time. The requirement for environmental impact statements (EISs) was introduced in 1980 (when the EPA Act commenced), in relation to designated development assessed under Part 4 and for the activities of public authorities having significant impacts on the environment under Part 5. Additional species impact statement (SIS) requirements commenced in 1995, in relation to development likely to significantly effect threatened species listed under the TSC Act, and the Court of Appeal judgment in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 reinforced the SIS requirement. In 2005, when the NV Act commenced, a 'maintain or improve' environmental outcomes test became a pre-condition to clearing rural land. The 'maintain or improve biodiversity outcomes' test has since become a cornerstone of three subsequent policy developments:

• • •

biobanking (2008), under which development approval can be obtained without the need to prepare an SIS) biodiversity certification of land (2011) biodiversity offsets, both in relation to the EPA Act, approvals generally, and for major projects (2014).

On the other hand, governments have sought to lessen the impact of stringent biodiversity controls in respect of proposals for large development that the government wants to encourage. Biodiversity controls are a two-edged sword for governments: as regulators, they wish to stop the decline in biodiversity, but as infrastructure proponents and economic managers, they wish to

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fast-track the approval of projects which provide electorally attractive services, economic growth and employment. From the outset of the EPA Act, in 1980, the Minister could 'call-in' any Part 4 development, effectively prevent objector appeals, and grant consent to projects that the local council would not approve (for example, because of adverse impact on biodiversity) (former section 101). A more systematic approach that theoretically enabled the State Government to fast-track approvals of big projects (including overriding biodiversity protection requirements) existed between 2005-2011 under former Part 3A of the EPA Act. While Part 3A was repealed in 2011, the 'State Significant Development' and 'State Significant Infrastructure' processes that replaced it retain the Part 3A characteristic that there is no legal obligation to prepare an SIS or participate in biobanking. Rather, biodiversity protection in the assessment of major project proposals remains a matter for ad hoc, discretionary determination. In 2014 two policy developments challenged the incongruous scenario described above (of biodiversity protection law becoming more stringent over time, but not being applied to all development). The first was the release of a policy on offsetting for major projects, in which the Government reduced uncertainty surrounding the biodiversity impact assessment of major projects (refer to 'Other Offsetting', at (12.1340]). The second was a broad review of the biodiversity legislation. The Minister for the Environment commissioned a comprehensive review of the NV Act, the TSC Act, the parts of the NPW Act that relate to native plants and animals and private land conservation, and the Nature Conservation Trust Act 2001. The Department prepared six background papers to assist the panel. The panel commissioned reports from environmental and farming groups and consulted widely. It reported to the Minister on 18 December 2014. The recommendations of the panel, including for replacement legislation (a new Biodiversity Conservation Act) are summarised at the end of this chapter (see (12.1670]). It is important to note that neither the EPA Act nor the TSC Act provide absolute protection for threatened species, even where they are faced with significant and irreversible impacts. Rather, these Acts establish a procedure for identifying and assessing the impacts of proposed activities on threatened species and their habitat, and then give the relevant decision maker (eg, a local council, Local Land Services or the Minister) a discretion as to whether to permit the development or activity to proceed. However, the NV Act introduced a substantive biodiversity control in respect of rural land clearing, namely a requirement to maintain or improve environmental values. This substantive control went beyond mere information gathering and procedural requirements (SISs), and has become the cornerstone of offsetting (including biobanking). An unwanted by-product of the difficulty of evolving a development assessment system that filters out unsustainable projects or aspects of projects is that the regulatory system has become inordinately complex. Numerous, separate assessment pathways currently exist for development that impacts on biodiversity: the NV Act for rural land clearing proposals, SIS requirements for some high impact projects (such as large, coastal subdivisions), but not others (such as State Significant Development), and offsetting policies that await legislative backing (for example, the NSW Biodiversity Offsets Policy for Major Projects (September 2014) ). It is hoped that the proposed new Biodiversity Conservation Act can integrate and simplify the current regulatory silos. The biodiversity legislation relies on the public service to implement the legislative schemes, and follows the convention of allocating all executive functions to the most senior public servant. Confusingly, however, this person is referred to in different ways in different enactments.

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'Director-General' is the top civil servant under the NPW Act, the NV Act, and the TSC Act, however the same person is referred to as the 'Chief Executive of the Office of Environment and Heritage' in the EPA Act (for example, in s 79B). Since 2014, the senior civil servant responsible for the EPA Act is known as the 'Secretary' (formerly the Director or Director-General) (s 13).

Threatened species legislation [12.380] The objects of the TSC Act include conserving biodiversity and promoting ecologically

sustainable development, and protecting the critical habitat of threatened species, populations and ecological communities (s 3 ). There are more than 1,000 animal and plant species listed as 'vulnerable', 'endangered' or 'critically endangered' (collectively 'threatened') in NSW under the TSCAct.

What can be listed? [12.390] The TSC Act establishes a process for classifying species, populations and ecological communities into the following categories:

• • •

species (s 10) (collectively referred to as "threatened species") -

vulnerable (s 7, Sch 2, Part 1) endangered (s 6, Sch 1, Part 1) critically endangered (s 6, Sch lA, Part 1) presumed extinct (s 6, Sch 1, Part 4)

populations (s 11) - endangered (s 6, Sch 1, Part 2) ecological communities (s 12) - vulnerable (s 7, Sch 2, Part 2) - endangered (s 6, Sch 1, Part 3) - critically endangered (s 6, Sch lA, Part 2)

A "population" means a group of the same plant or animal which occupies a particular area (s 4). An "ecological community" means an assemblage (or group) of species occupying a particular area (s 4 ). The detailed criteria for listing are found in Part 2 of the Threatened Species Conservation Regulation 2010.

Examples of endangered populations and ecological communities [12.400] Listed endangered populations include:

• • • • •

The Little Penguin colony at Manly Point (Sydney) Long-nosed Bandicoot colonies at North Head and at inner western Sydney Koala colonies at Hawks Nest/Tea Gardens and in the Pittwater area. Listed critically endangered ecological communities include: Blue Gum High Forest in the Sydney Basin Cumberland Plain Woodland in the Sydney Basin

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[12.410)

Kincumber Scribbly Gum Forest in the Sydney Basin.

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The listing process

As at April 2015, 13 critically endangered, 88 endangered and 4 vulnerable ecological communities have been listed. For the full lists of endangered populations and ecological communities, see TSC Act, Schedules 1, 1A and 2.

Notionally listed species [12.410] Some of the species and ecological communities listed under the TSC Act are also listed under the Commonwealth's EPBC Act (see [12.200]-[12.220]) (but not populations, as these cannot be listed under the EPBC Act), although it does not always follow that a NSW-listed species will also be threatened nationally. For example, the Southern-hairy nosed Wombat is listed as endangered in NSW, but in some parts of South Australia it is considered a nuisance. Species and communities marked with an asterisk in the relevant TSC Act Schedules indicate that they are threatened nationally (TSC Act, ss 6(5), 6(6); 7(3), 7(4)). As soon as a species or ecological community is listed at the national level, the NSW Scientific Committee must consider whether to list the species under the TSC Act if it is not already listed (s 9).

Fish and marine vegetation [12.420] The TSC Act does not apply to, and nor does it list, threatened fish or marine vegetation (TSC Act, s 4(1): definition "animal" and "plant"). Rather, threatened fish and marine vegetation are protected under Part 7A of the Fisheries Management Act 1994 whose provisions mirror those under the TSC Act. The Minister administering the Fisheries Management Act 1994 is the Minister for Primary Industries. There has been a problem, however, due to a lack of clarity in establishing which regime applies to those species which are semi-aquatic and semi-terrestrial (that is, move between land and water). For instance, the Emerald Dragonfly is listed as an endangered species under the Fisheries Management Act 1994, whereas the Giant Dragonfly is listed as an endangered species under the TSC Act. It is therefore necessary to check the relevant schedules under both Acts. The Ministers responsible for both Acts can jointly decide which regime should be applied in relation to a particular species (TSC Act, s SA).

Threatened species of fish and marine vegetation, and the protection of aquatic habitats, are dealt with in Chapter 19.

Scientific Committee [12.440] The TSC Act establishes the NSW Scientific Committee as an independent body which is not subject to Ministerial control or direction (TSC Act, Part 8, s 135). The Committee is responsible for determining which species, endangered populations, ecological communities, and key threatening processes are to be listed (s 128A). This is different to the Commonwealth system where listing decisions are made by the Commonwealth Environment Minister after receiving advice from the Commonwealth Scientific Committee. The NSW Scientific Committee must review the lists at least every two years to determine whether any changes are necessary (s 25A).

Nominations and public submissions [12.450] In NSW, the listing (and de-listing) process can be initiated by the Scientific Committee on its own initiative, or the initiative of the Environment Minister, the Natural Resources Commission (NRC), or any other person (s 18). The nomination must be in writing, addressed to the Chairperson of the Scientific Committee and must include any information required by the Regulations, the guidelines for making nominations, or requested by the Committee (ss 19, 20). After receiving a nomination, the Scientific Committee must make a preliminary determination as to whether the proposal should be supported or not supported (s 22). The Committee can reject a nomination if it is vexatious or insufficient information is given (s 21). If the Committee rejects a nomination, it must notify the Minister, the Director-General, the NRC and the person who made the nomination, and must give reasons for the rejection (s 21(4)).

Where the Committee makes a preliminary determination to support a nomination, it must notify the person who made the nomination, the Minister and the Director-General, and must publish notice of its preliminary determination in a State-wide newspaper inviting the public to make written submissions (s 22). The Committee must consider all public submissions (s 22(5)). It must make a final determination within six months of the close of submissions, although the Minister can extend this period to a maximum period of two years (s 23(2), (5)). The Committee must give reasons for its listing decisions (s 23(1)).

Final determinations

When is a species threatened? [12.430] The term "threatened" is a collective term which refers to the sliding scales of

"vulnerable", "endangered", "critically endangered" through to "presumed extinct". The TSC Act sets out the eligibility criteria for the listing and categorisation of species, populations and communities (ss 10 - 12). For example, a species may be listed as endangered if, in the opinion of the Scientific Committee, it is facing a very high risk of extinction in NSW in the near future, as determined in accordance with the criteria set out in the Regulations, and it is not eligible to be listed as critically endangered (s 10(3)). Unlike the Commonwealth system where the Commonwealth Environment Minister decides which species are listed, in NSW listings are made by a specialist Scientific Committee.

[12.460] As a result of amendments made in 2004, the listing process is not entirely independent of the political process. The amendments provide that before the Scientific Committee can make a final determination, the Committee must refer its proposed decision to the Environment Minister (s 23(4)). Whilst the Environment Minister does not have the power to veto a proposed listing, the Minister can direct the Committee to reconsider its proposed decision, but only for reasons of a scientific nature (ss 23, 23A). Having reconsidered the matter, the Committee is then free to proceed with its decision, and the Minister cannot refer the matter back again (s 23A(3)).

On making a final determination, the Committee must, as soon as practicable, notify the person who made the nomination (if any), notify the Minister, NRC and Director-General, and publish notice of the determination in a State-wide newspaper (s 24(1)). The Department must

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make copies of a final determination and the reasons for it available on its website or in response to a request from the public (free of charge) (s 24(3) ). Any challenge in the courts to the validity of a fina l determination must be brought within six months of the decision being published in the NSW Gazette (s 24(4)). Species (but not populations or communities) can be listed on a provisional basis as endangered or critically endangered on an emergency basis (s 28). Any person can nominate a species for provisional listing (s 30). The provisional listing lapses after 12 months unless the Scientific Committee has made a final determination regarding the species in the meantime (s 36).

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species, populations or ecological communities - those decisions consider only scientific matters. The Director-General must keep a publicly available register of the maps showing the areas which have been declared as critical habitat (s 55) . Part 7 A of the Fisheries Management Act 1994 contains mirror provisions for the identification and listing of critical habitat for fish and marine plants by the Director-General of the Fisheries Department.

Examples of critical habitat

Case study: Validity of listing by the Scientific Committee VAW {Kurri Kurri] Pty Ltd v Scientific Committee (2003) 58 NSWLR 631; 128 LGERA 419; [2003) NSWCA 297: affirming VAW [Kurri Kurri) Pty Ltd v Scientific Committee (2002] 122 LGERA 231; [2002] NSWLEC 60

[12.470] In the same month that Kurri Swamp Woodland was listed as an endangered ecological community, the appellant mining company challenged the validity of the determination. The judicial review application (see [2.360]) failed on multiple grounds (alleged inadequacy in the advertisement, conditional resolution, procedural insufficiencies, nomination insufficiencies and uncertainty). The Scientific Committee had defined the locality of the endangered ecological community as in the Sydney Basin Bioregion, namely "in the Kurri Kurri - Cessnock area in the lower Hunter Valley in the coal government area of Cessnock, but may occur elsewhere" . This was sufficiently certain, and there was no requirement that the definition of the community in the final determination be identical with the definition as originally nominated.

Critical habitat [12.480] Under the TSC Act, the Director-General of the Environment Department is responsible for identifying, where possible, habitat that is critical to the survival of listed endangered species, populations and ecological communities, or of listed critically endangered species or ecological communities (s 38). The Director-General must then prepare a draft recommendation to the Minister that an area of land be declared as critical habitat, but in doing so must consider the likely social and environmental consequences of making such a recommendation, thus leaving the matter open to the exercise of discretion (s 40). Before making a recommendation, the Director-General must consult with the Scientific Committee (s 39). Affected landholders (both private and public) and the public must be notified and given an opportunity to comment (s 41 ).

The Environment Minister is responsible for considering whether to declare critical habitat (s 47), and exercises a wide discretion in deciding whether to do so. The Minister must consider the likely impacts on any landowners, any public submissions, the advice of the Scientific Committee, and the principles of ecologically sustainable development (s 44). The Minister must also consider the likely social and economic consequences of making a declaration (s 44(1)(a)), which, by comparison, is not a factor which the Scientific Committee must consider when listing

[12.490] In practice, critical habitat has rarely been declared. As at April 2015, the following

four areas had been declared as critical habitat:

• Little penguin population habitat in Sydney's North Harbour • Wollemi Pine areas • Gould's Petrel areas on Cabbage Tree Island, off the coast of Port Stephens, and • Mitchell's Rainforest Snail in Stotts Island Nature Reserve. [12.500] It is an offence to do anything to cause or permit damage to critical habitat without authorisation, such as a development consent or licence (National Parks and Wildlife Act 1974,

s 118C). Declaration of an area as critical habitat does not guarantee that it will be protected. Rather, the listing of an area as critical habitat triggers the following procedural protection:

• • • •

All public authorities must also "have regard to" the existence of any critical habitat in relation to the use of land which they own or control (TSC Act, s 50). Before making an environmental planning instrument (SEPP or LEP) which adversely affects critical habitat, the relevant authority must consult with the Director-General (EPA Act, s 34A(2))

If a development is on land containing critical habitat, a species impact statement must be prepared (EPA Act, ss 5A(2)(e), 78A(8)(b), 112(1B)), planning authorities must consider the impacts (EPA Act, ss SB, ll0C, 111(4)(a)) and the concurrence of the Director-General is required (ss 78B(3), 112C(l): see [12.1130]). The development cannot be treated as exempt or complying development (EPA Act, s 76(3)(a), State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, cl l.17A(l)(b): see [5 .320]).

There are also special provisions under the Local Government Act 1993 which require a plan of management governing community land containing critical habitat areas to categorise the land as a "natural area" (Local Government Act 1993, s 36A(3)).

Recovery plans [12.510] Recovery plans represent one of the strategic mechanisms under the TSC Act for responding to threats to the survival of threatened species, populations, ecological communities and their habitats. The object of a recovery plan is to promote the recovery of the species,

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population or ecological community to a position where it is viable again. They are prepared by the Director-General and approved by the Minister.

Similar mechanisms for recovery plans for fish and marine vegetation are found in Part 7 A of the FM Act.

The Director-General exercises a discretion as to whether a recovery plan should be prepared for each endangered or critically endangered species, population or community, or for a vulnerable species or ecological community, and in doing so is guided by the Director-General's Priorities Action Statement (TSC Act, ss 56, 58 and Pt 5A).

Key threatening processes

Making a recovery plan [12.520] A recovery plan must cover a range of things which include (TSC Act, s 59):

• identifying any critical habitat for the species, population or community • identifying any processes threatening the species, population or community • stating what must be done to ensure the recovery of the species, population or community, and • identifying the persons or public authorities who are responsible for implementing the plan. Draft recovery plans must be placed on public exhibition and public submissions invited (s 61). The Director-General then gives the draft recovery plan to the Minister together with a summary of any advice from the Scientific Committee and of any public submissions received (s 63 ). The Minister can then either approve the draft recovery plan, refuse approval, or refer it back to the Director-General for further consideration (s 65). If the Minister changes the draft recovery plan, the Minister must state the reasons for departing from the draft plan (s 66). Recovery plans are available on the Department's website.

Implications of recovery plans [12.530] Ministers and public authorities must implement the actions in a recovery plan for which they are responsible and must not make decisions which are inconsistent with the provisions of a recovery plan (s 69). However these provisions are undermined by the fact that they do not exclude a Minister or public authority (including a local council) from exercising a statutory discretion in a manner which is inconsistent with a recovery plan, although they must consider the plan (s 69(2)). Hence, in Western Sydney Conservation Alliance v Penrith City Council [2011] NSWLEC 244 MooreAJ held that section 69 does not apply to the determination by a council of whether to consent to a development application (at [82]). Where a public authority proposes to depart from a recovery plan, it must first notify the Director-General, or if it is the Director-General, he or she must first notify the Minister (s 71). On receiving notice from a public authority of a proposed departure from a plan, the Director-General must decide whether or not it is acceptable, or whether it is likely to jeopardise the plan's effective implementation. If the departure seems unacceptable, the Director-General must consult with the authority to modify the proposal (s 72). If the matter cannot be resolved, it must be referred to the Premier for determination (s 73).

In considering whether a proposed development under Part 4 (see [12.1070]) or activity under Part 5 (see [12.1150]) of the EPA Act is likely to significantly affect a threatened species, population or ecological community, thus requiring a species impact statement, the consistency of that action with a recovery plan must be considered (EPA Act, s 5A(2)(f)).

[12.540] The TSC Act also allows for the identification and listing of key threatening processes. These are processes which threaten, or could threaten, the survival or evolutionary development of species, populations or ecological communities (s 4). Examples of the 35 key threatening processes listed as at May 2015 are: bush rock removal, predation by feral cats, the clearing of native vegetation, the removal of dead wood and trees, anthropogenic (human-induced) climate change and (added in 2013) aggressive exclusion of birds from woodland by abundant Noisy Miners (ss 8, 13, Sch 3). The Scientific Committee decides whether a threatening process should be listed. Any person can nominate a key threatening process (s 19(4)). The Fisheries Management Act 1994 contains mirror provisions for fish and marine vegetation.

Threat abatement plans [12.550] Like recovery plans, threat abatement plans represent another potential strategic mechanism under the TSC Act for addressing, in a systematic way, the processes which cause species to become threatened. However as at May 2015 only three threat abatement plans have been finalised (dealing with bitou bush and boneseed, predation by the red fox, and predation by the plague minnow).

Licensing Section 91 licences [12.560] Part 6 of the TSC Act allows a person to obtain a licence to carry out an activity which will harm threatened species, populations or ecological communities, or their habitat, where such an action would otherwise constitute an offence under the Act (see Offences below). However, in practice, licences are not widely used as most activities affecting threatened species are carried out under the authority of a development consent or approval issued under Parts 4, 5 or 5.1 of the EPA Act (see Chapters 5 and 6). (For example, in 2014 only 19 licences were issued in NSW, so the vast majority of impacts on biodiversity from new subdivisions and urban infill expansion were dealt with under the development application process.) In order to avoid committing an offence of harming or picking a threatened species or damaging threatened species' habitat, a person need hold a licence or a development consent or approval under the EPA Act (or be able to point to some other defence: see Defences at [12.650] below). It is also a defence if the person carried out the activity in accordance with a property management plan which has been approved by the Director-General (s 113B).

Species impact statements [12.570] Licences to harm or pick threatened species, populations or ecological communities, or to damage their habitat, are issued under the TSC Act by the Director-General (s 91(1)). Upon

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receiving an application for a licence, the Director-General must decide whether the proposed activity is likely to significantly affect threatened species, populations or ecological communities, or their habitats (s 94(1)). The Director-General does this by considering the seven-part test of significance set out ins 94(3) of the TSCAct (see the text box at [12.1090] below), together with the threatened species assessment guidelines (s 94A) (http://www.environment.nsw.gov.au/ resources/threatenedspecies/tsaguide07393.pdf). If the Director-General concludes that there will be a significant impact, the applicant must prepare a species impact statement (SIS) (s 95(1)). An SIS is mandatory if the action will take place on land that is critical habitat (s 92(2)). Where an SIS is required, the SIS must be placed on public exhibition and public submissions must be invited (s 96(5)). An SIS will also be required where a person seeks to rely on a development consent or Part 5 approval, rather than on a licence, and the activity is likely to have a significant effect on threatened species, populations or ecological communities (see [12.1070] and [12.1150]).

If the Director-General decides that there will be no significant impact, a licence under the TSC Act is not required and the Director-General can issue a certificate to that effect (s 95(2)).

Considerations [12.580] In deciding whether to grant or refuse a licence, the Director-General must take into

account various matters listed in section 97 of the TSC Act. An applicant for a licence or a person who has made written submissions about an application (within the required time period) has 28 days to appeal to the Land and Environment Court regarding the Director-General's decision concerning the licence (ss 106, 107). A licence can be cancelled by the Director-General, who must notify the licence holder and give reasons (s 105). The Director-General must keep a public register of all licence applications and licences (ss 96, 104).

Other types of licence (12.590] As an alternative to a section 91 licence under the TSC Act, the Director-General can

grant:

• •

a general licence under section 120 of the National Parks and Wildlife Act 1974 (NPW Act) to harm, pick or damage habitat of threatened species if it is necessary for the welfare of an animal or if there is a threat to life or property (TSC Act, s 91(2)), or a scientific licence which authorises a person to harm or pick threatened species of animals or plants, or to damage threatened species' habitat (NPW Act, s 132C). These licences are issued for scientific, educational or conservation purposes.

Licences issued under the NPW Act do not require the preparation of a SIS, even if the activity is likely to have a significant impact on threatened species.

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Offences Harming or picking threatened species [12.600] Offences relating to the harming of threatened species, populations or ecological communities (animals) and the picking of threatened species, populations and ecological communities (plants) are not found in the TSC Act, but in Part SA of the NPW Act.

It is an offence to harm an animal or pick a plant that belongs to a threatened species, population or ecological community (NPW Act, s 118A). "Harm" means "hunt, shoot, poison, net, snare, spear, pursue, capture, trap, injure or kill" (s 5), but does not include harm by changing the habitat of an animal. This is a separate offence (see below). "Pick" a plant includes "gather, pluck, cut, pull up, destroy, poison, take, dig up, crush, trample, remove or injure" (s 5(1)). The Land and Environment Court has held that this is a strict liability offence (Plath v Rawson (2009) 170 LGERA 253 at 272) (see [12.610]). In Chief Executive, Office of Environment and Heritage v Kyluk Pty Ltd (No 4) [2014] NSWLEC 74, the defendant was fined $80,000 for clearing 5 hectares of endangered ecological community (EEC) in breach of s 118A, and ordered to undertake restoration works for a period of 15 years. The maximum penalty for harming an animal or picking a plant which is presumed extinct, critically endangered or endangered is 2,000 penalty units plus 100 penalty units for each plant or animal harmed, and two years' imprisonment (s 118A). For any vulnerable species, the maximum penalty is 500 penalty units plus 50 penalty units for each plant or animal harmed, and imprisonment for 1 year (s 118A(1), (2)). The Court has held that where offences are committed deliberately, or where there is a failure to heed advice or warnings from a regulatory authority not to harm certain animals or pick certain plants, the penalty is likely to be increased (Plath v Rawson (2009) 170 LGERA 253 at 272). The Court has also required land rehabilitation as a result of breaches of s 118A (Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118 (principal judgment); Director-General, Department of Environment, Climate Change and Water v Venn (No 2) [2011] NSWLEC 232 (consequential orders); Director-General, Department of Environment, Climate Change and Water v Venn (No 3) [2012] NSWLEC 31 (consequential orders) (ss 118A, 156A).

It is also an offence to buy, sell or possess any animal or plant that is part of a threatened species or endangered population (s 118B).

Case study: Farmhand fined $135,000 for picking threatened plant species Plath v Rowson [2009) 170 LGERA 253

[12.610] Mr Rawson had been a farmhand for 44 years, carrying out farm maintenance work such as fencing, spraying weeds and clearing vegetation. In late 2005 he was engaged as a contractor by a landowner to clear vegetation from the land to prepare it for grazing. Over a period of nine months, Mr Rawson cleared about 170 hectares, mainly using a chainsaw and poison. He cleared around 35,000 to 40,000 camphor laurels, privets and other weeds, as well as nearly 1,200 species

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of rainforest plants which were listed as either endangered or vulnerable under the TSC Act. Mr Rawson did not have a licence or development consent which authorised the picking of threatened plants.

Mr Rawson was charged with seven offences against section 118A(2) of the NPW Act relating to "picking" seven different threatened species of plant, "pick" being defined very broadly in the Act to include cut, pull up, destroy and poison. Although Mr Rawson pleaded guilty to each of the offences, there was a dispute over some of the facts of the offences, such as how many plants were picked, and whether Mr Rawson knew the plants were or might be threatened, which was heard by the Court. Mr Rawson was convicted of the offences. Because s 118A(2) is a strict liability offence (see [2.620]), he was convicted even though the Court found that it was not proved beyond a reasonable doubt that he knew, before he cut and poisoned each plant, that the plants were threatened. Mr Rawson was fined a total of $135,000 for all seven offences, and was ordered to pay the prosecutor's costs. He was also ordered to perform up to 130 hours of community service. The penalty was at the higher end because his conduct had caused a high degree of environmental harm due to the scale of clearing and the fact that some plants had represented the largest remaining population of those species.

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entitled to conclude that the person knew it was such habitat even in the absence of direct evidence. The NPW Act expressly provides that where a person required, but did not obtain, development consent under Part 4 of the EPA Act or an approval to which Part 5 of that Act applies, before carrying out the act which damaged the habitat (eg clearing land for urban development), or if the person failed to comply with a consent or approval, then the Court is entitled to conclude that the person knew that the habitat contained threatened species habitat without the need for the prosecution to prove it (s 118D(4)). The maximum penalty for damaging habitat is 1,000 penalty units and imprisonment for one year (s 118D(l)). It is a more serious offence to damage critical habitat, for which the maximum penalty is 2,000 penalty units and two years' imprisonment (s 118C(l)). If a map showing the critical habitat was published in the Gazette before the offence was committed, the prosecution does not have to prove that the person knew that the habitat was declared as critical habitat (s 118C(2)).

Case study: Environmental consulting firm and its director convicted for clearing koala habitat Plath v Fish [2010] NSWLEC 144

[12.640] An environmental consulting firm, Orogen Pty Ltd and its director,

Anthony Fish, advised a developer in relation to some land clearing for an industrial subdivision at Taylors Beach, near Port Stephens. However they failed to advise the developer that clearing koala habitat required development consent from the council, and that without such consent, an offence would be committed.

Case study: Illegally cleared shale/sandstone transitional forest

The NSW Department of Environment and Climate Change prosecuted the company and its director under section 118D(l) of the NPW Act with causing damage to the habitat of a threatened species, namely koala habitat, knowing it was habitat of that kind. Both pleaded guilty to the offence.

Chief Executive, Office of Environment and Heritage v Kyluk Pty Ltd [No 4) [2014] NSWLEC74

[12.620] The owner of a 40 hectare beef-grazing property near Campbelltown cleared trees and vegetation using a backhoe. An anonymous citizen tipped off the Office of Environment and Heritage. The 5 hectare cleared area included a shale/sandstone transitional forest, an endangered ecological community, which would take 5-20 years to be restored. The defendant was found guilty of the strict liability offence under s 118A(2), ordered to pay $80,000 towards a bush regeneration project being undertaken by the local council, ordered to carry out specified restoration works at the property over a period of 15 years, and to pay the prosecutor's costs in relation to three of the four proceedings before the Land and Environment Court.

The Court fined the environmental consulting company $10,000 and its director, Anthony Fish, $5,000. The Court also made an environmental service order under NPW Act, s 205(1)(c), requiring both offenders to undertake koala habitat mapping for Port Stephens Council. The defendants were also ordered to publish details of the offences in the Sydney Morning Herald and in the newsletter for the Ecological Consultants Association of NSW, and were ordered to pay the Department's legal costs of $105,000.

Defences Damaging habitat [12.630] The NPW Act provides a separate offence for damaging the habitat of threatened species. It is an offence to damage, or permit the damage of the habitat of a threatened species, endangered population or an endangered ecological community if the person knows that the habitat concerned is habitat of that kind (NPW Act, s 118D(l)). In some cases, the Court is

[12.650] There is a wide range of defences which excuse the offences of harming or picking threatened species, populations or ecological communities, or damaging their habitats.

•

The three main defences are: that the act was authorised to be done under a licence granted under the TSC Act or the NPW Act (ss 118A(3), 118C(5)(a), 118D(2)(a): see Licensing at [12.560] above)

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that the act was authorised by a property vegetation plan (PVP: see (12.1480]) approved under the Native Vegetation Act 2003 (ss 118A(3)(a2), 118D(2)(a2)), (except where critical habitat is involved)

The Director-General must keep a public register with the details of all criminal convictions and civil proceedings under the NPW Act and TSC Act (NPW Act, s 188F(2)).

development consent or approval given under the former Part 3A, or Parts 4, 5 or 5.1 of the EPA Act (ss 118A(3)(b)(iv), 118C(5)(b)(iv), 118D(2)(b)(iv)) (ss 118A(3)(b), 118C(5)(b), 118D(2)(b)) (see Chapters 5 and 6).

Stop work orders

• that the act was essential for the carrying out of development in accordance with a

• •

In addition, there are many other defences including (NPW Act, ss 118(3), 118C(5)): that the clearing was for a routine agricultural management activity. This is widely defined under section 118G(2) and includes things such as the construction, operation and maintenance of farm dams, permanent fences, buildings, windmills, bores and stockyards (but not in areas zoned rural-residential) that the activity was a routine farming practice activity (s 118G(l)(b)). This is not defined except to the extent that activities done for the purpose of preventing damage to crops or farm infrastructure, or preventing injury to the health of livestock are identified as not being routine farming practices (National Parks and Wildlife Regulations 2009, cl 107)

• that the activity was for the control of noxious weeds under the Noxious Weeds Act 1993, or • that the activity was part of traditional Aboriginal cultural activities (NPW Act, s 118G). Enforcement Civil and criminal proceedings

[12.660] Proceedings for criminal offences under the NPW Act and TSC Act can be heard in a

Local Court although more serious offences tend to be heard in the Land and Environment Court (Class 5) (NPW Act, ss 189, 191). Proceedings can only be brought by the Environment Department, and must be commenced within two years of the offence being committed or within two years of the matter first coming to the attention of an authorised officer (NPW Act, ss 190 , 191; TSC Act, s 153).

[12.670] The Director-General can issue a stop work order under the TSC Act where an activity

or proposed activity is considered likely to result in (s 114):

• harm to a threatened species, population or ecological community (animals) • picking a threatened species, population or ecological community (plants) • damage to critical habitat, or • damage to the habitat of threatened species, populations or ecological communities. A stop work order can extend to activities on, or in the vicinity of, land containing critical habitat or the habitat of threatened species, populations or ecological communities. The order takes effect from the date on which a copy is placed in a conspicuous place in the area in question, or when the person performing or about to perform the action is notified that the order has been made, whichever is the sooner (s 114(2)). An order lasts for 40 days and can be extended indefinitely for periods of up to 40 days (s 117). A stop work order cannot be used to stop activities which have already been authorised under a licence, development consent, Part 5 activity or PVP (s 114(3), (4)). Nor can an order be issued to stop approved State significant infrastructure (TSC Act, s 114(4)(a2)) or critical State significant infrastructure (EPA Act, s 115ZG(3)(b)). The maximum penalty for breaching a stop work order is 10,000 penalty units for a corporation or 1,000 penalty units for an individual, plus further daily penalties in the case of continuing offences (s 114(6)). The Director-General does not need to notify anyone before making a stop work order (s 115). A person against whom an order is made can appeal to the Minister (s 116). Once a stop work order is issued, the Director-General should consult with the person carrying out the activity to determine whether the activity can be modified, and if appropriate, should invite the person to apply for a licence (s 118). If satisfactory arrangements cannot be made to permanently halt or modify the activity so as to protect the threatened species, population, ecological community or habitat, the Director-General must recommend that the Minister make an interim protection order under Part 6A of the NPW Act (s 119).

The Court has a broad range of sentencing options, including: (NPW Act, ss 201, 205; TSC Act ss 141!, 141N):

• a fine or community service order • an order to restore any damage to habitat • an order that the offender purchase and retire a certain amount of biodiversity credits (see [12.1200]-[12.1260]) • an order that the offender publicise the offence • an order that the offender carry out an environmental project.

Apart from criminal proceedings, however, anyone can bring civil proceedings in the Land and Environment Court (Class 4) for an order to remedy or restrain a breach of the NPW Act or TSC Act (NPW Act, s 193; TSCAct, s 141F).

Interim protection orders [12.680] Interim protection orders provide longer protection for threatened species than stop work orders. The Minister can issue an interim protection order over land containing threatened species, populations or ecological communities, or their habitat, upon receiving a recommendation from the Director-General that one is required (NPW Act, ss 91A, 91B). The Minister is not required to notify anybody beforehand (s 91C). The maximum duration of an order is two years (s 91D). An interim protection order cannot be used to prevent or interfere with the carrying out of approved critical State significant infrastructure (EPAAct, s 115ZG(3)(a)). An owner or occupier of land covered by an order can appeal to the Land and Environment Court against the order and must do so within 60 days of being notified of the order (s 91H,

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Land and Environment Court Rules, rule 7.l(l)(a)). It is an offence to contravene an order or cause or permit another person to contravene it (s 91G). The maximum penalty for a corporation is 10,000 penalty units with a daily penalty of 1,000 penalty units for each day the offence continues, or for an individual, 1,000 penalty units plus a daily penalty of 100 penalty units. The Director-General must keep a public register of interim protection orders (s 911).

defined as all animals except those which are listed as "unprotected fauna" in Schedule 11 which includes bears, lions, dogs, cloven hoofed animals, horses, donkeys, hares and rabbits (s 5). If a particular animal becomes listed as a threatened species it ceases to be "protected fauna" and it is protected under the TSC Act and EPA Act, which contain stronger regulatory provisions (see [12.380] and [12.1070] respectively).

Remediation directions

Offence to harm native animals

[12.690] Under amendments to the National Parks and Wildlife Act 1974 which came into force on 2 July 2010, the Director-General can issue a remediation direction to a person to restore or remediate land containing a threatened species of plant or animal if the damage was caused by an offence under the NPW Act (s 91K). A remediation direction can be given to a current or former landholder, or to any other person that the Director-General reasonably believes is responsible for the damage or harm (s 91M). A person can appeal against a direction to the Land and Environment Court within 30 days of receiving it (s 91 T). A remediation direction cannot be given to prevent or interfere with the carrying out of approved critical State significant infrastructure (EPAAct, s 115ZG(3)(c)).

[12.730] It is an offence to harm protected fauna (native animals), including game birds, without approval (NPW Act, s 98) . However, changing the habitat of native animals does not constitute "harm" under the Act (NPW Act, s 5).

It is also an offence to use a substance (eg poison), an animal (eg a hunting dog), a gun, net or trap, for the purpose of harming native animals (NPW Act, s 98(2)(6)). The maximum penalty is 100 penalty units (plus 10 penalty units for each animal harmed) and six months' imprisonment (NPW Act, s 98(2)). It is also an offence to buy, sell or keep native animals without a fauna licence, for which the maximum penalty is 100 penalty units and six months ' imprisonment (NPW Act, s 101).

Joint management agreements [12.700] Where a public authority (eg a local council) is carrying out an actlVlty that is jeopardising the survival of a threatened species, population or ecological community, the Director-General can enter into a joint management agreement with the public authority under the Threatened Species Conservation Act 1995 to manage and control the impacts (s 121). Before a joint management agreement can be entered into, the Scientific Committee must review the draft agreement and provide comments to the Director-General (s 122). The draft agreement must also be placed on public exhibition and public submissions invited (s 124).

Protected native animals and plants [12.710] All native animals and many species of native plants are protected in NSW under Part 8A of the National Parks and Wildlife Act 1974. The Director-General of the Environment Department is responsible for protecting native plants and animals in NSW (s 92); in practice the NSW National Parks and Wildlife Service. The general approach to protecting plants and animals is that it is an offence to harm them unless the person holds either a licence, or development consent or other form of approval, to carry out the activity.

Native animals Which native animals are protected?

Defences [12.740] There is a broad range of defences which a person can seek to rely upon if they are charged with the offence of harming protected animals (NPW Act, ss 98(3) - (6)). It is a defence, for example, to show that the activity:

• was essential for the carrying out of development in accordance with a development consent or approval under the EPA Act (see Chapters 5 and 6) • was licensed under the NPW Act or TSC Act (see [12.560] above) • was done for the purpose of controlling noxious animals under the Rural Lands Protection Act 1998 (see [11.250]) • was a traditional Aboriginal cultural activity (which excludes commercial activities) • was reasonably necessary to remove an imminent risk of personal injury or damage to property • was done for the purpose of capturing and returning an animal which had escaped from another person's lawful possession (NPW Act, s 100(1)) • was done for a routine agricultural management activity (s 98(6) (see [12.1430] above). • that the activity was done as a routine farming practice activity (ss 98(6), 118G(l)(b)) (see [12.650] above).

Rescuing native animals and keeping native animals as pets

[12.720] All native fauna (animals) are protected in NSW under the NPW Act, and these are

[12.750] It is an offence to buy, sell or keep native animals without a fauna licence (NPW Act,

called "protected fauna". This includes mammals, birds, reptiles and amphibians. The NPW Act does not have a list of the native animals which are protected. Rather, "protected fauna" is

s 101). This means that most native Australian animals cannot be kept as pets unless the person has a general licence from the Environment Department (s 120).

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Animals and birds should not be removed from their natural habitat without a licence. The National Parks and Wildlife Service issues licences to specialist wildlife carers and rescue groups to hold and rehabilitate native wildlife that has been injured or orphaned. These people are trained to rescue and handle native wildlife until such time as care is no longer required and the animal can be returned safely back into the wild. A person who finds an injured, sick or orphaned native animal must not keep the animal as a pet. They must notify the Director-General of the Department in writing within three days that they have the animal (NPW Act, s 101(5)(c), National Parks and Wildlife Regulations 2009, cl 68) and should contact one of the wildlife rescue groups listed on the Department's website.

Directions from Notional Porks and Wildlife Service officers [12.760] A National Parks and Wildlife Service officer can issue a direction to somebody to stop feeding native animals, or to stop carrying out an activity which might be causing distress to native animals (NPW Act, s 99A). A direction has effect for up to 28 days and can be extended. A direction cannot be given if the activity is already licensed or approved (NPW Act, s 99 A( 4 ), (6) ). A person dissatisfied with a direction can appeal to the Minister, who can modify or rescind it, or reissue it for up to two years (NPW Act, ss 99A(5A) - (5E)). The maximum penalty for failing to comply with a direction is 25 penalty units plus 2.5 penalty units for each day the offence continues. Even if a person holds a licence, a National Parks and Wildlife Service officer can still issue a direction to a person regarding the general welfare of a native animal (food, drink, shelter) which is kept in confinement (NPW Act, s 102).

Licences to kill, harm, keep native animals [12.770] Activities affecting native animals all require a licence. In practice, commercial hunters and scientists whose work involves buying, selling or keeping native animals (dead or alive) mostly rely on these (NPW Act, s 101). The following types of licence are available:

• general licence (s 120) • occupier's licence (s 121) • commercial fauna harvester's licence (eg for shooting kangaroos) (s 123) • emu licence (s 125A) • scientific licence (s 132C) • threatened species licence under Part 6 of the TSC Act.

A dissatisfied applicant for a licence can appeal to the Environment Minister, whose decision cannot be appealed on the merits to the Land and Environment Court (s 135). There is no public register of licences to harm native animals, although there is a public register of licences to harm threatened species (see [12.590]).

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Case study: Rao shooter fined $12,000 (June 201 OJ [12.780] Mr John Edward Fitzmaurice was a kangaroo shooter from Deniliquin, in NSW. An officer from the NSW Department of Environment, Climate Change and Water (Department) inspected Mr Fitzmaurice's chiller - where kangaroo carcases were stored - and found that it contained dead kangaroos with identification tags for a different species. Mr Fitzmaurice had killed 50 Eastern Grey Kangaroos but claimed they were Red Kangaroos. This occurred when the commercial harvest of Eastern Grey Kangaroos had been suspended in the area to ensure that it remained at sustainable levels. At the time, only Red Kangaroos could be shot in the area.

The Department charged Mr Fitzmaurice with six offences under the National Parks and Wildlife Act 1974, including harming protected fauna and contravening a licence condition. Mr Fitzmaurice pleaded guilty and in June 2010 was fined $12,000 in the Deniliquin Local Court. (Source: Media release: 23 June 2010, NSW Department of Environment, Climate Change and Water)

Stop work orders [12.790] The Director-General of the Environment Department can make a stop work order directing activities to cease if the Director-General is of the opinion that an action is being, or is about to be, carried out that is likely to significantly affect protected fauna or native plants (NPW Act, s 91AA). However, a stop work order cannot be used if the activity is authorised under a licence or is essential for the carrying out of development under a development consent or approval under the EPA Act (NPW Act, ss 91AA(3), (4); EPA Act, s 115ZG(3)(b): see Chapters 5 and 6). Stop work orders can last for up to 40 days, but can be extended for additional 40 day periods (s 91DD). The Director-General does not need to notify anybody before making a stop work order (s 91BB). A person against whom an order is made can appeal against the order to the Minister (s 91CC). Where longer term protection is required for native fauna or native plants (up to two years), the Minister can make an interim protection order (see [12.680] above).

Native plants [12.800] Native plants are protected under Part 8 of the NPW Act. The main aim of the legislation is to protect these plants from commercial exploitation, which otherwise might result in them become threatened in the wild.

Which native plants ore protected? [12.810] Schedule 13 of the NPW Act contains a list of the native plants which are protected. The list includes more than 100 plants, many of which are commonly used for ornamental purposes in the cut-flower trade, such as Sturt's Desert Pea, Christmas Bells, maiden hair ferns, and the waratah. It also covers bird's-nest ferns, tree ferns, orchids and grass trees. As with animals, if a particular plant becomes listed as a threatened species it ceases to be a "protected native plant" and it is protected instead under the TSC Act and EPA Act, which contains stronger regulatory provisions.

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Native vegetation is also protected in rural areas under the Native Vegetation Act 2003 (see [12.1370]) and in urban areas under the EPA Act (see [12.980]).

Offences [12.820] It is an offence to pick or possess a protected native plant (NPW Act, s 117). "Pick" is

defined broadly and includes "gather, pluck, cut, pull up, destroy, poison, take, dig up, crush, trample, remove or injure the plant or any part of the plant" (NPW Act, s 5(1)). If a person is found with a protected native plant in their possession that will be taken as prima facie evidence that they picked the plant, and the onus of proof is on the person to demonstrate that they have a defence (NPW Act, s 117 (4)). The maximum penalty is 100 penalty units and an additional penalty of 10 penalty units for each plant affected and six months' imprisonment. However, there is a major qualification to the legislation. It is not an offence to pick protected native plants growing on private land (including Crown leasehold land: s 113) provided that the landholder's consent has been obtained (s 117(3 )(a)).

It is, however, an offence to sell a protected native plant without a licence, wherever they have been grown (s 118(1)) (see Licences at [12.840] below). This does not apply if the person can prove that both they and the person who received the plant cultivate those types of native plants as a hobby, and the plant was not exchanged for commercial purposes (s 118(3)).

Defences [12.830] Defences to the offence of picking or possessing a protected native plant include that:

• the person had a licence to pick protected native plants (NPW Act, s 131 ), a scientific licence

(NPW Act, s 132C), a licence for threatened species under the TSC Act, or a licence under the Forestry Act 1916 (see [12.560] below on Licences)

• the protected native plant was cultivated by the person as a hobby and was not done for commercial purposes (s 117 (3 )( d)) • the plant was bought from a person who was licensed to grow and sell it (s ll 7(3)(e)).

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the NPW Act and Part 6, Division 3 of the National Parks and Wildlife Regulation 2009. Cetaceans found between three and 200 nautical miles of the coastline (and in other offshore areas within the Australian Whale Sanctuary) are protected under the EPBC Act (see [12.320] above). A person must not interfere with (harass, chase, herd or tag) marine mammals or approach them any closer than the prescribed distance without a licence (see licensing above) (NPW Act, s 112G(l)). The penalty for this offence is 1,000 penalty units or two years' imprisonment, or both. The prescribed distances are listed in the National Parks and Wildlife Regulation 2009 and vary depending on the species concerned and whether the person is on foot, swimming, on a vessel or in an aircraft (ell 61 - 64). It is aiso an offence to feed or attempt to feed a marine mammal (cl 65). The Minister can make specific orders preventing people from approaching special interest marine mammals, such as colour-variant mammals, females with calves, and calves which have been separated from a mother or group (cl 67).

LEPs and SEPPs [12.860] The development of private land represents one of the most serious threats to

biodiversity. In NSW, development is regulated under the Environmental Planning and Assessment Act 1979 (EPA Act), which incorporates a range of processes which are intended to ensure that the impacts on biodiversity and threatened species are considered in the planning and development process (see Chapters 3 and 5). The objects of the EPA Act reflect this by recognising that one of the purposes of the Act is to "encourage ... the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats" (EPA Act, s 5(a)(vi)). Environmental planning instruments (State Environmental Planning Policies (SEPPs) and Local Environmental Plans (LEPs)) are made under the EPA Act. The EPA Act provides that an environmental planning instrument (EPI) may make provision for (EPA Act, s 26): (a)

protecting, improving or utilising, to the best advantage, the environment

Licences to pick native plants

(e)

protecting or preserving trees or vegetation

[12.840] The Director-General can issue the following types of licence to pick native plants:

(el)

protecting and conserving native animals and plants, including threatened species, populations and ecological communities, and their habitats.

• • •

licence to pick certain plants (NPW Act, s 131) licence to grow native plants on private property for the purpose of sale (NPW Act, s 132)

Accordingly, it is clear that EPis can be used for conservation purposes.

licence to pick protected native plants for scientific, educational or conservation purposes (NPW Act, s 132) (called a "scientific licence") .

There is no public register of licences to pick native plants. A person whose application for a licence is refused, or who is dissatisfied with any condition, can appeal to the Environment Minister (NPW Act, s 135).

Marine mammals [12.850] Marine mammals (whales, dolphins, porpoises, seals, sealions and dugongs) found

within three nautical miles of the NSW coast (territorial waters) are protected under Part 7 A of

SEPPs [12.870] There are a range of SEPPs in NSW which protect particular elements of biodiversity.

These include:

• SEPP 14 - Coastal wetlands which requires development consent to be obtained for the clearing, draining or filling of mapped coastal wetlands (see Chapter 14) • SEPP 26 - Littoral rainforests which requires development consent to be obtained for clearing, disturbing or building upon areas of mapped littoral (coastal) rainforest (see Chapter 14)

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Protection of wetlands in NSW [12.880] There is no specific legislation protecting wetlands in NSW. Rather, protection 1s

spread across a number of Acts, including:

• •

The clearing of plants occurring in wetlands in rural areas, which is regulated under the Native Vegetation Act 2003 (NV Act, s 6(d)) (see [12.1370] below) Some types of wetland are listed as endangered ecological communities under the Threatened Species Conservation Act 1995. This includes freshwater wetlands on coastal floodplains, montane peatland and swamps, Sydney freshwater wetlands and upland wetlands, and swamp sclerophyll forest

• The Fisheries Management Act 1994 regulates impacts on wetlands which provide key fish

habitat, such as seagrasses, mangroves and salt marsh. These can be listed in its schedules as threatened marine vegetation (Schs 4, 4A and 5). At present, the only marine vegetation which is listed are the populations of seagrass in Port Hacking, Botany Bay, Sydney Harbour, Pittwater, Brisbane Waters and Lake Macquarie (see Chapter 19).

• Wetlands species and habitat can also be affected by planning and assessment decisions

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Most of the areas to which SEPP 19 applies are under the control of local councils. If it is the council which is proposing to carry out a development, it is in the invidious position of having to decide whether to grant development consent to itself under the SEPP. Development proposals must be advertised. A proposal in a SEPP 19 area which is likely to have a significant impact on a threatened species, population or ecological community, or their habitats, could trigger the need for a species impact statement (see [12.1080]).

•

A council must not grant development consent unless: it has made an assessment of the need to protect and preserve the bushland, having regard to the aims of the Policy (eg the need to preserve remnant bushland, and to provide wildlife corridors with other nearby bushland)

• it is satisfied that the disturbance of the bushland is essential for a purpose in the public interest and that there is no reasonable alternative to disturbing it • it is satisfied that as little bushland as possible will be disturbed and, where the disturbance

is done to make way for construction work, the bushland will be reinstated as far as is possible.

under the EPA Act, and some wetlands enjoy additional protection under SEPP 14 - Coastal wetlands (see [14.370]).

In this way, SEPP 19 effectively creates a presumption in favour of retaining existing bushland until a convincing case has been made for disturbing it.

also provides some protection to wetlands which have been listed under the Ramsar Convention (see [4.630]). There are 12 of these in NSW, including Towra Point in Botany Bay, the Macquarie Marshes and the Gwydir wetlands, some of which are on private land.

SEPP 19 overrides the provisions of many LEPs under which development consent is not required for gardening or landscaping. Previously, these would have fallen under the environmental assessment provisions of Part 5 of the EPA Act (see Chapter 6). SEPP 19 brings them under Part 4 of the EPA Act.

The NSW Wetlands Policy (2010) contains guiding principles for decision-making affecting wetlands. NSW has approximately 4.5 million hectares of mapped wetlands, which constitute 6% of the State's area. The Natural Resources Commission of NSW has defined "important wetlands" as being those listed under the Ramsar Convention or in the Directory of important wetlands of Australia. As at August 2015, over 185 sites in NSW are on these lists.

There are a number of exceptions which obviate the need to obtain development consent under SEPP 19, including disturbance to bushland for bushfire hazard reduction, for the construction of electricity and telecommunication lines, and the construction of pipelines and main roads (cl 6(2)).

• The Commonwealth's Environment Protection and Biodiversity Conservation Act 1999

The NSW Wetlands Policy is not a legally enforceable document. Rather, its purpose is to complement the legislation described above by providing guidance to decision makers whose decisions may affect wetlands.

SEPP 19 - Bushland in Urban Areas [12.890] SEPP 19 protects bushland in areas which are zoned or reserved for public open space

under LEPs by requiring development consent from the local council before the bushland can be disturbed. It does not apply to private land. The SEPP only applies to those local government areas which are listed in its Schedule. This currently includes all local government areas in the Sydney metropolitan region, as well as Gosford, Lake Macquarie, and some parts of the Hawkesbury. The purpose of the SEPP is to protect remnant bushland areas so as to enable their long term survival (cl 2(2)). Development consent must ordinarily be obtained before bushland can be "disturbed" in these areas. Disturbance is defined as "removing vegetation from the bushland or causing a change in the natural ecology of the bushland resulting in the destruction or degradation of that bushland" (cl 4(3)).

Plans of management under SEPP 19 are optional. Where a plan of management is prepared to facilitate recreational use, the requirement to obtain consent can be bypassed (cl 6(2)(6)). This means that bushland can be disturbed, for example, in order to construct playing fields provided that this is in accordance with a plan of management. SEPP 19 does not apply to private land. However, if development is to be carried out on private land which adjoins bushland covered by SEPP 19, the public authority or local council which is responsible for deciding whether to approve that development must consider the need to retain any bushland on the private land, and must also consider the effect of the proposed development on the SEPP 19 bushland (eg erosion, siltation of streams, and the spread of weeds into the SEPP 19 bushland) (cl 9).

SEPP 44 - Koala habitat [12.900] SEPP 44 is unusual because it is directed at a single species. The purpose of the SEPP is to conserve koala habitat in an attempt to maintain a permanent free-living population and to reverse the current trend of koala population decline (cl 3). The SEPP applies to most local government areas except for the Sydney metropolitan area (cl 5 and Sch 1).

When a consent authority (usually a local council) receives a development application which covers an area of more than one hectare, the council must follow a three-step process:

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it must consider whether the land contains "potential koala habitat" by taking advice from a person who is qualified in tree identification (cl 7). "Potential koala habitat" is defined as vegetation of which at least 15% is koala feed tree species. These are listed in Schedule 2 and include tallowwood, scribbly gum and swamp mahogany.

permanent structures, such as roads and pedestrian paths. Part of the land on which the Festival was to be held was zoned 7(k) Habitat Zone. Development for the purpose of a place of assembly was not listed as being permissible in that zone, and was therefore prohibited.

• If it is "potential koala habitat", then the council must take a further step and assess

whether the site contains evidence of a resident population of koalas (eg females with young, recent sightings, historical records of koalas), and therefore comprises "core koala habitat". Again, this must be done by taking advice from a person qualified in fauna survey and management (cl 8).

The Byron Shire Council granted a development consent for the land to be used as a "temporary place of assembly with camping and associated infrastructure". The group, Conservation of North Ocean Shores Inc, challenged the validity of the development consent in the Land and Environment Court because it was concerned about the potential impact of the festival on wildlife and its habitat. The Court found that the development was not for the purpose of roads or agriculture (as the defendant had argued) but was for a place of assembly, which was a prohibited purpose within the Habitat Zone. Consequently, the Court declared the development consent to be invalid and of no effect. The Court also ordered the owner of the land and the festival organiser to pay the conservation group's costs.

• If it is "core koala habitat", then a plan of management must be put in place to manage the

impacts on koalas before the council can grant development consent and the development consent must not be inconsistent with the plan. A plan of management can apply to the site only, to a larger area, or to the whole local government area (cl 11). It must be approved by the Director-General of the Planning Department before it becomes effective (cl 13). Such plans potentially offer active management for koala habitat rather than fragmented regulation on a case-by-case basis. Actions which would improve koala protection where development is approved include things such as:

• Ensuring that boundary fencing does not prevent koalas from moving between trees • Requiring preferred koala feed trees to be used in landscaping, where possible, and • Minimising the threat of koalas being attacked by dogs by either banning them or confining dogs to koala proof yards.

SEPP 44 also encourages local councils to take more strategic action in relation to koala habitat by urging them to survey the land within their local government area to identify areas of potential and core koala habitat, and to amend their LEPs to include such land within an environmental protection zone (cl 15).

Local environmental plans [12.910) In the past, each local council was responsible for preparing its own LEP, which

resulted in a wide variety of zones containing different types of conservation provisions. A common mechanism was the "environmental protection zone" which often required development consent before native vegetation could be removed.

Case study: The Splendour in the Grass Festival and planning controls (2009) [12.920) This is an interesting case which demonstrates how planning controls in

Conservation of North Ocean Shores Inc v B)1ron Shire Council (2009) 167 LGERA52.

The Standard LEP and environmental zones [12.930) Following amendments to the EPA Act in 2006, as at June 2014, 143 of the 152 local councils in NSW had adopted the Standard Instrument Principal Local Environmental Plan (Standard LEP or "LEP template"), which standardises definitions as well as descriptions of zones in LEPs across NSW (see [3.100]). For example, the definitions of "native vegetation" and clearing native vegetation were often unclear or not defined in many LEPs. Under the LEP template, they are now standardised by defining them as having the same meaning as in the Native Vegetation Act 2003 (see Standard LEP, Definitions) (see [12.1370] on the Native Vegetation Act 2003 below).

The Standard LEP contains 354 different land use zones (eg rural zones, residential zones, recreational zones) which local councils must use in developing their LEPs. The Standard LEP contains four options for Environmental Protection Zones. These establish the minimum standards in these zones (see LEP Practice Note 09-002, 30 April 2009 on the Department of Planning website which provides guidance for local councils on how to apply the environmental protection zones in their LEPs).

•

LEPs can be used to protect biodiversity. A company called Splendour in the Grass Pty Ltd had lodged a development application to hold a temporary music festival in the Byron Shire over three days in August or July 2008. The event was to attract a maximum of 22,500 people plus 2,000 staff and guests, with 7,500 of those people being campers. The event required some temporary structures to be built, such as security fencing, and also some

chapter 12 Biodiversity

•

The four options are:

Zone El - National Parks and Nature Reserves. This zone identifies and protects land which is reserved under the National Parks and Wildlife Act 1974. All forms of development are prohibited in this zone (eg dwellings) except for those uses which are authorised under the NPWAct. Zone E2 - Environmental Conservation. The objective of this zone is to protect, manage and restore areas of high ecological and scientific significance, and to prevent development which could cause damage. There are a number of development categories which are prohibited in this zone, including business premises, industries and residential flat buildings.

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Environmental protection works, such as bush regeneration works, wetland protection works, erosion protection works, and dune restoration works, must be permitted, either with or without consent.

Zone E3 - Environmental Management. The objective of this zone is to protect and manage areas with special ecological significance while allowing for a limited range of development, such as dwellings and neighbourhood shops, which will not affect the ecological significance of the area. Like the Environmental Conservation zone, this zone also prohibits certain types of development, such as industries, flat buildings and retail premises. Zone E4 - Environmental Living. This zone offers the lowest level of protection for biodiversity and provides for low-impact residential development to take place in areas which have special ecological value. Industries, service stations and warehouses are prohibited.

There are also three standard zones for waterways: Zone Wl for Natural Waterways, Zone W2 for Recreational Waterways, and Zone W3 for Working Waterways.

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Plans/-/media/BFB0AD30FBAB4F9482AlF31D8CE80646.ashx) ). The provisions in a planning overlay apply in addition to the objectives and land use tables for the particular zone. It is therefore possible for a local council to use a planning overlay to increase protection of biodiversity in its LEP (see the example below in the Mid-Western Regional LEP 2012).

Mid-Western Regional LEP 2012 [12.950] Mid-Western Regional Council has used a planning overlay to protect biodiversity on various land zonings in Mid-Western Regional LEP 2012, for example RS land (large lot residential). Before granting development consent in zone RS, if the relevant land is also indicated to be of moderate or high biodiversity sensitivity on maps forming part of the LEP, then (clause 6.5):

(3)

Because nearly all councils now have an LEP in the Standard LEP template form, this means that nearly all environmental protection zones in LEPs are asset out in the template, and each council has made the choice of which areas to be covered by which zone through the Land Zoning Maps in each LEP. Local councils can also add (but not delete) local zone objectives to supplement the core objectives of each zone, and can add (but not delete) additional permitted or prohibited land uses to each zone, thus imposing more stringent protection for biodiversity if they wish.

Before determining a development application for development on land to which this clause applies, the consent authority must consider: (a)

For example, Shoalhaven City Council in its Shoalhaven LEP 2014 has added the following objectives:

•

in Zone E2 Environmental Conservation - objectives to protect water quality and the ecological integrity of water supply catchments and waterways, to protect the scenic, ecological, educational and recreational values of wetlands, rainforest, escarpments and fauna habitat linkages, and to conserve and, where appropriate, restore natural vegetation in order to prevent erosion

• in Zone E3 Environmental Management - objectives relating to the stability of coastal

landforms, the protection of coastal and foreshore landscapes, and water quality and ecological values. A local council can also include in their comprehensive LEP biodiversity objectives which apply to the whole of the local government area by listing them as an overall aim of the LEP (Standard LEP, cl 1.2). For example, Byron Bay LEP 2014 includes overarching aims (cl 1.2(2)) to respond to changes in the environment consistent with seven listed principles of ecologically sustainable development (ESD).

Planning overlays for biodiversity [12.940] The LEP template does not allow sub-zones to be created (eg a council cannot create a wildlife corridor zone). However it is possible for a local council to use planning overlays in which it can specify additional considerations or standards which must be met before development consent can be granted over land which has particular environmental constraints, such as land required for wildlife corridors or scenic protection (LEP practice note 07-001, 26 March 2007, at http://planning.6sw.gov.au/en/P1ans-for-Your-Area/Local-Environmental;

chapter 12 Biodiversity

(b) (4)

whether the development is likely to have: (i)

any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and

(ii)

any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and

(iii)

any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and

(iv)

any adverse impact on the habitat elements providing connectivity on the land, and

any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that: (a)

the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or

(b)

if that impact cannot be reasonably avoided by adopting feasible alternatives-the development is designed, sited and will be managed to minimise that impact, or

(c)

if that impact cannot be minimised-the development will be managed to mitigate that impact.

[12.960] The Standard LEP prohibits exempt or complying development (see (3.100]) from being carried out on land which has been declared as critical habitat of an endangered species, population or ecological community, or on land which is defined to be environmentally sensitive (Standard LEP, cll 3.1, 3.2, 3.3).

Consultation with the Director-General [12.970] Where a proposed LEP may adversely affect critical habitat, threatened species, populations or ecological communities, or their habitats, the local council must consult with the

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Chief Executive of the Office of Environment and Heritage (EPA Act, s 34A(2)). This provides a supervisory role by which the Chief Executive can monitor, and potentially ameliorate, the impacts of LEPs on threatened species. Consultation takes place after the Planning Department has made its gateway determination that the proposed LEP has sufficient merit to proceed (see [3.310]). The Chief Executive must provide comments within 21 days of being consulted on the proposed LEP (or such other period as agreed) (EPA Act, s 34A(5)). The local council is not bound to follow the Chief Executive's comments, but must consider them (EPA Act, s 34A(6)). The requirement to consult the Chief Executive also applies to the making of SEPPs which may affect threatened species (EPA Act, ss 34A(1) and (2)). The EPA Act also contains a specific provision which relates to LEPs and vulnerable ecological communities. Although an LEP can be made expressly for the purpose of protecting and conserving a vulnerable ecological community, it cannot impose a provision which requires a consent authority to consult with, or to obtain the concurrence of, the Chief Executive of the Environment Department or the Environment Minister, as a precondition to granting development consent to a development that may affect a vulnerable ecological community (EPA Act, s 26(1A), (lB)). The same provision applies to SEPPs.

Trees in urban areas [12.980] Approval to remove individual trees and vegetation (eg shrubs) in urban areas may be

required under:

• a LEP or SEPP, which may require development consent to be obtained for clearing (see above) • the conditions of a development consent, or • the tree preservation control provisions in a development control plan (historically referred to as "tree preservation orders") (discussed below). The removal of trees and vegetation in rural areas is regulated under the Native Vegetation Act 2003 (see [12.1370] below).

Tree preservation controls [12.990] Most LEPs contain provisions which enable the local council to make a tree

preservation order. This power comes from the EPA Act which provides that an environmental planning instrument can make provision for protecting or preserving trees or other vegetation (EPAAct, s 26(4)). Under the (now repealed) Environmental Planning and Assessment Model Provisions 1980 (cl 8), provisions in an LEP which controlled the removal of trees were called "Tree Preservation Orders". More recently, the term "Tree Preservation Controls" is being used to refer to the range of controls over trees in LEPs, development control plans (see [3.260]) and tree preservation orders.

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The Standard LEP template [12.1000] The LEP template contains a standard form clause for tree preservation control

(cl 5.9). The standard clause in the LEP template continues the previous practice of allowing a local council to use a development control plan to identify the type of vegetation which is protected in the local government area, eg by reference to species, size and location. The Standard LEP template states that vegetation types which are identified as being protected under a development control plan must not be ringbarked, cut down, topped, lopped, removed, injured or wilfully destroyed without:

• development consent, or • a permit granted by the local council.

Tree preservation controls can apply not only to private land but also to Crown land, land owned by public authorities and even to council land.

What trees and vegetation ore covered? [12.1010] Tree preservation controls in LEPs and development control plans vary from council to council but typically cover trees which are over a certain height (eg three metres in height), trees which have a certain girth (eg exceeding 0.5 metres), trees which have a certain canopy width (eg exceeding five metres), or trees within a certain distance of a creek or watercourse (eg four metres).

Tree preservation controls can apply to both native and exotic (introduced) trees. They can also apply to shrubs. Some (but not all) tree preservation controls may contain exemptions for trees which are damaged or dead, or which present a risk to public safety. The exact types of vegetation which are protected, including exceptions, will vary from council to council. It is therefore important to check the provisions of the relevant LEP and development control plan.

Exceptions (12.1020] Under the Standard LEP, clause 5 .9 provides that a development consent or permit for removing trees and vegetation is not required in the following circumstances:

• if the local council is satisfied that the tree or vegetation is dead or dying

• • •

if the local council is satisfied that the tree or vegetation is not required as habitat for native fauna (eg tree hollows) if the local council is satisfied that the tree or vegetation is a risk to human life or property if the clearing is authorised under the Native Vegetation Act 2003, Forestry Act 1916, Electricity Supply Act 1995, Roads Act 1993, Surveying Act 2002 or the Noxious Weeds Act 1993.

A local council is not bound to adopt clause 5.9 (it is not "mandatory": see [3.280]), but if it does, then the council must adopt the clause in these terms (Standard Instrument (Local Environmental Plans) Order 2006, cl 4(2)). Tree preservation controls cannot be used by local councils to require consent for clearing that is permitted without consent under the NV Act, which includes clearing for routine agricultural activities (see [12.1430]).

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Enforcement [12.1030] It is an offence under s 125 (1) of the EPA Act to breach a tree preservation control or order. These are strict liability offences (see [2.620]). Enforcement proceedings are usually brought by local councils, although the EPA Act allows any person to bring civil proceedings to remedy or restrain a breach of the Act (s 123). Proceedings are heard in the Land and Environment Court.

The maximum penalty for a person guilty of an offence of breaching a tree preservation control is 10,000 penalty units, and an additional daily penalty of 100 penalty units (EPA Act, s 126(1)). In addition, the Court can order a person to plant new trees and to maintain them to mature growth (EPAAct, s 126(3)).

Case study: Contractor fined $11,000 for breaching Tree Preservation Order [12.1040] Mr Scahill was a professional arborist and landscaper. In 2008, he was engaged by a company which was carrying out a housing development for a private owner on a foreshore site at Avalon, in the Pittwater Council area. A director of the company asked Mr Scahill to cut down two trees growing on the land, a spotted gum and a grey ironbark. The trees were remnant vegetation and part of the Pittwater Spotted Gum Forest which is listed as an endangered ecological community under the Threatened Species Conservation Act 1995.

The cutting down of the two trees was forbidden under the Pittwater Tree Preservation and Management Order which provided that "a person shafl not poison, ringbark, cut down, remove, injure, prune or wilfully destroy any tree ... except with the consent of the Council". Before he cut down the trees, Mr Scahill did not make any inquiries of the Council as to whether it had a tree preservation order, and whether some form of approval might be needed to remove the trees. He failed to do this partly because he was suffering financial hardship at the time and wanted to get the job done quickly in order to get paid. A neighbour saw Mr Scahill cutting down the trees and immediately reported it to the Council, which investigated the matter. Pittwater Council then brought proceedings in the Land and Environment Court against Mr Scahill who pleaded guilty to the offence of breaching the Tree Preservation Order. The Court convicted Mr Scahill of the offence, fined him $11,000, and ordered him to pay the Council's costs of about $13,000.

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The Act only applies to trees on land in urban areas, that is land zoned "residential", "rural-residential", "large lot residential", "village", "township", "industrial", or "business" (Trees (Disputes Between Neighbours) Act 2006, ss 3(1A), 4). The Court has broad powers to make orders regarding a neighbour's trees, which include the power to (s 9):

• • •

order the neighbour who owns the offending tree to trim or lop the tree, and to fix any damage caused by the tree to the applicant's property authorise the person seeking the order to lop or remove the neighbour's tree, and to take action to prevent further damage to their property require the neighbour to pay compensation for damage caused to another's property.

Applications are heard in Class 2 of the Land and Environment Court (Land and Environment Court Act 1979, s 18(g)). When making an order, the Court must consider any impacts on privacy, heritage values and biodiversity (s 12). Before seeking an order, the person must make a reasonable effort to reach agreement with the owner of the land on which the tree is situated and must give them at least 21 days notice (ss 8, 10(1)). If a person fails to comply with an order, the local council can enter the land and carry out the work itself (s 17). An order does not remove the need to obtain consent or approval under any other Act (eg a tree preservation order) to remove the tree (s 6). The Court has stated general principles on the matters to be considered when determining who should pay for any works or removal of a tree (Black v Johnson (No 2) [2007] NSWLEC 513), and to the effect that dropping of leaves etc is ordinarily insufficient basis for ordering removal or intervention with an urban tree (Barker v Kyriakides [2007] NSWLEC 292).

Removing a neighbour's hedge [12.1060) The Trees (Disputes Between Neighbours) Act 2006 also allows a person whose sunlight or views is severely obstructed by their neighbour's hedge to apply to the Court for an order that the neighbour who owns the trees trim or remove the hedge. The provisions apply to hedges of two or more trees, which are 2.5 metres or more in height. The objective of the amendments is to provide a simple, inexpensive and accessible process for resolving neighbour disputes about hedges.

Development control and offsetting

Pittwater Council v Scahill (2009) 165 LGERA 289.

Part 4 development applications Removing a neighbour's tree [12.1050) Where a land owner {or occupier) is concerned that a tree on neighbouring land is causing, or is likely to cause, damage to the person's property, or may cause injury to any person, the land owner concerned can apply to the Land and Environment Court for an order under the Trees (Disputes Between Neighbours) Act 2006 (NSW) that their neighbour's tree be removed.

General consideration of impacts on biodiversity including "significant effects" [12 .. 1070] Where development consent is required under Part 4 of the Environmental Planning and Assessment Act 1979, the consent authority has a general obligation to consider the impacts

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of the proposed development on biodiversity values as it must consider "the likely impacts of that development, including environmental impacts on both the natural and built environments" (EPAAct, ss 79C(l)(b), 89H). Biodiversity impacts can be reduced by the conditions attached to development consents. For example, in Manly Council v Horizon Habitats Pty Ltd [2015] NSWLEC 15 the builder of a waterfront home was prosecuted under the EPA Act and fined $40,000 plus prosecutor's costs for building stairs through bandicoot and penguin habitat in breach of development consent conditions. However, the consent authority does not need to consider the impacts on biodiversity values if the development is "biodiversity compliant development", which means that the development will either take place on biodiversity certified land or under a biodiversity certified EPI (see [12.1290] below), or it has a biobanking statement (see [12.1240] below). The development application itself must identify any critical habitat land and indicate whether the development is likely to significantly affect threatened species, populations or ecological communities unless the development is "biodiversity compliant" (Environmental Planning and Assessment Regulation 2000 (EPA Reg), Sch 1, Part 1). The sections below relate only to development that is likely to have a significant effect on threatened species. The vast majority of developments affecting biodiversity are approved without species impact statements or biobanking agreements, on the basis that the biodiversity effects are not likely to be significant. The degree of scrutiny of assessments as to significance varies between local councils. Pro-development councils will tend to accept development applications supported by 'statements of significance' that impact on threatened species is unlikely to be significant, and vice-versa. On one hand, it can be argued that the threatened species legislation is working if, when presented with a draft development proposal, the ecologist engaged by the developer to prepare the assessment of significance causes the proposal to be amended so as to reduce the impact on biodiversity, and enable the development application to be supported with a "no significant effect" assessment of likely impacts on biodiversity. On the other hand, State of the Environment reports confirm that biodiversity is declining, and continuing development of 'greenfields' sites at the urban fringes, and in sought-after coastal and dividing range areas is partly to blame. While the Timbarra precedent discussed in the following section partly addresses the present imbalance, in practice the system remains loaded in favour of development. Developers tend to engage ecologists in a minimal way, preferring desk assessments of significance to expensive, detailed, on-site field studies. Ecologists tend to write reports that accommodate their clients. The extent of ecological communities on a development site tends to be understated. Local councils rarely have the resources to match the developer's ecological assessments. Unless a conservation group has the energy and resources to examine the development application closely, and makes a strong submission to the consent authority, statement of significance reports that understate the likely biodiversity impact tend to slip through.

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(SIS) (EPA Act, s 78A(8)(b)) (for a discussion of when development consent is required, see Chapter 5). A consent authority can automatically reject a development application within 14 days of receiving it if it considers that it should have been accompanied by an SIS and one was not lodged (EPA Reg, cl 51(2)(6)). The consent authority decides whether there is likely to be a significant effect on threatened species by:

• •

applying the "seven-part test" of significance which is set out in section SA of the EPA Act, and applying the threatened species assessment guidelines issued by the Minister (the current version was issued in August 2007) (http://www.environment.nsw.gov.au/resources/ threatenedspecies/tsaguide07393.pdf) (EPA Act, s 5A(l); TSC Act, s 94A).

The NSW Court of Appeal has held that the test of whether there is likely to be a significant effect on threatened species is a jurisdictional fact. This means that the decision of a local council or consent authority to accept a development application without an SIS can be challenged in the Land and Environment Court, which is entitled to determine for itself, based on the objective scientific evidence before it, as to whether there will or is likely to be a significant effect (Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55).

The "seven-part test" of significance [12.1090] The seven-part test currently provides that the following factors must be considered when deciding whether a proposed action is likely to have a significant effect on threatened species, populations or ecological communities, or their habitats (EPA Act, s 5A(2); TSC Act, s 94(3)):

(a)

in the case of a threatened species, whether the action proposed is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction

(b)

in the case of an endangered population, whether the action proposed is likely to have an adverse effect on the life cycle of the species that constitutes the endangered population such that a viable local population of the species is likely to be placed at risk of extinction

(c)

in the case of an endangered ecological community or critically endangered ecological community, whether the action proposed:

(d)

(i)

is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or

(ii)

is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction

in relation to the habitat of a threatened species, population or ecological community:

Species impact statements

(i)

[12.1080] If a proposed development will be on land contammg critical habitat or the development is likely to significantly affect threatened species, populations and ecological communities, the development application must be accompanied by a species impact statement

the extent to which habitat is likely to be removed or modified as a result of the action proposed

(ii)

whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action

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the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality

(e)

whether the action proposed is likely to have an adverse effect on critical habitat (either directly or indirectly)

(f)

whether the action proposed is consistent with the objectives or actions of a recovery plan or threat abatement plan,

(g)

whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process.

[12.1100] In Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire

Council and Stoneco Pty Ltd [2010] NSWLEC 48, which concerned an appeal by an objector against a council decision to grant consent to a limestone quarry, the Court considered the process for applying the seven-part test of significance in some detail. Where a development concerns threatened species of fish or marine species, the legislation provides that the same process for assessing and identifying the impacts on threatened species, populations and communities is deemed to apply to the fish and marine vegetation (EPA Act, s SC, and Fisheries Management Act 1994, Part 7 A). The EPA Act does not apply to "vulnerable" ecological communities (the lowest level of endangerment) as this type of community is expressly excluded from the definition of "threatened species, populations and ecological communities" in the Act (EPA Act, s 5D). This means that the requirements for consultation and concurrence with the Director-General of the Environment Department and the obligation to prepare an SIS do not apply where it is only a vulnerable ecological communities which might be affected by a development. However, vulnerable ecological communities can be protected under environmental planning instruments (EPA Act, s 26).

What must a species impact statement include? [12.1110] Provisions relating to the form and content of an SIS are set out in the TSC Act rather than the EPA Act (EPA Act, s 4). The TSC Act sets out an extensive list of issues which must be addressed (ss 109, 110) which include:

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application under section 79C, thereby invalidating a purported grant of consent or, as in the case in Western Sydney Conservation Alliance v Penrith City Council [2011] NSWLEC 244, resulting in the suspension of operation of the development consent until the consent authority had regard to the relevant details. The Director-General can impose additional requirements which an SIS must address (TSC Act, s 111). An SIS must state the qualifications and experience of the person preparing it and of anyone else involved in conducting research or investigations for it (TSC Act, s 110(4)). The TSC Act requires the Director-General to institute arrangements to accredit suitably qualified and experienced ecological consultants to prepare SISs (TSC Act, ss 113, 142B). This does not seem to have occurred; however it has accredited assessors to prepare assessments of biodiversity values under biobanking (see below). Understandably (given the absence of an accreditation system for ecologists outside biobanking), it is not obligatory for an SIS to be prepared by an accredited person, nor is it necessary for an accredited person to conduct the preliminary assessment under the seven-part test of significance.

Public exhibition [12.1120] Where a development application involves designated development and a SIS is also required, the public exhibition requirements for the SIS "piggy-back" on the designated development provisions. This means that, along with the development application and environmental impact statement, the consent authority must notify the public that it has received the DA and must then place the SIS on public exhibition for at least 30 days (the "submission period") (EPA Act, s 79(1), (4), EPA Reg, cl 78(1)). It may make available copies of the SIS (being a document referred to in the EIS) for no more than $25 (EPA Reg, Sch 2, ell 8 - 9). Any person can make a written submission to the consent authority on the DA and SIS while it is on public exhibition (EPA Act, s 79(5)). The consent authority must take public submissions into account, and where the concurrence of the Chief Executive of the Office of Environment and Heritage or Environment Minister is required, they must take the public submissions into account in deciding whether to grant or refuse concurrence (EPAAct, ss 79B(5)(c), 79C(l)(d)) .

known or likely to be present in the development area and an assessment of which ones are likely to be affected

A SIS which accompanies a development application for non-designated development is subject to slightly different requirements. It must be publicly notified and exhibited, as this type of development is declared under the EPA Regulation to be "advertised development" (EPA Act, s 79A, EPA Reg, cl 5(1)(c)) (see [5.360)). The consent authority must publish a notice in a local newspaper stating that it has received a development application and SIS, and must make the SIS available for public inspection for 30 days (EPA Reg, ell 87(6), 89). During the public exhibition period, any person can inspect the SIS and make extracts or copies from it and can make written submissions to the consent authority (EPA Reg, cl 91). The consent authority must take these public submissions into account in deciding whether to approve the development application (EPAAct, s 79C(l)(d)).

having regard to the principles of ecologically sustainable development.

Consultation and concurrence

• a general description of the threatened species, populations or ecological communities • details of their local, regional and State-wide conservation status and an assessment of their local and regional abundance • a full assessment of the likely effect of the action on those species and populations, including the quantitative effect on the local population and the cumulative effect in the region • a description of any feasible alternatives which might have a lesser effect on the species,

The failure of an SIS to refer to relevant details of a recovery plan can mean that the consent authority cannot fulfil its obligation to consider environmental effects of a development

[12.1130] Where an SIS has been prepared, a consent authority cannot proceed to grant a development consent without the concurrence (agreement) of the Chief Executive of the Office of

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Environment and Heritage (EPA Act, s 79B(3)). The Environment Minister can elect to act in the Chief Executive's place, and can review and amend any recommendations that the Chief Executive proposes to make (EPAAct, s 79B(4)). If the Planning Minister is the consent authority, the Minister just has to consult the Environment Minister, not obtain concurrence (EPA Act, s 79B(3), (4)). In deciding whether to grant or refuse concurrence, a range of matters must be considered, including the SIS, any public submissions, whether the development is likely to reduce the long-term viability of the species, population or ecological community, whether the development is likely to accelerate the extinction of the species, population or community, and the principles of ecologically sustainable development (EPA Act, s 79B(5)). The Chief Executive can grant concurrence subject to conditions (EPA Act, s 79B(8)). The Chief Executive can grant concurrence which is conditional upon the developer agreeing to undertake voluntary actions to benefit threatened species conservation (EPA Act, s 79B(8A), (8B)). The types of voluntary actions which are contemplated include the surrender of land for protection under the National Parks and Wildlife Act 1974, entering into a conservation agreement, restoration of threatened species habitat, or the contribution of money for one of these purposes.

Alternatives to on SIS [12.1140] However, as a result of a range of amendments to the EPA Act which came into effect in 2008, a developer can now use other processes to avoid preparing an SIS. These processes are intended to integrate threatened species considerations into the land use planning and approval system in a more strategic manner compared to individual applications.

Under the new alternatives, a development will be taken not to significantly affect threatened species, populations or ecological communities, or their habitats, if:

• the development will be carried out on biodiversity certified land (see [12.1290] below), or • a biobanking statement has been issued for the development (see [12.1240] below).

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Species impact statements [12.1160] If the Part 5 activity will take place on land which is critical habitat, or is likely to significantly affect threatened species, populations or ecological communities, or their habitats, then an SIS must be prepared and submitted (EPA Act, s 112(1B)). The process is similar to that for Part 4 developments (see [12.1070] above). For example, the test of significance is the seven-part test, and the form and content of SISs are the same as for Part 4 developments (EPA Act, ss 4, 5A). In deciding whether to carry out an activity or grant an approval following Part 5 assessment, a determining authority must consider the effect of the development on threatened species, populations and ecological communities, and must also have regard to recovery plans and threat abatement plans (EPA Act, ss 111(4), 112A).

As with Part 4 developments, an SIS is not required if the activity is to be carried out on biodiversity certified land or has a biobanking statement.

Public exhibition (12.1170] A SIS for a Part 5 assessment must be publicly notified and placed on public exhibition by the determining authority for at least 30 days (EPA Act, s 113(1), (8)). Any person can inspect the SIS, and can make a written submission during the public exhibition period (EPA Act, s 113(2)). Public submissions must be taken into account by the determining authority in deciding whether to carry out the activity or grant the approval, and by the Chief Executive in deciding whether to grant or refuse concurrence (EPA Act, ss 112(1)(6), 112D(l)(c)).

Consultation and concurrence [12.1180] Where an SIS is required, the concurrence (or agreement) of the Chief Executive of the

Office of Environment and Heritage is also required before a Part 5 activity can proceed or an approval can be granted following a Part 5 assessment. The relevant provisions are very similar to those under Part 4 (see [12.1070] above) (EPA Act, ss 112B-112E).

Where one of these exceptions apply, an SIS will not be required.

State significant development and infrastructure Part 5 activities General consideration of biodiversity impacts [12.1150] Where activities require a Part 5 assessment under the EPA Act the effects on threatened species must be considered (for more information on Part 5 activities, see Chapter 6). The determining authority (the body carrying out the activity or granting the approval) must first consider the effect of the activity on critical habitat, on threatened species, populations or ecological communities, and on any other native fauna and flora which is protected under the NPW Act (EPA Act, s 111(2), (4)). As with Part 4 developments, a determining authority does not have to consider the effect of the proposed activity on biodiversity values if the activity will be carried out on biodiversity certified land (see [12.1290]) or if the activity has a biobanking statement (see [12.1240]).

[12.1190] An SIS is not required for applications relating to State significant development (EPA Act, s 78A(8); see [5.2700]). Proposed amendments to regulations so as to require an SIS as part of any EIS have not been made (as at July 2015) (EPA Act, ss 78A(8A), 89G). Nor is an SIS required for applications relating to State significant infrastructure (see [5.350]). Ad hoc requirements for environmental assessment can require biodiversity issues to be assessed by an applicant (EPA Act, s 115Y), but proposed amendments to regulations to require an SIS as part of any EIS have not been made (as at July 2015) (EPA Act, ss 115ZM(a), (e)).

State significant development is expressly excluded from the requirement in Part 4 of the EPA Act, which requires the concurrence of the Chief Executive of the Office of Environment and Heritage or consultation with the Environment Minister where threatened species may be affected, unless an EPI states that the requirement does apply (EPA Act, s 79B(2A); see [5.1270]). Nor does the requirement for consultation and concurrence apply to State significant infrastructure, although the Secretary may choose to consult the Chief Executive (EPA Act, s 115Y(3)).

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Bio banking [12.1200] In 2008 the NSW Government introduced an alternative option for regulating the impacts of development on biodiversity and threatened species in NSW, known as the Biodiversity Banking and Offsets Scheme ("Biobanking Scheme"). The framework for the Scheme is based on:

• Part 7A on "Biodiversity banking" inserted into the TSC Act • the Threatened Species Conservation (Biodiversity Banking) Regulation 2008, and • the Biobanking Assessment Methodology (2014), available

at:

http://www.environment.nsw.gov.au/resources/biobanking/140661BBAM.pdf. The Biobanking Scheme allows biodiversity credits to be created and traded. Under the Scheme, a developer can elect to purchase biodiversity credits to offset the potential impacts of a proposed development as an alternative to preparing an SIS and seeking the concurrence of the Chief Executive of the Office of Environment and Heritage (or consulting with the Environment Minister) under the EPA Act. Participation in the Scheme is, however, voluntary. The main objective of the Biobanking Scheme is to facilitate development in a way that will "improve or maintain" biodiversity values in NSW.

How are biodiversity credits created? [12.121 OJ Biodiversity credits are created when a landowner enters into a biobanking agreement with the Environment Minister to establish a biobank site on their land (TSC Act, s 127D).

Under the biobanking agreement, the landowner agrees to carry out certain management actions on their land which will improve the biodiversity values of the site, such as managing grazing, weed control, or fencing. The agreement sets out the number of classes of biodiversity credits which will be created in return for those management actions (TSCAct, s 127E). These are determined by the Director-General of the Environment Department in accordance with the Biobanking Assessment Methodology (see [12.1260] below). The Director-General must keep a register of all biobank sites in NSW (TSC Act, ss 127X, 127ZZB). Participation in the Scheme is voluntary. A biobanking agreement can cover private or public (Crown) land (but not Crown-timber lands) (TSC Act, s 127F). Biobank sites can also be established on land to which the Native Vegetation Act 2003 applies, which means that landholders in rural areas can use their land to generate biodiversity credits, although this option is not available if the land has already been used as an offset under a PVP (see below) (Threatened Species Conservation (Biodiversity Banking) Regulation 2008, cl ll(l)(c)). The Director-General must keep a register of all biobank sites in NSW (that is, areas covered by a biobanking agreement) (TSC Act, s 127X). A landowner who is interested in establishing a biobank site on their land can lodge an Expression of Interest with the Department. These are placed on a register and developers who are interested in purchasing credits from a site on the register can approach a landowner directly. The landowner must enter into an agreement with the Environment Minister (biobanking agreement) before credits can be issued. The agreement may also require the Minister to provide technical or other assistance to the landowner (TSC Act, s 127E(2)). The TSC Act provides for

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conservation brokers to assist landowners to identify biobank sites, negotiate biobank agreements, and to buy and sell biodiversity credits, although (as at July 2015) the Regulations have yet to establish a process for accrediting these brokers (TSC Act, s 127ZZI).

T roding in biodiversity credits [12.1220] Once created, the biodiversity credits are held in a registry in the name of the landowner (TSCAct, s 127W(7)). The landowner can then sell the credits to whomever they wish (eg a developer, speculator, or maybe a conservation group) (TSC Act, s 127Z). Part of the proceeds from the initial sale must be paid into the Biobanking Trust Fund from which the landowner will receive scheduled payments at a later date to meet the ongoing costs of managing the site (TSC Act, s 127ZW).

For a credit to be "used" it must first be purchased and it is then "retired" (TSC Act, s 127ZG). What this means is that the Director-General makes an entry in the register so that the credit cannot be used again (TSC Act, s 127ZH).

The first biobanking site - the Missionaries of the Sacred Heart at Douglas Park [12.1230] The first biobanking site was established in 2010 at St Mary' s Towers, Douglas Park, in south-west Sydney and covers an area of 80 hectares, including 36 hectares of critically endangered Cumberland Plain Woodland. The Missionaries of the Sacred Heart own the property and have sold their credits to the Growth Centres Biodiversity Offsets Program which administers developer levies from the north-west and south-west Growth Centres in Sydney. The Missionaries received an upfront payment of $1.1 million, and then annual management payments from a total of $555,000 paid into the BioBanking Trust Fund. Agreed management actions include removing existing rubbish, installing new fences, ongoing weed and feral animal control, and the revegetation of previously grazed land.

Biodiversity statements for developers [12.1240] A developer who wishes to purchase biodiversity credits to offset the impact of a proposed development must first obtain a biodiversity statement. The Director-General of the Environment Department can only issue a biodiversity statement if the development will "improve or maintain" biodiversity values. This is determined in accordance with the Biobanking Assessment Methodology (TSC Act, s 127ZL) (see [12.1260] below). The statement sets out the amount and type of biodiversity credits which the developer must purchase and retire (TSC Act, ss 127ZK, 127ZN). The terms of the statement must be incorporated into the conditions of any subsequent Part 4 development consent or Part 5 assessment and approval granted under the EPA Act (TSC Act, ss 127ZO(2), 127ZP(2), (5)).

The effect of obtaining a biodiversity statement is that:

• The consent authority under Part 4 of the EPA Act or the determining authority under Part 5 does not need to consider the likely impact of the development on biodiversity values (TSC Act, ss 127ZO(5), 127ZP(7))

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the developer does not need to prepare a SIS or obtain the concurrence of the Director-General (or consult with the Minister) when obtaining a development consent under Part 4 or an approval following assessment under Part 5 of the EPA Act (TSC Act, ss 12720(1), 127ZP(1)).

Participation is voluntary, so the developer can choose whether to apply for a biobanking statement or to apply the seven-part test of significance in order to determine whether a SIS must be prepared. If the Director-General refuses to issue a biobanking statement, the developer can still seek to have a development evaluated under Part 4 or assessed under Part 5 of the EPA Act (TSC Act, s 127ZL(8)). Once issued, the developer has two years within which to obtain consent or approval for the project under the EPA Act before the biobanking statement lapses, unless it is extended (TSC Act, s 127ZQ).

When con biobonking be used? [12.1250] A biobank site (where credits are created) can be established on public or private land, including land to which the Native Vegetation Act 2003 applies. Biodiversity credits can be used to offset the impacts of any projects dealt with under the EPA Act, including Part 4 development (TSCAct, Part 7A; EPAAct, s 891), Part 5 activities (EPAAct, s 111(2)(d), TSCAct, Part 7A) and State significant infrastructure under Part 5.1 (EPA Act, s 115ZC). For example, the Planning Minister can approve a State significant development or infrastructure subject to a condition that the proponent (developer) purchase and retire a specified number and type of biodiversity credits under the Biobanking Scheme (EPA Act, ss 891, 115ZC).

However there is a restriction on where biodiversity credits can be used as offsets. Biobanking cannot be used to offset the clearing of native vegetation if that clearing requires development consent or a PVP under the Native Vegetation Act 2003 (TSC Act, s 127ZJ). The effect of this exception is to establish two parallel systems of offsets in which biobanking is used to offset impacts in urban areas, and PVPs are used to offset the impacts of clearing in rural areas (for more information on the Native Vegetation Act 2003 and PVPs, see [12.1370] below). As at the time of writing (July 2015), the Government is considering recommendations from an independent biodiversity legislation review panel to repeal the Native Vegetation Act 2003, and to integrate the assessment and approval of all forms of agricultural development that involve clearing of native vegetation into the EPA Act. Biobanking cannot be used to offset the impacts of development on threatened species, populations or ecological communities of fish or marine vegetation (TSC Act, ss 12720(9), 127ZP(ll)).

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The Methodology also establishes "red flag" areas. These are:

areas where there are listed species which have been identified as not being able to withstand further loss and, provided the vegetation is in at least moderate condition,

• vegetation types which have less than 30% remaining compared to 1,750 levels and • ecological communities which are listed as critically endangered or endangered under the TSC Act or the Commonwealth's Environment Protection and Biodiversity Conservation Act 1999. Even in these areas, however, the Director-General still has a limited discretion to decide that it is possible for the development to be regarded as improving or maintaining biodiversity values after:

• • • • •

considering options to avoid impact on the area excluding the possibility that the area is greater than four hectares and contains a highly cleared vegetation type determining that the contribution of the area to regional biodiversity values is low determining that the viability of biodiversity values on the area is low or not viable requiring biodiversity credits to be retired.

Biodiversity assessments for proposed biobank sites must be carried out by accredited Biobanking Assessors (TSC Act, s 142B(l)(b), Threatened Species Conservation (Biodiversity Banking) Regulation 2008, cl 12).

Public registers [12.1270] The Director-General must make the following information available on public registers (including the website of the Department):

• • •

A register of biobank sites showing the location of each biobank site with a copy of the biobank agreement (TSC Act, s 127ZZB) A register of biodiversity credits showing how they were issued, who owns them, how much was paid for each credit, and whether they have been retired (TSC Act, s 127ZZC) A register of biobanking statements, including a record of whether they have been incorporated into any development consent or approval under the EPA Act (TSC Act, s 127ZZD).

Biobonking assessment methodology

Slow uptake of biobanking, but here to stay

(12.1260] The detailed Biobanking Assessment Methodology (the Methodology) (October 2014) which establishes a science-based process for (TSC Act, s 127B):

[12.1280] The Biobanking Scheme reflects a broader regulatory trend towards using marketbased approaches to address environmental problems. For more information on market-based approaches, see [12.1200].

taking, or agreeing to take, certain management actions to improve the biodiversity values of their land

The Biobanking Scheme has been slow to attract landowners and developers. This is understandable given its novel, ambitious and complex nature, the fact that it is voluntary, and the significant establishment costs, which render it of interest only for large projects. As at July 2015:

• determining the amount and type of credits that can be created in return for a landowner

• establishing the number and class of credits that a developer must retire in order to offset the impacts of a proposed development.

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• while the Environment Department had received over 121 expressions of interest from •

landowners interested in establishing a biobank site on their land, biobanking agreements had been entered into over only 44 sites only 13 biobanking statements had been issued over development sites. (These state the number and type of biodiversity credits that the developer must purchase and retire in order to fulfil all biodiversity considerations needed to obtain development consent). Of these, only five biobanking statements had been incorporated into a development consent or approval.

Despite the slow uptake of biobanking, with developers preferring the SIS route (or, in the vast majority of cases, preferring to argue that a development will not have a significant effect on threatened species, and thus need no particular biodiversity assessment outside section 79C of the EPA Act), the Methodology has had an important indirect effect on biodiversity assessment. It provides a more rigorous procedure for assessing biodiversity which has in practice become a benchmark for the calculation of the quality and quantity of offset areas needed to compensate for biodiversity values to be lost on a development site. The number of biobank sites is likely to increase significantly under the NSW Biodiversity Offsets Policy for Major Projects (see below at [12.1340]). This policy commenced in October 2014, and will require offset sites in respect of State Significant Development and State Significant Infrastructure biodiversity impacts to be secured by a biobanking agreement, after a transitional period of 18 months. The Review of biodiversity legislation in NSW (December 2014) commissioned by the Environment Minister recommended: the broader and deeper application of offsetting, as approved in the NSW Biodiversity Offsetting Policy for Major Projects and through mechanisms such as biodiversity certification and BioBanking. A statewide biodiversity offsets fund should be operational as soon as possible.

Biodiversity certification of land [12.1290] Local councils can seek TSC Act biodiversity certification from the Environment Minister for areas of land, such as land intended for new infrastructure projects and proposed subdivisions.

Biodiversity Certification Assessment Methodology [12.1300] The objective of biodiversity certification is to identify and protect areas of high conservation value at an early stage in the planning and development process so that biodiversity impacts can be addressed and offset strategically, rather than being dealt with in a piecemeal fashion in response to individual development applications, as is the case with biobanking. However, the two systems are intertwined: an offer to enter into a biobanking agreement can be used as an inducement when seeking biodiversity certification (see [12.1320] on Applications below). For example, in 2014 the Environment Minister granted biodiversity certification of 69 ha of coastal land near Broulee to enable further urban development, provided that the loss of biodiversity on the development land is offset. The certification required Eurobodalla Shire Council to enter into a biobanking agreement to fund the ongoing conservation of 405 ha of

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nearby Bangalow-Old-man Banksia open forest on coastal sands, and other endangered ecological communities. As a result, 2,432 credits in relation to five types of plant community in 13 locations were created. Development applications in respect of the 69 ha of development land will not have to further consider biodiversity impacts, but development consents to be issued over that certified land will require developers to purchase and retire the credits. The purchase price from each credit sale and retirement will be paid into the BioBank Trust Fund, from which the cost of actions needed for the long-term conservation management of the biobanking agreement land can then be paid. The Environment Minister can confer biodiversity certification only if the effect of the certification will be to improve or maintain biodiversity values and is bound to refuse certification if it does not (TSC Act, ss 1260, 126R). This assessment must be made in accordance with the Biodiversity Certification Assessment Methodology (February 2011) that has been developed to implement the scheme (TSC Act, ss 126P, 126S - 126X). The Methodology can be accessed at http://www.environment.nsw.gov.au/resources/biocertification/ 110170biocertassessmeth.pdf. The environmental integrity of this Methodology and its ability to uphold the test of "maintaining or improving biodiversity values" have been strongly criticised by some for a range of reasons, and it has been identified as being much weaker than the Biobanking and Native Vegetation Methodologies (see [12.1260] and [12.1490]). The 2014 independent review of NSW biodiversity legislation recommended to the Government that a single biodiversity assessment methodology be developed to cover all development (including native vegetation clearing currently regulated under the Native Vegetation Act 2003, offsets for major projects, biobanking, and biodiversity certification of development land.)

Applications [12.131 0] Applications for biodiversity certification can be made by any planning authority (eg a local council) and are determined by the Environment Minister (TSC Act, ss 126}, 126M). An application for biodiversity certification must be accompanied by a biodiversity certification strategy which identifies what conservation measures the parties propose to take to ensure that the overall effect of biodiversity certification, if granted, will improve or maintain biodiversity values (TSC Act, s 126K). These might include actions to permanently set land aside from development by entering into a biodiversity certification agreement (see [12.1330] below), entering into a planning agreement (see [5.2110]), entering into a conservation agreement (under the Environment Protection and Biodiversity Conservation Act 1999 or the NPW Act: see [12.1660], [12.1610]), entering into a biobanking agreement, or consenting to a PVP under the Native Vegetation Act 2003 (see [12.1470]). They can also include imposing development controls under the EPA Act (s 126L). Applications for biodiversity certification must be publicly notified and public submissions called for (TSC Act, s 126N).

Biodiversity certification orders [12.1320] The effect of land receiving biodiversity certification is that (TSC Act, s 1261):

• •

State significant infrastructure (see [5.2750]) does not need to be assessed for its impacts (TSC Act, s 126I(1A)) Projects under Parts 4 and 5 of the EPA Act are assumed not to have a significant effect on threatened species, populations or ecological communities, and do not therefore require an

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SIS. Consent authorities do not have to take into account the effect of the development on biodiversity values (TSC Act, ss 126(2), 1261(2) - (5)) The Native Vegetation Act 2003 does not apply to biodiversity certified land (TSC Act, s 1261(6); NV Act, s 5(1)(c)).

While the planning authority that applied for the certification will be bound by its terms, an individual can only be bound by a biodiversity certification order if they agree (TSC Act, s 126Z(2)). The certification remains in place indefinitely or for the period specified in the order, and is legally enforceable (TSC Act, ss 126ZA, 126ZD). If land is biodiversity certified, this must be noted on the section 149 planning certificate (EPA Reg, cl 9A; see [3.710]).

(12.1340]

2.

All regulatory requirements must be met.

3. 4. 5. 6.

Offsets must never reward ongoing poor performance.

chapter 12 Biodiversity

Offsets will complement other government programs. Offsets must be underpinned by sound ecological principles. Offsets should aim to result in a net improvement in biodiversity over time.

7.

Offsets must be enduring - they must offset the impact of the development for the period that the impact occurs.

8. 9.

Offsets should be agreed prior to the impact occurring.

10.

Offsets must be targeted.

11.

Offsets must be located appropriately.

12.

Offsets must be supplementary.

Biodiversity certification agreements

13.

(12.1330] A biodiversity certification order may be based on a biodiversity certification agreement between a person and the Minister. An agreement can require a person to make a financial contribution to the Minister for the purpose of improving biodiversity values, can require the person to dedicate land for conservation purposes, and can require the person to refrain from doing certain things on the land (TSC Act, s 126ZH).

Offsets and their actions must be enforceable through development consent conditions, licence conditions, conservation agreements or contracts.

In relation to State Significant Development and State Significant Infrastructure, since October 2014 the NSW Biodiversity Offsets Policy for Major Projects applies. The independent review panel that reviewed the NSW biodiversity legislation in 2014 endorsed the approach in this policy, which is underpinned by six principles:

Biodiversity certification does not apply to threatened species, populations or ecological communities of fish or marine habitat. These are protected under Part 7A of the Fisheries Management Act 1994 (TSC Act, s 126ZZB).

A biodiversity certification agreement has effect indefinitely, or for the period specified in the agreement (TSC Act, s 126ZI). An agreement is legally enforceable in the Land and Environment Court and runs with the land (TSC Act, ss 126ZJ, 126ZK). The Minister can suspend biodiversity certification if a person has failed to take the measures agreed to (TSC Act, s 126ZO).

Other offsetting (12.1340] As discussed above ([12.370]), the concept of offsetting the biodiversity lost on a development site by protecting the biodiversity on other land is relatively new. Its origin is in the "maintain or improve" test, introduced in 2005 in the Native Vegetation Act 2003 (see [12.1370]). Rather than relying only on the traditional, procedural controls aimed at better assessing the likely impacts of proposed development on biodiversity, the NV Act introduced a substantive pre-condition to clearing rural land, namely that environmental outcomes should be maintained or improved. If on-site measures to avoid and mitigate biodiversity impacts are insufficient to maintain or improve biodiversity values, then rural land clearing cannot proceed, unless the 'maintain or improve' test can be satisfied by measures to conserve biodiversity on other land (offsetting). Biobanking extended the offsetting logic to development land zoned for urban purposes. An indirect effect of the development of the assessment methodologies and regulatory schemes for the NV Act and biobanking has been to promote the use of offsetting. The Office of Environment and Heritage has published Principles for the Use of Biodiversity Offsets in NSW (other than with regard to State Significant Development) (http:// www.environment.nsw.gov.au/biodivoffsets/oehoffsetprincip.htm), reproduced in summary form below:

1.

Impacts must be avoided first by using prevention and mitigation measure.

Offsets must be quantifiable - the impacts and benefits must be reliably estimated.

1.

Before offsets are considered, impacts must first be avoided and unavoidable impacts minimised through mitigation measures. Only then should offsets be considered for the remaining impacts.

2.

Offset requirements should be based on a reliable and transparent assessment of losses and gains.

3.

Offsets must be targeted to the biodiversity values being lost or to higher conservation priorities.

4.

Offsets must be additional to other legal requirements.

5.

Offsets must be enduring, enforceable and auditable.

6.

Supplementary measures can be used in lieu of offsets.

Proponents must engage an assessor accredited under the TSC Act to prepare a Biodiversity Assessment Report (BAR). The BAR consists of a biodiversity assessment, an impact assessment and an offset strategy. The biodiversity assessment assesses the landscape, native vegetation and threatened species values of the development site in accordance with a stated method. The impact assessment demonstrates avoidance and minimisation of impacts on biodiversity values, and determines the offset requirements (measured as ecosystem credits and species credits) for impacts above stated thresholds. The offset strategy uses the BiobankingAssessment Methodology to assess the biodiversity values at the offset site, and calculate the number and type of biodiversity credits that may be created from management actions on the offset site. The offset strategy can fulfil offset requirements through a biobank agreement, mine site rehabilitation, certain supplementary measures and/or contributions to a proposed NSW Biodiversity Offsets Fund for Major Projects. The BAR is submitted as part of the EIS for development consent or infrastructure approval.

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At face value, the NSW Biodiversity Offsets Policy for Major Projects at least states what Government policy is with regard to the effect of major projects on biodiversity. At present, the legal position is that the application of biobanking principles to State Significant Development is a matter of ministerial discretion, and the 'significant impact on threatened species' trigger does not apply (EPA Act, ss 89L and 891) . While the NSW Biodiversity Offsets Policy for Major Projects continues to allow the Government to approve projects irrespective of the severity of impacts on biodiversity, it reinforces the expectation that projects will maintain or improve biodiversity outcomes, and the rigour needed to measure these.

Case study: Residents of Bulga, Warkworth mine and biodiversity offsetting [12.1350] The Bulga case involving a proposed coal mine extension and the application of the NSW Biodiversity Offsets Policy for Major Projects illustrates the difficulty society has in pursuing sustainability, including with regard to biodiversity. Warkworth coal mine has development consent to continue coal mining near the village of Bulga until 2021. Residents of the village brought an objector appeal against the merits of the Minister's decision to extend the open cut coal mine.

The Land and Environment Court upheld the residents' appeal, ruling that the proponent had not sought to avoid or mitigate the significant impacts on endangered ecological communities (EECs) under the TSC Act and had proposed an offsets package that was inadequate (Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Ltd [2013] NSWLEC 48. The Court of Appeal rejected the proponent's judicial review appeal, finding no error in the process adopted by the Land and Environment Court ( Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105). The Government then issued its Biodiversity Offsets Policy for Major Projects (which includes provisions enabling mine site rehabilitation to be included in offset requirements) and amended the SEPP (Mining, Petroleum Production and Extractive Industries) 2007 by providing that OEH could certify that measures to mitigate or offset biodiversity impact 'will be adequate' (clause 14(3)), and that consent authorities must consider such certification. OEH duly certified the biodiversity offset proposals for the proposed coal mine extension. The Minister then referred the proposal to the Planning Assessment Commission (PAC), asking it to review the project and, in order to prevent the Bulga residents from appealing against an eventual, second approval by the Minister (s 98(5)), to conduct a public hearing. The PAC considered the project to be consistent with government policy overall, but rejected OEH's certification that the proponent's offset package was adequate. The PAC recommended that further attention be given to various matters, including information to substantiate the viability of, and to quantify the cost involved in a proposed regeneration of an offset EEC. The PAC recommended that further detail be provided as to why offsets should not be required to be secured before development commencement. As at the time of writing (August 2015), the extension project was being reviewed by PAC for a second time (again with public hearings so as to prevent any further objector appeal). Arguably, the approval of the coal mine extension will eventually be granted, because both the Government and Opposition

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have supported it. However the objector appeal, the making of the NSW Biodiversity Offsets Policy for Major Projects and the PAC reviews are likely to result in better biodiversity outcomes than if the original proposal had been approved. Opponents to the approval of new coal mines or to extensions of existing coal mines argue that the appeal and reviews are buying time for the political process to work, in other words, time for fossil fuel divestment campaigning to change the dominant, current views of politicians that "coal is good for humanity". The legislative underpinning for NSW Biodiversity Offsets Policy for Major Projects is intended to be formalised after a transitional period ending in May 2017. To a considerable extent, requirements can be implemented through the Secretary of the Department of Planning and Environment's environmental assessment requirements issued to proponents of major projects under the EPA Act (ss 89C 89L). Implementation of the policy will entail a significant increase in the number of biobanking agreements.

Clearing native vegetation History [12.1360] The first attempt to regulate the broadscale clearing of native vegetation in NSW was introduced in 1995 with SEPP 46 - Protection and Management of Native Vegetation . In many rural areas in NSW, SEPP 46 overrode the provisions of the relevant LEP by requiring development consent before the clearing of native vegetation could take place. The SEPP appointed the then Minister for Land and Water Conservation, rather than the local council, as the consent authority for land clearance. Before SEPP 46, land clearing had been controlled under section 21 of the Soil Conservation Act 1938 which prohibited clearing on "protected lands" (steep slopes and near creeks), and in the Western Division under section 18DB of the Western Lands Act 1901. However these controls were inadequate to control the problem of clearing because they only applied to very limited areas.

SEPP 46 was only intended to be a temporary measure pending the introduction of the Native Vegetation Conservation Act 1997. Accordingly, SEPP 46 was repealed in 1998 when the Act came into force . The Act represented a major shift away from using LEPs and SEPPs to control clearing. The key regulatory mechanism was to require development consent under Part 4 of the EPA Act for the clearing of native vegetation on certain land. As with SEPP 46, the Minister, rather than the local council, was the consent authority.

Native Vegetation Act 2003 [12.1370] On 1 December 2005, the Native Vegetation Act 2003 (NV Act) came into for_ce, repealing the Native Vegetation Conservation Act 1997. The NV Act and the Native Vege~atwn Regulation 2013 (NV Reg) now regulate land clearing in rural areas throughout NSW. While the

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NV Act still allows landholders to apply for development consent under Part 4 of the EPA Act, it introduced an alternative option of allowing them to develop a property vegetation plan (PVP). The NV Act encourages landholders (including lessees: NV Act, s 4) to seek approval through PVPs, which allow clearing to be approved if the landowner agrees to offset the impact by setting aside other parts of their property which contain high conservation land and by taking active steps to improve the condition of that land. The use of offsets is one of the key mechanisms by which the NV Act seeks to achieve one of its main objectives, namely, to prevent the broadscale clearing of native vegetation unless it "improves or maintains" environmental outcomes (NV Act, s 3). "Broadscale" clearing means the clearing of remnant native vegetation or protected regrowth, but excludes vegetation which is defined under the Act or regulations as "regrowth". In practice, a great deal of clearing in NSW takes place under the "regrowth" exemption, thus making the definition of "regrowth" very important (see [12.1420] below). The NSW Minister for the Environment is responsible for administering the Act.

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Exemptions Areas where the Act does not apply [12.1410] The NV act does not apply in the following areas (NV Act, s 5(1), Sch 1):

• national parks and other conservation areas, such as critical habitat • State forests, flora reserves or timber reserves • Urban areas, which are defined as: •

- land within the Sydney Metropolitan Area and the Newcastle local government area, and - any land which is zoned "residential" (but not including "rural-residential"), "village", "township", "industrial" or "business". land which has received biodiversity certification (TSC Act, s 1261(6), NV Act, s 5(1)(d)) (see [12.1290] above).

with (s 12):

The effect of these provisions is that the NV Act generally applies in rural areas across NSW. Clearing of native and non-native vegetation in urban areas is regulated under the Environmental Planning and Assessment Act 1979, including the offsetting and biobanking provisions in Part 7 A of the Threatened Species Conservation Act 1995 (see [12. 1200] above).

• APVP.

Clearing of regrowth and groundcover

Clearing requires approval [12.1380] The NV Act provides that native vegetation must not be cleared except in accordance

• A development consent granted under the NV Act, or Meaning of "native vegetation"

[12.1390] The Act seeks to prevent the broadscale clearing of all remnant native vegetation, which means any native vegetation other than "regrowth" (NV Act, s 9) (see definition of "regrowth" at [12.1420] below). "Native vegetation" is defined very broadly and includes the following types of indigenous vegetation:

• trees (including any sapling or shrub, or any scrub) • understory plants • groundcover • plants found in a wetland.

The Land and Environment Court has held that "vegetation" includes both dead and living vegetation (Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 2) [2010] NSWLEC 73). The Act does not apply to mangroves, seagrasses or other types of marine vegetation, as these are protected under section 205 of the Fisheries Management Act 1994 (NSW) (NV Act, s 6(3)) (see [19.960]).

What sort of "clearing" is regulated? [12.1400] The NV Act defines "clearing" very broadly and includes not just the cutting down or

uprooting of vegetation, but also killing vegetation through poisoning, ringbarking or burning (NV Act, s 7).

[12.1420] The clearing of regrowth is permitted without the need for development consent or a PVP, unless the vegetation is specifically identified as "protected regrowth". The regrowth exemption only applies if the regrowth is vegetation which has grown since 1 January 1990 (or since 1 January 1983 if in the Western Division), or an alternative date specified in a PVP (NV Act, ss 9(2), 19). The Court has held that the defendant bears the onus of establishing, on the balance of probabilities, whether it was regrowth that was cleared (Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 2) [2010] NSWLEC 73, at [229]. In that case, the defendant was ultimately fined $200,000 plus prosecutor's costs for clearing several hectares of native vegetation on his rural property in breach of NV Act, s 12 (Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 4) [2011] NSWLEC 119).

• • •

The exemption does not apply to protected regrowth which includes: regrowth which is identified as being protected regrowth in a PVP or a local environmental plan (NV Act, ss lO(l)(a), (b)) regrowth on land identified as being steep or highly erodible or protected riparian land under a natural resource management plan prepared by the Minister (NV Act, s l0(l)(c)) NV Reg, cl 58) regrowth that has been grown or preserved with the assistance of public funds granted for biodiversity conservation purposes (NV Act, s 10(2)).

The clearing of groundcover is also permitted without approval if the vegetation comprises less than 50% of indigenous species and not less than 10% of the areas is covered with vegetation (whether dead or alive) (NV Act, s 20, NV Reg, cl 62).

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Routine agricultural management activities ore exempt

Clearing permitted under other legislation

[12.1430] Clearing for routine agricultural management activities (RAMA) does not need approval under the Act (ss 11, 22). This includes clearing, to the minimum extent required, for:

[12.1460] Clearing which is permitted under certain listed environmental legislation does not require approval under the NV Act. This includes (NV Act, s 25):

•

the construction and maintenance of farm dams, permanent fences, buildings, windmills, stockyards and farm roads (but not if the area is zoned rural-residential, or on properties of less than 10 hectares - 40 hectares in the Western Division)

• the removal of noxious weeds under the Noxious Weeds Act 1993 (see [11.890]) • the collection of firewood (but not for commercial purposes) • the lopping of native vegetation for stock fodder • traditional Aboriginal cultural activities (but not commercial activities) • activities remove or reduce an imminent risk of serious personal injury or damage to to

•

property. However clearing of native vegetation so as to facilitate the dangerous activity of stock mustering is not within the RAMA exception from the need to obtain a PVP or development consent: Chief Executive Office of Environment and Heritage v Rummery [2012] NSWLEC 271 at [68]-[69]; sentence reduced to $66,000 plus prosecutor's costs in Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106

• clearing for emergencies authorised under the State Emergency and Rescue Management Act 1989 • clearing authorised under the Rural Fires Act 1997 • clearing carried out under a property management plan under the TSC Act • clearing that is part of designated development which has development consent under Part 4 of the EPA Act (see [12.1070]) • clearing for an activity or approval under Part 5 of the EPA Act (see Chapter 6) • clearing for State significant development under Part 4 of the EPA Act (s 89J(e)) • clearing for State significant infrastructure under Part 5 .1 of the EPA Act (EPA Act, s 115ZG(l)(e)).

Approvals under the NV Act

clearing listed feral native plant species (NV Reg, cl 37).

Much of the detail regarding these exceptions is contained in the Native Vegetation Regulation 2013, which should be consulted closely to determine whether a particular exception applies.

Case study: Breach of clearing for routine agricultural management activities [12.1440] In Chief Executive of the Office of Environment and Heritage v Humphries [2013] NSWLEC 213 the defendant used bulldozers to clear 89 ha of his flood plain grazing property near Moree. He knew that he needed development consent or the approval of a property vegetation plan, but proceeded regardless. Although he used some of the felled timber for fencing purposes, the extent of the clearing was beyond the amount permissible as RAMA. The Coolibah-Black Box area cleared caused a medium degree of environmental harm. Pleading guilty to clearing native vegetation in breach of section 12 of the NVA Act, Mr Humphries was fined $67,500 and ordered to pay the prosecutor's costs of $34,000.

Other permitted types of clearing [12.1450] Other types of clearing which are permitted under the NV Act without approval

include:

• The clearing of non-protected regrowth, (unless a PVP provides otherwise) (ss 10, 19) • The clearing of some types of groundcover (but not if more than 50% of the groundcover is indigenous) (NV Act, s 20, NV Reg, cl 62) • The continuation of some limited existing cultivation, grazing or rotational farming activities which do not involve clearing remnant native vegetation (NV Act, s 23 ), and • Sustainable grazing that is unlikely to result in the long-term decline of the vegetation (NV Act, s 24).

Development consent [12.1470] The Environment Minister is the consent authority responsible for deciding whether to grant development consent under the NV Act (NV Act, s 13 ), but in practice decisions are made by Local Land Services (Native Vegetation Act 2003, ss 14(2) and 48). This process generally relies on the Part 4 framework of the EPA Act (NV Act, s 14(1): see Chapter 5). However, development consent for broadscale clearing (clearing of any remnant native vegetation, excluding regrowth) must not be granted unless the clearing will "improve or maintain environmental outcomes" (NV Act, s 14(3)). This is determined in accordance with the process set out in the Environmental Outcomes Assessment Methodology discussed below. The legislation and Assessment Methodology seek improvement in a broader range of environmental outcomes than just biodiversity, including outcomes relating to water quality, salinity and soils. In this regard, the test for establishing whether clearing will improve or maintain environmental outcomes is much broader in scope than that contained in the biobanking legislation and Biobanking Methodology, which restricts assessment to biodiversity outcomes.

In 2005, the NV Act was granted biodiversity certification as part of the NSW Government's broader native vegetation reform package (TSC Act, s 126C). The effect of this is that a development consent for clearing native vegetation under the NV Act does not require the preparation of a species impact statement or consultation between Ministers (NV Act, s 14( 4 ), TSC Act, s 126D).

PVPs [12.1480] PVPs can be used for two separate purposes: obtaining approval to clear (a "clearing PVP"), as an alternative to obtaining development consent to authorise clearing, and obtaining assistance to improve degraded land or to protect conservation areas ("incentive PVPs"). For more information on incentive PVPs, see [12.1640] below.

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PVPs are prepared by the landowner, and a draft version is submitted to the Director-General of the Environment Department. In practice, Local Land Services are again responsible for making decisions on whether to approve PVPs, relying on the Assessment Methodology. A draft PVP must set out the areas of native vegetation which the landholder proposes to clear and the areas where they propose to continue their existing farming activities. It must also include the details of any offsets that are proposed (NV Act, s 28, NV Reg, cl 9). The draft PVP must not be approved unless the proposed clearing "will improve or maintain environmental outcomes" (NV Act, s 29). As with development consents, this is determined in accordance with the process set out in the Assessment Methodology (NV Act, s 32(6), NV Reg, cl 16). Only PVPs, not development consents can rely on offsets, that is management actions that have a full range of environmental benefits, to improve or maintain environmental outcomes as a PVP provides a way of ensuring that these management actions will be maintained by subsequent landholders. Once approved, PVPs are legally enforceable and can be registered on the title of the land, if the landholder agrees (NV Act, s 31(1)). A PVP which is registered binds later purchasers of the land (NV Act, s 31 (3) ). PVPs have effect for the period specified in the plan, although any clearing which the plan authorises must be carried out within 15 years of the plan being made (NV Act, s 30).

Assessment Methodology [12.1490] On 29 November 2013, the Minister adopted the Environmental Outcomes

Assessment Methodology (http://www.environment.nsw.gov.au/resources/vegetation/ 130788EOAMNVR13.pdf) which sets out the scientific basis for assessing and determining whether the clearing proposed will improve or maintain environmental outcomes (NV Reg, cll 16, 18). Under the Assessment Methodology the overall impacts of the proposed broadscale clearing are determined by separately assessing the impacts of the proposal on water quality, land degradation (salinity and soil), and biodiversity and threatened species. For each environmental value, the clearing (and any offsets) must improve or maintain these environmental outcomes. For example, in relation to flat, floodplain environments, clearing increases local recharge, and thus salt mobilization in the soil, and a salinity offset will be required (Assessment Methodology, p 27). The Assessment Methodology is applied using an objective, computer-based decision support software known as the PVP Developer which weighs up the positive and negative outcomes of dif~erent management actions. The Assessment Methodology embraces the use of offsets by which a landowner agrees to set aside an area of land on which they will undertake various management actions (eg fencing, weed management) to protect and improve environmental values of that area.

Prohibited clearing [12.1500] The Assessment Methodology prohibits clearing in certain areas by expressly stating that the expected impacts cannot be offset. These include:

chapter 12 Biodiversity

[12.1530]

• • • •

The clearing of certain types of overcleared vegetation, including vegetation types which have less than 30% remaining compared to 1750 levels and ecological communities listed as critically endangered, endangered or vulnerable under the TSC Act or EPBC Act, provided that the vegetation is in at least moderate condition (para 5.2.1). Clearing within 20 metres of, and within, a stream listed in the Major Rivers Database (because of water quality) (para 3.2.1) Clearing within the riparian buffer distance around wetlands (which are defined in Table 3.1 of the Methodology) (due to water quality) (para 3.2.1), and Clearing land which is classed as having a very high or extreme risk of water erosion hazard (para 6.1, Table 6.4).

Interaction with biobanking (12.1510] Those seeking to obtain approval under the NV Act cannot apply for a biobanking

statement under the Biobanking Scheme which only applies in urban areas (see above [12.1200]) (TSC Act, ss 127ZJ - 127ZK). Although both the NV Act and the Biobanking Scheme adopt the use of offsets as a mechanism to justify the clearing of vegetation, only the latter sets up a formal process for purchasing credits on land owned by others. In practice most offsetting under the NV Act will take place on land owned by those developing the PVP.

Public registers [12.1520] The following documents must be made available on a public register:

• •

Development applications and consents under the NV Act (NV Act, s 15(1)(e)). Applications for PVP and approved PVPs, including the GPS co-ordinates showing the location of the land and the location of any offsets (NV Act, s 32(e); NV Reg, cl 12(1)).

The regional Local Land Services must also make detailed information available for inspection without charge at its main office regarding all development consents, PVPs and offsets in its area (NV Reg, cl 12(2)).

Enforcement (12.1530] Any person can bring civil enforcement proceedings in the Land and Environment

Court to remedy or restrain a breach, or apprehended breach, of the NV Act (NV Act, s 41). It is also an offence to carry out prohibited clearing or to authorise it (eg as a contractor) without development consent or a PVP (NV Act, s 12). The Court has held that this is a strict liability offence (Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121 at 134; see [2.620]). There is thus an onus on those who propose to clear native vegetation to ensure that they have any necessary development consent or PVP (Director-General, Department of Environment and Climate Change v Hudson (2009) 165 LGERA256 at 270). The maximum penalty is unclear, because a cross-reference in the NV Act to the offences provision of the EPA Act has not been updated in line with amendments in 2014 to the EPA Act. Prior to these amendments (which increased penalties), the maximum penalty was

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1,000 pe~alty units, plus a further daily penalty of 1,000 penalty units (NV Act, s 12(2); EPAAct, s 126) pnor to the commencement of the Environmental Planning and Assessment Amendment Act 2014. Proceedings for offences against the NV Act can be dealt with by Local Courts. More serious offences are prosecuted in the Land and Environment Court (Land and Environment Court Act 1979, s 21(~)). Pr~ceedings for an offence must be commenced not later than two years after the date on which evidence of the alleged offence first came to the attention of an authorised officer (NV Act, s 42(4)).

Case study: Breach of Native Vegetation Act 2003 [12.1540] Mr and Mrs Hudson owned a property known as "Yarrol" in the Moree

Plai~s local government area. The property was generally used for sheep and cattle grazing. Between November 2006 and March 2007, a substantial area of native vegetation - 486 hectares - containing coolibah, belah and river cooba, was cleared. The clearing was carried out by earthmoving contractors who used bulldozers and chains to fell or uproot the trees. Mr Hudson was charged under section 12 of the Native Vegetation Act 2003 with the offence of authorising the clearing without development consent or a PVP. He argued that the clearing was done to remove the noxious weed, lippie, which the Court did not accept. The Court found that the offence fell within the upper range of seriousness because the clearing was done for commercial reasons to make the land available for agriculture, and the environmental harm caused was substantial. The offence was also deliberate because Mr Hudson had proceeded to clear the land despite being told _by a representative from the local catchment management authority (being the applicable regulatory authority at the time) that native trees and shrubs of more than 10 years of age were not to be cleared. The Court convicted Mr Hudson of the offence. He was fined $400,000 and ordered to pay the prosecutor's costs.

Director-General, Department of Environment and Climate Change v Hudson (2009) 165 LGERA 256

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(12.1590)

chapter 12 Biodiversity

Noxious weeds (12.1570] Invasive plant species, such as lantana and bitou bush, can have significant adverse effects on biodiversity. They compete with native plants for light and nutrients, smothering smaller plants, and can aggressively invade areas, displacing native plants and animals. The two main mechanisms for managing noxious weeds in NSW are:

• •

threat abatement plans under the Threatened Species Conservation Act 1995, and weed control orders under the Noxious Weeds Act 1993.

Some types of weeds invasion have been declared a key threatening process under the TSC Act, thus triggering the preparation of a threat abatement plan. For example, "invasion by exotic vines and scramblers" and "invasion of native plant communities by bitou bush and boneseed" have both been listed. A threat abatement plan was prepared in 2006 and reviewed in 2011 to address the problem of bitou bush and boneseed. The Plan lists 169 priority sites, where management of bitou bush is most critical for the survival of threatened species, and it identifies northern and southern containment zones in which efforts are being made to halt the spread of bitou bush (http://www.environment.nsw.gov.au/bitoutap/}. For more information on threat abatement plans, see [12.550] above.

Noxious Weeds Act 1993 [12.1580] The Noxious Weeds Act 1993 deals with weed management in NSW. Under the Act,

the Minister for Primary Industries can issue a weed control order declaring that certain types of weeds are noxious and directing that they be notified or controlled in designated areas. Private occupiers of land, public authorities and local councils all have an obligation to comply with weed control orders (Noxious Weeds Act 1993, ss 12 -15). The website of the NSW Department of Primary Industries has a Noxious Weeds Database which lists the weeds which have been declared as noxious and the areas in which they must be controlled. Weeds which must be controlled throughout NSW include blackberry, mimosa and witchweed. For more information on the Noxious Weeds Act 1993, see [11.890].

Voluntary conservation of private land

[12.1550] Provisions applying to the clearing of native vegetation in the Western Division of

NSW are discussed in [11.250].

Private native forestry [12.1560] The harvesting of timber for the purposes of private native forestry can be approved

un~er a PVP (NV Reg, Part 5). The Minister must not approve a PVP for the purposes of private native forestry unless the clearing will improve or maintain environmental outcomes. This is taken to be the case if the clearing is carried out in accordance with the Private Native Forestry Code of Practice (NV Reg, cll 21 - 22). See [13.890].

[12.1590] There are many different options available to assist landowners in NSW who wish to voluntarily protect some or all of the natural features of their private land. Given that the public reserve system (eg national parks) only covers about 8% of land in NSW, it is important to ensure that biodiversity can be conserved on private land too if we are to stem the tide of biodiversity loss. The conservation options range from legally binding agreements which have effect in perpetuity (forever), to more temporary, non-binding arrangements, such as wildlife refuges. It is possible for areas of private land which have been protected voluntarily in perpetuity by their owners to be incorporated into the National Reserve System (see [12.140]).

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development is for an essential public purpose or of state significance, and in such circumstances can unilaterally terminate the agreement (NPW Act, s 691).

[12.1600] The Environmental Defender's Office (NSW) has written a A Guide to Private

Conservation in NSW (9 February 2010). The Guide contains a detailed description of each private conservation option which is available to landowners, including a comparison of the advantages and disadvantages, incentives and tax concessions which are available. The main options, as considered in the Guide, are:

• trust agreements with the Nature Conservation Trust of NSW • conservation agreements with the NSW Environment Minister under the NPW Act • conservation agreements with the Commonwealth Environment Minister under the EPBC Act • property vegetation plans under the NV Act • landholder management agreements (for example, regulating a grant from Local Land Services to fence off riparian land) • voluntary, revocable wildlife refuge dedications under the NPW Act • networking through the Community Environment Network NGO in the Land for Wildlife programme • participation in the Wildlife Land Trust network of sanctuaries • offsetting (creating property vegetation plan or biobanking agreement over land).

The Guide can be downloaded for free at http://www.edonsw.org.au/legal_guides, or you can obtain a free hardcopy by calling the EDO in Sydney on (02) 9262 6989, or Northern Rivers (Lismore) on (02) 6621 1070.

Biobanking a greem e nts [12.1620] A landowner can enter into a biobanking agreement with the Environment Minister

to establish a biobank site on their land (TSC Act, s 127D). A biobanking agreement is registered on the title of the land, binds future owners, and has effect in perpetuity (TSC Act, ss 127G, 1271, 127J). Like a conservation agreement, a biobanking agreement can be suspended by an LEP or SEPP for the purpose of enabling development to be carried out, with the agreement of the Environment Minister. But where a biobanking agreement is involved the Minister must not concur to the suspension unless satisfied that the proposed development will not have a negative impact on the biodiversity values protected by the agreement or that other measures will be taken to offset the impact (eg by retiring biodiversity credits) (TSC Act, s 127P, EPA Act, s 28). Agreements are legally enforceable and can be enforced by any person in the Land and Environment Court (TSCAct, s 127L). The Environment Minister can unilaterally terminate a biobanking agreement if a mining authority or petroleum title is granted over the biobank site (TSC Act, s 127S), but where this occurs, the Minister can order the holder to retire a certain number and class of biodiversity credits (TSC Act, s 1275(2)). If a landowner persistently breaches the agreement, the Land and Environment Court can order that the land be transferred to the Environment Minister (TSC Act, ss 1270, 127U). For more information on biobanking agreements, see (12.1200) above on biobanking.

Conservation agreements

Trust Agreements

[12.161 0] A conservation agreement is an agreement between a landowner and the Environment

Minister and is regulated under the NPW Act (s 69B). Agreements can be used to protect land, buildings or Aboriginal places which have special value, and to protect critical habitat, threatened species, populations, ecological communities or their habitats (NPW Act, s 69C(l)(e2)). If the purpose of the agreement is to protect threatened species, it can also set out what assistance will be given to the landholder to help them promote sustainable farming practices, to implement the requirements of any relevant recovery plans, and to ensure the continued agricultural use of the land (TSC Act, s 126A).

[12.1630] A Trust Agreement is an agreement between a landowner and the Nature Conservation Trust (see (2.150]). The Nature Conservation Trust ("Trust") was created under the Nature Conservation Trust Act 2001 (NSW) and is a non-profit, non-government organisation. A Trust Agreement is legally binding (s 32) and can be enforced in the Land and Environment Court. The landowner and the Trust can agree to register the agreement on the title of the property (s 36). Where this occurs, it will bind any future owners of the land (s 37). The Trust can ensure that the agreement is enforced through a long term Stewardship Program.

Conservation agreements have effect until they are varied or terminated by consent of all parties, or as otherwise set out in the agreement (NPW Act, s 69D). A conservation agreement can be suspended by an LEP or SEPP for the purpose of enabling development to be carried out, but only with the agreement of the Environment Minister (NPW Act, s 69.KA, EPA Act, s 28). The agreement is registered on the title of the property and binds successor in title (NPW Act, ss 69E, 69F). Agreements are legally enforceable in the Land and Environment Court (NPW Act, s 69G). A conservation agreement provides limited protection against future development. The NPW Act provides that a statutory authority that wishes to carry out development in an area covered by a conservation agreement must first obtain the consent of the Environment Minister (NPW Act, s 691(1)). The Environment Minister can consent if there is no practicable alternative, or if the

A Trust Agreement remains in force for the period specified in the agreement, but can be terminated at any time with the consent of all parties (s 34). However, once again, an agreement can be suspended by an LEP or SEPP for the purpose of enabling development to be carried out, provided that the Environment Minister agrees (s 38A; EPA Act, s 28). An agreement will usually impose obligations on the landowner to protect and maintain the land, for which some management assistance and funding may be available (s 33 ). Land which has high conservation value, such as ecological communities, wetlands, migratory bird habitat or wildlife corridors, will be most suitable for a Trust Agreement. As at 30 June 2014, the Trust had purchased 26 properties under its "revolving fund" programme, protecting over 21,000 ha of high conservation value land. It had sold 17 of these properties, after biodiversity protections were instituted.

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PVPs [12.1640) PVPs under the NV Act can be used for different purposes, such as to authorise the clearing of native vegetation, to restore degraded land, or to protect land for conservation purposes. PVPs which focus on restoring degraded land and conserving areas are known as "incentive PVPs". PVPs that authorise clearing are covered in more detail above at [12.1480].

A PVP can be used to protect an area because it is illegal to clear native vegetation which the PVP identifies as requiring protection. PVPs are administered, monitored and managed by Local Land Services, who often have incentive funding available to help landowners carry out conservation activities on their land, such as fencing or replanting riparian vegetation. The PVP should identify the details of any conservation initiatives, such as revegetation plans, salinity strategies and soil erosion control plans, for which financial incentives have been provided or will be sought (eg from Local Land Services) (NV Act, s 28).

[12.1670]

In practice, Commonwealth conservation agreements are rarely used. As at July 2015, there was only one conservation agreement in place in NSW between the Commonwealth and a private landholder (which protected listed threatened species of frog at Myrtle Creek, Bungwalbin, Richmond River).

Proposed law reform: A new Biodiversity Conservation Act? [12.1670) In December 2014 an independent panel's Review of biodiversity legislation in NSW was published by the Office of Environment and Heritage. This report (at pages iv and v}:

•

For more information on PVPs, see [12.1480] above.

W ildlife refuges

• •

[12.1650) A landowner can nominate the whole or part of their property to be a wildlife refuge

under the National Parks and Wildlife Act 1974. If the nomination is accepted, the NSW Governor can then declare in the Government Gazette that the land is a voluntary wildlife refuge (NPW Act, s 68). In practice, these arrangements are administered by the NSW Environment Department. Unlike a biobanking agreement or conservation agreement, a wildlife refuge declaration is non-binding as it can be revoked at any time by the landowner or the Department (NPW Act, s 68(3 )(6)). However the Department has recently strengthened the protection offered under the wildlife refuge mechanism by offering to impose a covenant over the land which would bind future owners to continue to protect the land as a wildlife refuge (Conveyancing Act 1919, s 88E; see [4.140]).

Commonwe a lth conservation agreements [12.1660) The Environment Protection and Biodiversity Conservation Act 1999 (Cth) also

contains a mechanism under which a landowner can voluntarily enter into a conservation agreement with the Commonwealth Environment Minister (EPBC Act, s 304). The agreement can provide for the protection and conservation of biodiversity anywhere in Australia, and can be used in particular for the protection, conservation and management of nationally listed threatened species, ecological communities, or their habitats. They are intended to be used for land with very high biodiversity significance (EPBC Act, s 305(1A)). The agreement should set out the steps which the landowner must take to protect the area (eg restricting access to a place, or eliminating weeds), and whether any money will be paid to the landowner. Commonwealth conservation agreements are legally binding on the Commonwealth, the person with whom the Minister entered into the agreement, and any successors in title (EPBC Act, s 307). An agreement can be terminated by agreement between the Minister and landowner, or in the manner specified in the agreement (EPBC Act, s 308(3)). The Minister can unilaterally terminate the agreement if the Minister is of the opinion that the agreement is not capable of achieving its purpose (EPBC Act, s 308(4)).

chapter 12 Biodiversity

• • • •

• •

Proposes a new Biodiversity Conservation Act, with the goal to maintain a healthy, productive and resilient environment for the greatest wellbeing of the community, now and into the future, consistent with the principles of ecologically sustainable development. Recommends focusing on conserving biodiversity at a bioregional or state scale. Recommends repealing the Native Vegetation Act 2003. The Act has not met expectations as a central pillar of biodiversity conservation in NSW. It has been contentious because of difficulties in implementation and the inequitable distribution of the costs involved, in particular sectors and in particular regions of the state. Recommends repealing the Threatened Species Conservation Act 1995 and parts of the National Parks and Wildlife Act 1974 Act and reconstituting elements of them in a new Biodiversity Conservation Act. Recommends that management of native vegetation in the context of existing agricultural management would be assisted and supervised by Local Land Services, while new agricultural developments which would impact on native vegetation would require consent from the appropriate authorities (often Local Government), as occurs for any other change in land use. Capitalises on opportunities to not only identify areas of high-conservation value outside of the public reserve system but also promote private land conservation and provide funding their long-term on-going management. Encourages the broader and deeper application of offsetting, as approved in the NSW Biodiversity Offsetting Policy for Major Projects and through mechanisms such as biodiversity certification and BioBanking. A statewide biodiversity offsets fund should be operational as soon as possible. Modernises and streamlines the regulation of human-wildlife interactions, particularly in recognition of the increasing popularity of keeping native animals (especially birds and reptiles) as pets, while maintaining the general provisions restricting harm to, or trade in, native wildlife. Recommends the development and use of a comprehensive system for monitoring and reporting the condition (extent and quality) of biodiversity in NSW.

Given the relative failure of law to arrest biodiversity decline to date, it is arguable that the proposed new Biodiversity Conservation Act should add a substantive precondition for development approvals, in addition to procedural requirements, namely that all development impacting upon biodiversity above a certain threshold should maintain or improve biodiversity

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outcomes, having recourse to offset land and contributions to offset conservation management funds as necessary.

13 Forests and plantations law Dr James Prest Lecturer ANU College of Law, Australian National University

Commonwealth law ................................................................................................................................................. [13.20] NSW forestry law ................................................................................................................................................. [13.130] Forestry certification ......................................................................................................................................... [13.1050] Electricity generation from native forest feedstock ......................................................................... [13. l 070]

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[13.10) The laws applying to the management, use and conservation of forests are the product of negotiation, conflict and contest between government, industry and the public over many years. These interactions have included forest blockades, media campaigns, policy debates, report launches and public inquiries, and have also involved litigation.

The content and application of environmental laws has often been a key aspect of disputes over the management of Australia's native forests. In fact, the heat generated in these legal contests has been so intense that it has shaped the development of many aspects of Australian environmental law beyond forestry, particularly environmental impact assessment law and threatened species law. In NSW, in the 1980s a series of citizen-initiated legal actions led to findings against the Forestry Commission for non-compliance with laws relating to environmental impact assessment, wildlife protection and pollution control. Since then, forestry regulation has been streamlined with the introduction of Integrated Forestry Operation Approvals. The role of the Commonwealth has remained minimal since the Regional Forest Agreements (RFAs) with NSW were signed in the late 1990s for most, but not all, forested parts of NSW.

Commonwealth law [13.20] Previously, before the signing of the Regional Forest Agreements (RFAs), the federal government played a significant part in forestry regulation. The export of woodchips was subject to federal regulation, for example, and the export control regime triggered the operation of other legislation such as the Endangered Species Protection Act 1992 (Cth) and the Australian Heritage Commission Act 1975 (Cth) (both now repealed and replaced by provisions in the Environment Protection and Biodiversity Conservation Act 1999 (Cth}: see Chapters 11 and 16). By this means environmental protection conditions were attached to woodchip export licences. However, with the signing of the inter-governmental National Forest Policy Statement in 1992, the Commonwealth began to relinquish its place in environmental regulation. The ensuing RFA process continued this trend.

[13.50]

chapter 13 Forests and plantations law

3.

Southern NSW

4.

Eden.

These regions cover 15.1 million hectares. RFAs are different to NSW Forest Agreements, which are made between NSW Ministers, under NSW legislation (see (13.30)). Some parts of NSW with forestry activity are subject to NSW level regional assessment but are not subject to an RFA. For example, Western NSW has been subject to regional assessment by NSW agencies, but no Commonwealth-State RFA has yet been reached. The same applies for the Brigalow/Nandewar region in the North of NSW (see (13.60)).

Commonwealth and State responsibilities [13.40] In the RFAs, the Commonwealth agreed to defer to state regimes for the management of public forests, and to generally withdraw from regulation of forestry except in relation to issues of national importance. In particular, the Commonwealth agreed that its own environmental legislative obligations could be met by state regimes for environmental impact assessment (EIA) and threatened species consideration. In parallel, the woodchip export control licence regime was gradually relaxed and eventually totally removed. In return, the states agreed to put in place a comprehensive adequate and representative (CAR) reserve system (see [13.60)). The Commonwealth's next step was to enact the Environment Protection and Biodiversity Conservation Act 1999, in which a broad exemption clause (ss 38, 40) purported to remove the Commonwealth's requirements for EIA of forestry in RFA regions (see below, (13.60) and Brown v Forestry Tasmania case study at (13.70)). RFAs contain explicit policy commitments not to apply Commonwealth environmental laws to restrict logging. There are legally binding promises in these agreements for the Commonwealth to pay compensation in the event of breach of a RFA involving economic loss to logging interests arising from curtailment of their legally exercisable rights (Regional Forest Agreements Act 2002 (Cth), s 8).

Regional forest agreements [13.30] RFAs have been at the centre of forest policy in Australia since 1992. These are agreements between the Commonwealth and states which provide for common principles of forest management and specify the means by which the aims of the National Forest Policy Statement (1992) (http://www.agriculture.gov.au/forestry/policies/forest-policy-statement) are to be met. The RFAs are agreements of 20 year duration which, following the assessment of conservation values, specify which areas of forest are available for production forestry and which are to form part of the reserve system. Nationally, there were ten RFAs completed from 1997, covering areas in four states (NSW, WA, Tasmania and Victoria). Four of the regional forest agreement regions are in NSW (see http://www.agriculture.gov.au/ forestry/policies/rfa). These are: 1.

Upper North East

2.

Lower North East

Ecologically sustainable forest management [13.50] Ongoing controversy over the ecological impacts of public forest management has led to the adoption of the goal of ecologically sustainable forest management (ESFM) by state and Commonwealth governments. ESFM can be defined as "managing forests so that they are sustained in perpetuity for the benefit of society by ensuring that the values of forests are not lost or degraded for current and future generations." This goal was adopted, in relation to both public and private forests, by Australian governments in the National Forest Policy Statement and the RFA process. Questions of sustainability are very complex, but conservationists are concerned to make sure those definitions of ESFM stress that forestry activity and the law and policy that guide it ensure conservation of the ecological processes and functions of forest ecosystems.

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The Environment Protection and Biodiversity Conservation Act Regions subject to an RFA [13.60] Under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act} forestry operations in a region subject to a RFA generally can be undertaken without the need to obtain approval from the Commonwealth Environment Minister provided that the text of the applicable RFA is complied with (s 38). The section provides that the Part 3 approval requirements relating to significant impact on matters of national environmental significance (see Chapter 7) do "not apply to an RFA forestry operation that is undertaken in accordance with an RFA." This exclusion applies even where the EPBC Act would otherwise apply, for example where activities are likely to have a significant impact on a listed threatened species or endangered ecological community (s 18).

Case study: Limits to the EPBC exemption: the Wielangta Forest [13.70] The application of this exclusion across Australia was called into question by the decision of Marshall J of the Federal Court in the Wielangta Forest case (Brown v Forestry Tasmania (No 4) (2006) 157 FCR 1). Senator Brown argued, successfully in the first instance, that forestry operations were not being undertaken in accordance with the requirements of the Tasmanian RFA. Therefore, they did not have an exemption from the approval requirements of the EPBC Act. Marshall J found that forestry operations in the Wielangta area were likely to have a significant impact on three endangered species (the Tasmanian Wedge-tailed Eagle, the Broad-toothed Stag Beetle and the Swift Parrot). This was primarily because of findings that Tasmania had not protected the species in question through its forestry management prescriptions, largely because of defects in those prescriptions. Forestry Tasmania were restrained from undertaking any forestry operations in the Wielangta Forest until they obtained an approval under the EPBC Act.

Instead of seeking an approval, the inter-governmental response was to amend the Tasmanian RFA to water down the obligation to protect threatened species. Largely because of these amendments, the first-instance decision was overturned on appeal by the Full Federal Court in Forestry Tasmania v Brown (2007) 167 FCR 34; 158 LGERA 191; [2007] FCAFC 186. The Full Court held that s 38 exempted Forestry Tasmania from the requirement to obtain Commonwealth approval. The High Court denied leave to appeal. [13.80] The broad exclusion for RFA forestry operations does not apply if they are proposed (s 42, EPBC Act}:

• • •

in a property included in the World Heritage list (see Chapter 17, [17.40]) in a Ramsar listed wetland (such as redgum forests within the NSW Central Murray State forests (see Chapter 14, [14.670]) are incidental to another action whose primary purpose does not relate to forestry.

[13.90)

chapter 13 Forests and plantations law

In these situations, Commonwealth approval is required if the proposed action will have a significant impact on any matter of national environmental significance (eg listed threatened species or endangered ecological communities). An additional provision was inserted into the EPBC Act to reduce the chances that a forestry operation might require federal approval. This provision clarifies when a Ministerial decision is required as to whether an action needs federal EPBC approval. Section 75(2B) of the EPBC Act provides that the Minister must not consider any adverse impacts of any forestry operation in an RFA region that is protected by the exclusion clause ins 38.

Regions not subject to an RFA [13.90] There is a possibility that approval may be required under the EPBC Act for forestry operations in a region of NSW not subject to an RFA between the Commonwealth and NSW (mainly in Central and Western NSW). This is primarily because of the risk of taking action that is likely to have a significant impact on listed threatened species or endangered ecological communities. The EPBC Act applies to both privately held and publicly owned land. Regions of NSW with public and private forestry activity not within an RFA region (and thus not subject to the s 38 exclusion for "RFA forestry operations") include the Riverina Redgum forests, the South-West Cypress Forests, and the Brigalow-Nandewar forests. Although a region may have been subject to a regional assessment under NSW law, this is not relevant to the question of liability under the Commonwealth EPBC Act.

The Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (2010: the "Hawke Review", see http://www.environment.gov.au/epbc/review/index.html) considered the application of the EPBC Act to forestry activity. It argued (at 10.10) that: [R]ather than being an exemption from the Act, the establishment of RFAs (through comprehensive regional assessments) actually constitutes a form of assessment and approval for the purposes of the Act. On that basis it emphasised the need for regular monitoring and auditing to ensure they continue to meet the agreed conditions of the RFA. The Review also observed (at 10.42): A recurring issue has been the ability of the Environment Minister to be satisfied that operations in RFA forest regions with potential impacts on matters of [national environmental significance] are actually consistent with the RFA, and therefore satisfy s 38 of the Act. The Hawke Review suggested that although the RFA provisions of the EPBC Act are often read as if they were an exemption, in practice they have effect as a licence, the terms of which must be complied with. The Review noted that (at 10.10): the (RFA) approval has continued to operate irrespective of the extent to which the commitments contained within the agreements have been implemented, particularly in relation to environmental outcomes. The absence of transparent mechanisms to test non-compliance with RFAs and assess governments' performance on RFA obligations causes community concern and mistrust. The lack of transparency also limits the ability of parties to verify whether core environmental commitments or "licence conditions" of the RFAs are being met.

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Forest assessments and forest agreements

(13.140]

•

[13.100] In the National Forest Policy Statement of 1992 (NFPS), Australian governments agreed to the creation of a "comprehensive, adequate and representative" forest reserve system. It was agreed that these reserves would be created where possible from the public forest estate, but if necessary, the reserve system could also be supplemented with forests on private land.

•

Before the RFAs were signed, there was a process known as the comprehensive regional assessment, involving study and assessment of:

•

• • •

forest values forest inventory assessment of ecological sustainability of forest management.

The NFPS required this process to be completed jointly by Commonwealth and state governments. It involved an assessment of forest values, attributes and uses and, most importantly, it identified the area and extent of each forest ecosystem type (current and pre-1750). For each RFA, a wide range of research reports were commissioned addressing ecological matters, economic and social issues and documentation of forest growth stages. The comprehensive regional assessment process adopted nationally agreed criteria to identify areas of forest requiring protection. It was recognised that it is necessary to retain a percentage of each type of forest ecosystem, or, for smaller ecosystems, a minimum area. These areas are to be protected in perpetuity. A general criterion was to include 15% of the pre-1750 distribution of each forest ecosystem type within reserves. Additional criteria were set for the conservation of vulnerable, rare and endangered forest ecosystem types as well as areas of old-growth and wilderness forests. The RFA process protected some of the under-represented forest ecosystems found in state forests by protecting them from logging and placing them in National Parks or informal flora reserves. However, because other under-represented forest ecosystems are found on private land or remain on Crown-timber lands, the RFA process was not sufficient to protect these. Protecting under-represented forest ecosystems is necessary if NSW is to create a comprehensive, adequate and representative reserve system.

Commonwealth responsibilities under international law [13.11 OJ Although the Commonwealth has moved away from legislative responsibility for forestry, it has made domestic and international policy statements that commit Australia to a goal of ecologically sustainable forest management (see [13.50]).

Several international agreements and domestic policy documents are legally or morally binding on the Commonwealth: their combined effect gives the government a strong mandate for action to conserve forest biodiversity and to regulate forestry more actively. The most relevant instruments are:

• •

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the UN Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests (1992) the Criteria and Indicators for the Conservation and Sustainable Management of Temperate and Boreal Forests arising from the Montreal Process {particularly Criterion 7 regarding the legal, policy and institutional framework) the Non-Legally Binding Instrument on All Types of Forests (2007) adopted by the UN Forum on Forests.

In addition, international climate law is providing some momentum in the domestic law-making sphere towards placing an economic value on the carbon dioxide sequestered (stored) in forest ecosystems (see [13.850]).

Illegal Logging Prohibition Act 2012 {Cth] [13.120] This Act, aimed principally at protecting tropical forests overseas, prohibits both the importation of illegally logged timber and regulated timber products (ss 8, 9). It also makes the processing of illegally logged raw logs an offence (s 15). It also requires importers of regulated timber products and processors of raw logs to conduct due diligence in order to reduce the risk that illegally logged timber is imported or processed (ss 12, 14, 18). Illegally logged timber is defined as timber harvested in contravention of laws in force in the place (whether or not in Australia) where the timber was harvested (s 7). The NSW Environment Protection Authority has released a guideline to assist NSW timber processors ensure that they comply with the Federal law.

(See: http://www.agriculture.gov.au/SiteCollectionDocuments/forestry/australias-forestpolicies/illegal-logging/nsw-sta te-s pecific-guideline. pdf.)

NSW forestry law (13. 130) Between 35 and 38% of NSW forests are privately owned and another 29% are held under leasehold. Fifteen percent are State forests managed for timber production and another 15% as national parks and other reserves. A high proportion of the commercially viable forest types are in public ownership.

There is no single law setting out the main framework for regulating forestry across all tenures in NSW, in contrast to Tasmania or Victoria where forest practices codes apply to all tenures. In NSW, three different legal regimes apply to forestry, depending on the type of forestry and where it takes place. These regimes cover: 1.

forestry on public land

2.

plantation forests

3.

forestry on private land.

the UN Convention on Biological Diversity (Article 8(c): see Chapter 12, (12.40])

Public land forestry low

the Kyoto Protocol to the United Nations Framework Convention on Climate Change (Article 3.3)

[13.140] The Forestry Corporation manages approximately 1.9 million hectares of native forest and 250,000 hectares of plantation forest on behalf of the NSW public.

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The Forestry Act 2012 (NSW) established the Forestry Corporation of NSW (s 5) from January 2013, repealing the Forestry Act 1916 (NSW) that had created its predecessor, the Forestry Commission. Although the former Forestry Commission has been corporatised (as a State Owned Corporation), NSW State forests and the land they are situated on remain publicly owned (see [13.170] below). The Corporation is responsible for forestry in State Forests and on land that is owned by the Corporation. In terms of plantations, it is the owner of trees in any plantation that is part of a State Forest (s 12).

Governance [13.150] The responsible Minister is the NSW Minister for Primary Industries. Along with the Minister for Environment, the Minister for Primary Industries has joint responsibility for making forest agreements and integrated forestry operations approvals (IFOAs) (see [13.250]).

The Corporation is run by a Board of Directors appointed by the voting shareholders (s 6) and a CEO as an executive director (s 7). It is subject to the State Owned Corporations Act 1989 (NSW) (SOC Act), with some exemptions (ss 6, 7). The Board is accountable to the voting shareholders, as per the SOC Act. The Corporation has two shareholding Ministers, namely the NSW Treasurer and Minister for Finance, who each hold one share for the NSW Government. The Board is responsible to these Ministers for the Corporation's financial performance and regulatory compliance. The Corporation is exempt from the Corporations Act 2001 (Cth) (s SF) due to a declaration in the SOC Act (s 20G).

Objectives [13.160] The principal objectives of the Corporation include (s 10):

• to be a successful business • to have regard to the interests of the community in which it operates • to contribute to regional development and decentralisation • to conduct its operations in compliance with the principles of ecologically sustainable development (ESD) as defined in the Protection of the Environment Administration Act 1991 (NSW)

•

to be an efficient and environmentally sustainable supplier of timber from land under its control or management.

Each of the principal objectives of the Corporation is expressed to be of equal importance (s 10(2)). Its statutory objectives as a land manager in terms of non-forestry purposes include facilitating public access, promoting recreational use, and the conservation of fauna (other than feral animals) (ss 10(3), 59).

Functions of the Forestry Corporation [13.170] The Corporation manages and regulates forestry activity within State forests and other

"Crown-timber lands" (see [13.180] below).

[13.180]

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The Corporation's statutory functions include (s 11):

• to carry out or authorise forestry operations "in accordance with good forestry practice" on Crown timber land or land it owns • to take or authorise the taking of forest materials from State forests or land it owns • to sell, supply, or process timber, forest products, or forest materials taken or harvested • to establish and maintain plantations • to control and manage forestry areas for non-forestry uses • to carry out measures on Crown timber land for fire protection • to grant forestry rights • to acquire, hold, sell or trade in carbon sequestration rights. The Forestry Act 2012 (NSW) (Forestry Act) provides for the dedication, reservation, management and use of State forests, timber reserves, flora reserves and certain other Crown lands for forestry and related purposes. The Forestry Regulation 2012 (NSW) controls activities on Crown-timber lands. Major modifications to the regulatory and institutional structure governing public forestry were made by the Forestry and National Park Estate Act 1998 (NSW) which was later renamed as the National Park Estate (Land Transfers) Act 1998. Where a NSW forest agreement under Part 3 of that Act is in force, its important provisions apply in addition to the Forestry Act.

Forestry and timber removal on Crown-timber lands [13.180] The Corporation has statutory functions relating to land dedicated as State forest and also over other public tenures, collectively described as "Crown-timber lands" (Forestry Act, s 3). The latter includes land within a State Forest or flora reserve, Crown land (whether or not held by others leased or licence from the Crown, with some exceptions), or land that is subject to a profit a prendre. In this context, a profit a prendre is a right reserved to the Crown to enter a person's land and remove timber (s 3; Sch 1).

The occupation, use, sale, lease, license, dedication, reservation or dealing with Crown Lands requires authorisation (see Chapter 4) but are subject to the specialised regime of the Forestry Act (ss 6, 7, Crown Lands Act 1989). The term "Crown-timber lands" does not include small parcels of land that are subject to various forms of conditional (purchase) lease, annual lease, occupation licence or Western Lands lease, where the land has an area of less than two hectares (s 3 ). Crown-timber lands cannot be reserved as a national park, nature reserve or similar area without the concurrence of the Minister for Primary Industries, as the Minister administering the Forestry Act (National Parks and Wildlife Act 1974, s 30C(c)). It is an offence to take or otherwise damage or destroy timber, forest products and forest materials from these tenures without a timber licence, products licence or clearing licence, or in breach of licence conditions (s 38, Forestry Act). However such damage is not an offence if authorized by a licence or under native vegetation law, mining or petroleum law, the Western Lands Act 1901, or a series of other statutory authorisations (s 38(3)). On travelling stock reserves, if Local Land Services wish to fell or remove timber from an area of greater than one

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hectare it must notify the Forestry Corporation, three months in advance (Local Land Services Act 2013, s 66(1)). In some circumstances, LLS must also notify OEH (Local Land Services Act 2013, s 66(2)).

Dedication, reservation and management of forest land [13.190] Under the Forestry Act and Forestry Regulation 2012 (Forestry Reg), Crown land can be dedicated via Gazettal as:

• a State forest (Forestry Act, s 14; Forestry Reg, cl 52 ), or • a flora reserve (Forestry Act, s 16; Forestry Reg, cl 52).

Dedications as State forest may be revoked only by resolution of both Houses of Parliament (s 15). Two or more State forests can be merged into a single state forest (s 14(4)). Each state forest is to have a distinctive name and number (Forestry Reg, cl 52).

Mining and forests [13.200] Mining and coal seam gas extraction from land underneath State Forests may be facilitated if the Governor places a depth restriction on the State forest (s 14(2)).

Floro reseroes [13.210] The whole or a portion of any State forest (or certain other areas of Crown land) may be dedicated as a flora reserve for the preservation of native flora (s 16) with a specific name and number (Forestry Reg, cl 52). An Act of Parliament is required to revoke a flora reserve (s 16(4)). The Forestry Corporation must prepare a working plan, ie, a detailed written plan of operations for flora reserves. Its objective must be the preservation of native flora. All operations on the flora reserve must be in accordance with the working plan (s 25).

Timber reseroes [13.220] Timber reserves are areas of Crown land that were temporarily reserved for forestry purposes under the former Forestry Act 1916 (NSW) (s 3, Forestry Act) and were prevented from being sold. There are transition provisions preserving previous reservations (Forestry Reg, Sch 3, cl 8(1)). New provisions relating to the sale of State forest land have been made (s 29).

State forests, timber reserves and flora reserves and other State forestry land are excluded from the operation of the Native Vegetation Act 2003 (Native Vegetation Act, s 5(1)(6), Sch 1, Pt 2); see Chapter 12, [12.1370]).

General purpose logging is prohibited in a special management zone in order to protect its special values (s 19(2)). Similarly, integrated forestry operations approvals (see [13.310]) do not allow logging within a special management zone (s 19(4)). However, the declaration of an area as a special management zone is subject to existing licences and leases in force at that time (s 36(1)).

Revocation of State forest [13.240] The dedication of a State forest can be revoked wholly or partially by passage of a special purpose Act (such as the National Park Estate (Riverina Red Gum Reservations) Act 2010) or if approved by resolution by both Houses of Parliament. Similar legislation has been enacted to create national parks elsewhere: see for example National Park Estate (South-Western Cypress Reservations) Act 2010 and National Park Estate (Southern Regions Reservations) Act 2010. The Governor may then revoke the designation by notice in the Government Gazette (Forestry Act, s 15). The land becomes Crown land that is reserved from sale or lease. It may then be dealt with, under the Crown Lands Act 1989 or Western Lands Act 1901, for other purposes, for example reservation as a national park under the National Parks and Wildlife Act 1974 (ss 30A, 33).

Unless bad faith or misconduct by a minister can be proved, there is little likelihood of succeeding in a challenge to decisions by Cabinet to revoke a dedication: Haggarty & Morrison Pty Ltd v New South Wales (1995) 98 LGERA 226. Areas of State forest can be exchanged for other areas of Crown land, subject to certain procedures being followed under the Land Acquisition (Just Terms Compensation) Act 1991 (Forestry Act, ss 26, 31).

Forest Management Plans [13.250] Another layer in the regulatory framework for public forests is the requirement for production of management plans (s 21), known in practice as ESFM plans (ecologically sustainable forest management plans). The Corporation is broadly obliged to prepare management plans for its state forests, although one plan can cover multiple forests (s 21). Management plans must be consistent with integrated forestry operations approvals (IFOAs) and IFOAs prevail if there is an inconsistency (s 22).

At present, there are eleven plans for different regions of NSW. Each plan must specify the ESFM strategy to be applied in relation to the forests to which it applies and the conditions under which timber may be taken (Forestry Reg, cl 51). These management plans must be available for free public inspection at the relevant regional office and head office of the Corporation (Forestry Reg, cl 53).

Special management zones [13.230] If an area of State forest (other than a flora reserve) has "special conservation value", the minister can declare that area to be a special management zone (s 18). Declarations of an area as a special management zone can only be revoked by legislation, except for certain public works (ss 18, 32(2)).

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(13.260]

What is forest management zoning? [13.260] Forest management zoning (FMZ) is one of the basic planning and management tools for State forests . It relies on spatial planning to help balance different management objectives such as:

• wood production

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• protection of the forest environment • protection of water and soil resources • provision of recreation, education and research facilities. This zoning system of land classification sets out in map format the Corporation's intentions in relation to forest management across the entire NSW forest estate. The FMZ system is based on nationally agreed reserve criteria and clearly differentiates between areas of State forest that are specifically set aside for conservation and those available for timber harvesting. Examples of zones include special protection, harvesting exclusion, special prescription, general management, and softwood plantation. The zoning dictates the style of management (whether passive or active) and forest values which are to be protected or enhanced. For example, the 'special prescription zone' does not forbid logging, but requires contractors to "maintain or enhance the values that the area is zoned to protect". The characteristics of each zone, and activities permitted or prohibited within them are set out in State Forests of NSW (1999) Managing our forests sustainably: Forest Management Zoning in NSW State Forests (see http://www.forestrycorporation.com.a u/_data/ assets/pdf_file/000 3/4 3 840 2/managing-ourforests-s ustaina bl y-forest-mgt-zoning-in-nsw-state-forests. pdf).

Forestry conflict and civil enforcement (13.270] Prior to a number of ground-breaking legal proceedings in the 1980s and 1990s, the Forestry Commission and companies operating in State forests were effectively self-regulating, with little outside scrutiny from regulatory agencies such as the National Parks and Wildlife Service and the Environment Protection Authority. However, as a result of litigation and public pressure over a decade or more, the Commission was required by 1997 to seek external legal approvals before it could authorise forestry companies to commence work in State forests. This could be enforced in the courts by members of the public because NSW environmental legislation gave generous rights of standing to bring civil proceedings to remedy or restrain breaches or threatened breaches of laws applying to forestry (see [13.120]). In 1998, the legal regime governing forestry on public forests was radically altered when a system of integrated forestry operations approvals was created by the Forestry and National Park Estate Act 1998. That Act cut off avenues for citizen enforcement in order to provide "certainty" for industry (see [13.310]). However, public land forestry remains subject to stricter controls than private native forestry.

Streamlining forestry law [13.280] In 1998 the framework for regulation of forestry on publicly owned lands in NSW was radically streamlined with the enactment of the Forestry and National Park Estate Act 1998. This Act (now repealed) created an integrated system of a single forestry approval jointly granted by relevant ministers, replacing the previous approach which required individual licences to be obtained from government agencies, covering issues such as water pollution and threatened species. The background to the Act was a 3-4 year period of forest assessment and of negotiation between the Commonwealth and NSW governments and stakeholders (primarily industry and

[13.300)

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conservationists). The objective of this assessment, grounded in scientific studies, was to create "a comprehensive adequate and representative (CAR) reserve system" containing all forest ecosystem types.

Comprehensive regional assessment and the CAR reserve system [13.290] Underlying the Forestry and National Park Estate Act 1998 and other legislation relating to the RFAs was the principle of a "once and for all" conservation assessment of forest areas, leading to a major expansion of the conservation estate. This was counterbalanced by an effort to provide "resource security" to the timber industry. Significant additions were made to the reserve system, and some areas in southern NSW were made available for Aboriginal land claims. Approximately 420,000 hectares were added to the formal reserve system across the upper and lower North-East and Eden regions, with 85 new national parks and other reserves created. However, environment groups claimed that it left issues and community conflict unresolved. The National Park Estate (Reservations) Act 2003 led to further additions to the NSW protected areas system. The Act transferred 52 parcels of State forest land, totaling 65,000 hectares, to the national park estate. It protected almost all of the remaining identified old growth forest on public land in north-east NSW. The Act revoked certain State forests and associated flora reserves, special management zones and national forests (s 4) and reserved these areas as national park, nature reserve or state conservation area (s 5). Additional areas of State forest were revoked by the (s 4). Further areas of State forest were recently added to the protected areas system by the National Park Estate (Riverina Red Gum Reservations) Act 2010 and the National Park Estate (South-Western Cypress Reservations) Act 2010 (see [18.240]).

Controversy over forestry assessment [13.300] The Forestry and National Park Estate Act 1998 (NSW) was preceded by a process of comprehensive regional forestry assessment that lasted nearly four years. The government claimed that the Forestry and National Park Estate Act 1998 was the culmination of that process. Conservationists claimed that the Act did not reflect the results of the long period of scientific research and discussions between key stakeholders. Despite a large increase in areas to be added to the reserve system, environmentalists, including the North East Forests Alliance (NEFA), argued that the conservation targets set under the process of the National Forest Policy Statement would not be met. Additional areas were placed in the reserve system, but it was claimed that this fell short of the area that scientific studies identified as necessary to ensure the long-term viability of threatened flora and fauna. In north-east NSW an additional 380,000 hectares of forest was reserved, compared with the 1.1 million hectares recommended by the studies; 37,000 hectares were reserved in Eden, compared with the 82,000 hectares recommended. In the north-east only 60% of targets for reservation of minimum areas of distinct forest ecosystem types were met; in the lower-north east only 67% of the targets were met. In this sense it was alleged by NEFA that the results of scientific assessments were ignored and a comprehensive, adequate and representative reserve system was not created.

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Regulation where there is an integrated forestry operations approval Forest agreements [13.31 0] The forest agreements set out a strategic framework for the cooperative management of State forests by government agencies. They seek to balance the achievement of conservation, forest management and forest industry outcomes. The agreements address questions of ecologically sustainable forest management, sustainable timber supply, community consultation and indigenous interests.

Prior to the making of the agreements there was an assessment by the Natural Resources Commission (NRC) of environmental and heritage values, economic and social values, as well as ecologically sustainable forest management, and timber resources in each region. The NRC is an independent body with broad investigating and reporting functions for the purposes of establishing a sound scientific basis for the properly informed management of natural resources in the social, economic and environmental interests of the State. (National Resources Commission Act 2003, s 3; see also [14.530]).

[13.330)

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between the Commonwealth and the States.) The first was completed in relation to the Brigalow Belt South Bio-region, which included the Pilliga and Goonoo State Forests. This region in the central north extends from Dubbo to the Queensland border, over 52,400 square kilometres or 6.2 % of NSW. Another assessment has been undertaken in relation to Nandewar (between the Brigalow Belt South Bioregion and the Upper and Lower North East RFA areas) and a third assessment was completed by the Natural Resources Commission in December 2009 in relation to the River Redgums and Woodland forests of the Riverina. A forest agreement is ordinarily a prerequisite to the grant of an integrated forestry operations approval (IFOA), which allows forestry operations to be carried out (see [13.310] below). An IFOA may only be granted where there is a NSW forest agreement in place (s 690). However, special legislation has been enacted which provides for three exceptions to this requirement (s 690(3) - (5): the Brigalow and Nandewar Community Conservation Area Act 2005; the National Park Estate (Riverina Red Gum Reservations) Act 2010 and the National Park Estate (South-Western Cypress Reservations) Act 2010.

Riverina Red Gums

NSW forest agreements are made under Part SA of the Forestry Act. Previously they were made under the Forestry and National Park Estate Act 1998 (FNPE Act). These agreements should not be confused with regional forest agreements (RFAs) between the Commonwealth and State Governments (see above, [13.100]). A NSW forest agreement under the Forestry Act is an agreement between the Minister for Environment and the Minister for Primary Industries (Forestry Act, Pt SA, s 69A).

(13.330] The National Park Estate (Riverina Red Gum Reservations) Act 2010 (NSW) transferred State forest land to the national park estate whilst modifying the regulatory approvals process for forestry in the State forests in the region. It transferred more than 100,000 hectares of river red gum forests in the Riverina to the protected areas estate, adding 65,922 hectares of national park, 15,259 hectares of regional park and 20,684 hectares of land to indigenous protected areas. It left 35,894 ha in State forests.

NSW forest agreements are a prerequisite for the granting of an integrated forestry operations approval (IFOA) (see below, [13.310]), and if an agreement is terminated then the IFOA is revoked (s 690).

River red gums are logged in this region for high value furniture grade timber and veneer, weatherboards, decking, bridge and marine timbers, through to lower value-added products such as railway and landscape sleepers and firewood. An environmental assessment by the Natural Resources Commission (NRC) found that before 2010 logging had been proceeding unsustainably at double the rate of a sustainable harvest (see Riverina Bioregion Regional Forest Assessment: River red gums and woodland forests. Final Assessment Report, Dec. 2009, at http:// www.nrc.nsw.gov.au/publications). Prior to this assessment, no formal environmental impact assessment had been done by the Forestry Commission since 1994. After proceedings were commenced in the Land and Environment Court in September 2007 by the National Parks Association, the Commission reached a settlement in which it admitted that forestry activities required completion of an environmental impact statement under Part 5 of the Environmental Planning and Assessment Act 1979 (see Chapter 14, [14.390]).

NSW Ministers may only reach a forest agreement for regions that have been the subject of a regional assessment by the Natural Resources Commission (NRC), unless other legislation provides otherwise (s 69B; see also [13.320]). The existing forest agreements for Eden, the Lower North East and Upper North East were taken to have already met this requirement (s 69B(4)). The forest agreements for Eden, the Lower North East and Upper North East were made in 1999 and have a 20 year duration and therefore will expire in 2019. A fourth forest agreement, for the Southern Region of NSW, was made in 2002.

Where do NSW forest agreements apply? [13.320] Forest agreements may be made for any area of NSW (s 69A). The four forest

agreements currently in NSW are located in the eastern area of the State. Special legislation has been enacted to exempt other regions from the requirement for a forest agreement (see below). Public consultation is not required for forest agreements made in the Eden, Lower North East, and Upper North East regions unless the agreement replaces an earlier agreement (s 690(3)). A series of regional assessments of forest values in western NSW forests were commenced in July 2000. (This form of regional assessment is not to be confused with assessments for the RFAs

The 2010 legislation provides for regulatory approvals for forestry in the Riverina to be streamlined by enabling IFOAs to be granted for river redgum logging (National Park Estate (Riverina Red Gum Reservations) Act 2010, s 15(1)), without needing to first reach a forest agreement (Forestry Act, s 690(4)). An IFOA has been made for the Riverina forests which sets out a Code of Practice for forestry operations in the production forests.

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What must forest agreements contain? [13.340] The Forestry Act, Part SA sets out minimum requirements for the content of a NSW forest agreement between the relevant Ministers. It requires that a forest agreement must contain provisions relating to (s 69C):

• ecologically sustainable forest management • sustainable timber supply • community consultation on forestry operations • native title rights and Aboriginal land claims. Integrated forestry operations approvals

[13.350] The purpose of the integrated forestry operations approvals (IFOAs) is to "integrate the regulatory regimes for environmental planning and assessment, for the protection of the environment and for threatened species conservation" (s 69L(b)). On that basis, an IFOA is a single document including the terms of other approvals (s 69T):

• • •

a (water) pollution licence and its detailed conditions a licence to harm or kill threatened species (or their habitat) a licence to harm or kill a threatened freshwater fish or its habitat

Individual IFOAs for seven regions specify the conditions for forestry in State forests or Crown timber lands. NSW forest agreements provide the regional framework under which IFOAs are granted. The IFOAs specify the forms of permitted forestry operations on public land in that region and impose conditions on forestry activity. Seven IFOAs have been made to date. These include IFOAs for the Upper North-East, Lower North-East, Southern, and Eden Regions. In Western NSW, IFOAs have been made for the South-Western Cypress forests, the Riverina Redgum forests, and the Brigalow-Nandewar Region. The NSW government is remaking the IFOAs for the Eden, Southern, Upper and Lower North East regions of NSW into a single IFOA. The relevant Ministers can issue an IFOA, covering forestry operations in State forests and "other Crown-timber lands" (s 69N), which addresses specific issues. The Forestry Regulation provides that management plans for State forests must be consistent with IFOAs, and that an IFOA prevails over a management plan, in the event of inconsistency.

Modification of EIA requirements

(13.370)

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prohibit or restrict forestry operations that are subject to an IFOA (s 69W(2)). For example, an LEP cannot require development consent for forestry operations subject to an IFOA (s 69W(2)). In addition, forestry operations cannot be declared to be State significant infrastructure under Part 5.1 of the Environmental Planning and Assessment Act 1979 during any period that an IFOA applies to those operations (s 69W(2A)). Environmental impact statements and species impact statements need no longer be produced for these regions (ss 69W, 69X). The rationale was that the comprehensive regional assessment process that preceded the enactment of the FNPE Act (see [13.290]) was a sufficient assessment of the likely environmental impacts of forestry. The provision means that there is no requirement for additional environmental impact assessment of IFOA forestry over a 20 year period, even if circumstances change and new ecological information comes to light (ss 69Q). There is no requirement for EIA even if the conditions of the IFOA are varied - for example to increase the intensity of logging activity. The grant of exemptions from selected provisions of environmental legislation is a key aspect of the government's offer of resource security to industry. The IFOAs granted to date have been for the full term of 20 years (see [13.440]).

Licensing under an integrated forestry operations approval [13.370] An integrated forestry operations approval integrates approval requirements that were previously separate: it contains the terms of the relevant licences issued under the:

• • •

Protection of the Environment Operations Act 1997 Threatened Species Conservation Act 199 5 Fisheries Management Act 1994.

Anyone carrying out forestry operations under an integrated forestry operations approval is taken to hold licences under those Acts (ss 69T, 69U). For example, the IFOA for the Upper North East Region contains appendices containing detailed and prescriptive licence conditions that are applied by the Environment Protection Authority (EPA) in relation to water pollution and by the Office of Environment and Heritage (OEH) in relation to threatened species protection. They also contain licence conditions for compliance with Part 7A of the Fisheries Management Act 1994, dealing with threatened native freshwater fish (see Chapter 19, [19.150]).

[13.360] The effect of the IFOA provisions is that forestry operations no longer require the same environmental impact assessment (EIA) as other developments in NSW. In other words, the Forestry Corporation has been exempted from the EIS requirements that many other developers have to meet.

The agency responsible for the enforcement of any of the licences incorporated into an IFOA must notify the Ministers who granted the approval of any breach (s 69V). Those Ministers may amend, suspend or revoke an approval (s 69R).

The background is that in reaction to the long history of litigation challenging the Forestry Commission's compliance with environmental impact assessment laws in NSW, the former FNPE Act exempted forestry operations covered by IFOAs from normal EIA procedures. Those exemptions have now been carried over into the new Forestry Act (s 69W). Thus Parts 4 and 5 of the Environmental Planning and Assessment Act 1979 (see Chapters 5, 6) do not apply to the granting of an integrated forestry operations approval or to forestry operations covered by such a forest agreement (s 69W). An environmental planning instrument, such as a SEPP or LEP, cannot

The IFOAs were amended by a Statutory Instrument made by the Minister for the Environment and the Minister for Primary Industries which commenced on 1 March 2013. The amendments included pollution incident reporting and management requirements that were introduced under amendments to the Protection of the Environment Operations Act 1997 which commenced in 2012 (Protection of the Environment Legislation Amendment Act 2011). The IFOA changes require the Forestry Corporation to prepare and implement a pollution incident response management plan and publish pollution monitoring data on its website.

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[13.450]

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Threatened species and ecological communities and logging

Compensation for restriction on supply

[13.380] The IFOA for each region incorporates a licence to harm threatened species (or damage their habitat) under the Threatened Species Conservation Act 1995. The conditions (ie forestry management prescriptions) attached to that licence are designed to mitigate, manage and prevent harm and damage to threatened biodiversity. It is important to note that forestry operations that contravene these conditions would make them liable for an offence under the National Parks and Wildlife Act 1974 (eg harming a threatened species: s 118A).

[13.410] Unlike the Commonwealth Regional Forest Agreements Act 2002, (s 8) (see [13.30])

The IFOA licences do not authorise activity that is likely to harm an endangered population or an endangered ecological community (as far as animals are concerned); or result in the picking of a plant that is part of an endangered population or endangered community; or damage critical habitat; or damage the habitat of an endangered population or endangered community. There may be difficulty in practice in defining the boundaries of an endangered ecological community and this should be carried out prior to harvesting operations commencing, in the harvest plan and by marking out exclusion zones.

If logging under an IFOA takes place in an endangered ecological community those involved are potentially liable under offence provisions in the National Parks and Wildlife Act 1974 (ss 118A, 118C, 118D; see Chapter 12, [12.150]).

Exemptions from other legislation [13.390] Where forestry is authorized by an IFOA, the Forestry Act prevents wilderness

proposals, identification and declarations (s 69Z: see [13.440]). These provisions mean at present that the reach of the Wilderness Act 1987 does not extend to the Eden, Southern or North-East forestry regions, even if particular areas might objectively meet the criteria under the Wilderness Act 1987 for identification as wilderness. In addition, public land forestry covered by an IFOA is exempt from the stop work order provisions of the National Parks and Wildlife Act 1974 and the Threatened Species Conservation Act 1995 (s 69X; see Chapter 17, [17.400]). This exemption does not apply to protection of an Aboriginal object or place under the NPW Act (s 69X(2)). Further, forestry operations authorised by an IFOA cannot be prevented or interfered with by section 124 of the Local Government Act 1993, which otherwise gives local councils the power to restrain a broad range of activities (s 69Y; see Chapter 8, [8.80]).

Resource security [13.400] A key policy objective of the former Forestry and National Park Estate Act 1998 (now Pt SB, Forestry Act) was to provide certainty regarding access by industry to timber supplies. The

aim was to reduce uncertainty by:

• removing requirements to obtain specific environmental approvals that were subject to public challenge • providing for approvals with a 20 year term (s 69Q). The FNPE Act transferred significant areas of production forest to the conservation estate and thus increased pressure to maintain wood supplies from the remaining areas of working forest. Future rates of logging were pre-determined by granting long term IFOA approvals and by the Forestry Corporation entering into long-term wood supply contracts. This makes it difficult to make additions to the reserve system.

the Forestry Act does not explicitly provide for compensation to industry in the event of restrictions on logging. However, the Corporation's long-term timber supply agreements with timber processors contain terms guaranteeing compensation for restrictions or unavailability of supply.

Varying agreements and approvals [13.420] An IFOA or associated forest agreement can be amended, suspended or revoked at any

time by joint agreement of the relevant ministers (s 69R). There is no requirement for any environmental impact assessment of such a variation or amendment.

Public participation in NSW Forest Agreements (Part 5A, Forestry Act) [13.430] Ministers who are parties to a forest agreement must ensure that the public is given an opportunity to participate in connection not only with the initial making of the agreement (s 69D) but also with any amendment or revocation (s 69F):

• • • •

notice of the proposal must be published in State and regional newspapers the agreement or proposed amendment must be made available for public inspection the public must be invited to make submissions (and given at least 28 days to do so) the submissions must be taken into consideration before the amendments are made.

Public participation not required in IFOAs [13.440] There is no requirement for public consultation when granting, amending or varying IFOAs. However, the relevant ministers must carry out a review of each forest agreement and related IFOA every five years (s 69G(3)). Public comment must be canvassed (s 69G(4)) and a report tabled in Parliament (s 69G(5)). The Minister administering the Environment Protection Authority must report annually to Parliament on each forestry agreement, specifically addressing ecologically sustainable forest management and compliance with IFOAs (s 69H).

• •

Public notification must be given in statewide and regional newspapers of (s 691): the making, amendment or termination of a forestry agreement the grant, amendment, suspension or revocation of an IFOA.

Limits on court action [13.450] Another key aspect are provisions of the Forestry Act that purport to prevent the public from commencing court action to restrain breaches of an IFOA (s 69ZA). In the forestry context, provisions creating third party standing to bring proceedings to restrain breaches or apprehended breaches of a range NSW environmental legislation, (eg, Environmental Planning and Assessment Act 1974, s 123; Protection of the Environment Operations Act 1997, ss 252,253) have been revoked (see Chapter 2, [2.800] for standing to sue, and [3.620] for privative clauses).

Under section 69ZA, members of the public cannot take advantage of statutory provisions that give any person a right to remedy or restrain a breach of legislation to restrain:

• •

a breach of the Forestry Act, Part 5B a breach of a forest agreement or its terms

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• a breach of terms of a licence issued under an IFOA, such as a threatened species licence or an environment protection licence. The effectiveness of this privative clause in attempting to limit the supervisory jurisdiction of state courts may be in doubt following the High Court's decision in Kirk v Industrial Court of NSW (2010) 239 CLR 531. The restrictions on third party enforcement reduce the transparency of government decisionmaking. They raise the possibility that the timber industry may breach environmental laws without fear of third party enforcement actions. Often in the past, it has been public interest litigation that has revealed and proven non-compliance with environmental laws in public forests, rather than the efforts of regulatory agencies. However, although third parties are restricted in bringing proceedings, Ministers and the EPA and some other government agencies can bring proceedings to remedy or restrain breaches (s 69ZA). This means that, in addition to criminal prosecutions, Ministers have the option of civil enforcement (see Chapter 2, [2.710]).

Water pollution [13.460] The Protection of the Environment Operations Act 1997 requires anyone conducting

an activity listed in Schedule 1 to obtain an environment protection licence (see Chapter 9, [9.670]). Logging operations in State forests and other Crown-timber lands are scheduled activities where they involve the cutting and removal of sawlogs or pulplogs from a nonplantation forest west of the Great Dividing Range, if (Protection of the Environment Operations Act, Sch 1, cl 24 ): - at least 20% of the compartment has a slope greater than 18 degrees, and - and at least 30 timber stems are to be removed from each hectare of the harvestable area of the compartment. Access road construction is also a scheduled activity west of the Great Dividing Range. A licence is not automatically required for non-scheduled activities (see Chapter 9, [9.640]), such as maintenance or upgrading of roads, logged areas, log dumps, extraction tracks and snig tracks. However, an incentive is provided to operators of non-scheduled premises to apply for a licence in that those holding licences have a defence if charged with the offence of polluting water (ss 43(d), 122). In addition to these requirements, the Forestry Corporation has other obligations under the Protection of the Environment Operations Act 1997. These include obligations to:

• •

ensure persons associated with the Corporation comply with any licence (s 64) notify and report to the EPA incidents that cause or threaten material harm to the environment (ss 147- 153). That duty extends to employees, agents and principals (s 148). It is an offence not to notify EPA regarding pollution incidents causing or threatening material harm (s 152).

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Case study: Environmental Protection Authority prosecution of Forestry Corporation over pollution [13.470] In Environment Protection Authority v Forestry Commission (NSW)

[2013] NSWLEC 101, the Forestry Corporation was fined $35,000 under the Protection of the Environment Operations Act 1997 in relation to offences of polluting water and breaching its environment protection licence. The Corporation pleaded guilty to the two offences, which arose from a hazard reduction burn in 2011 in Mogo State Forest near Batemans Bay on the NSW south coast. The hazard reduction burn resulted in ash and soil entering water courses and in burning within exclusion zones about water courses. The first offence related to the polluting of waters contrary to s 120(1) of the Protection of the Environment Operations Act 1997. The second offence concerned contravening a condition of a threatened species licence contrary to s 133(4) of the National Parks and Wildlife Act 1974. The case was important because it was the first time in NSW since the Regional Forest Agreements (RFAs) were enacted that there had been a prosecution by a regulator for potential harm to threatened species. It was the first prosecution in the Southern region and was only the second prosecution in NSW under the RFA regime. By agreement with the Environment Protection Authority, the fine was applied to an environmental project to identify and map an endangered ecological community in State forests in the State's south-east.

Timber harvesting in public forests [13.480] While the Forestry Corporation is itself regulated by government agencies in terms of its environmental performance, it too is a regulatory agency when it comes to activities carried out in public forests, such as grazing, camping and taking forest products. Moreover, in practice, timber harvesting is carried out not by employees of the Corporation itself but by contractors, and there are detailed provisions in the Forestry Act regulating harvesting and associated activities.

The Native Vegetation Act 2003 does not apply to land that is a State forest, flora reserve or timber reserve under the Forestry Act 2012. However all clearing of native vegetation on other Crown-timber lands is regulated by the Native Vegetation Act 2003 (Forestry Act, s 44(2)). Clearing licences issued under the Forestry Act (s 43) have a very limited area of application (s 44(2)) (see below, [13.500]).

Harvesting timber and forest products [13.490] It is an offence to cut, obtain, damage or remove timber, or to knowingly allow timber to be cut, destroyed, damaged or removed from Crown-timber lands (including State forests) without a licence (s 38(1)). The offence is punishable with a maximum fine of 50 penalty units and six months' imprisonment plus a penalty of $10 for every tree destroyed or damaged. These provisions do not apply to forestry operations undertaken on behalf of the Corporation (s 38(4)).

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O ther offences include:

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extracting or damaging forest products (non-timber products of trees or shrubs, such as flowers) (s 38(l)(a)(ii))

timber, unless the timber contractor is the holder of a contractor licence (cl 34(2)). The Forestry Corporation requires operators of harvesting machinery to have successfully completed a training course in forest soil and water protection.

extracting or quarrying forest materials in State forests and flora reserves (for example gravel or sand) (s 38(1)(6)).

Conditions are typically attached to licences. For example, there is a requirement to comply with harvesting plans that have been devised for each forest compartment.

A timber licence authorises the holder to take timber on Crown-timber lands (s 40). Forest products licences authorise forest products to be taken on Crown-timber lands (s 41) and forest materials licences authorise forest materials to be taken from State forests (s 42).

The Corporation has the ultimate power to suspend or cancel a contractor's or operator' s licence (cl 36). It is also an offence to breach a condition of a licence punishable with a maximum penalty of 20 penalty units ($2,200).

Clearing licences

Restrictions on licences

•

•

[13.500] A clearing licence authorizes the holder of the licence, or the successor in title to the

land over which the licence is issued, to ringbark or otherwise kill or destroy trees. The authorisation covers such class or description of trees, on such Crown-timber lands, as specified in the licence (s 43 ).

Small quantity authorisations [13.510] The taking of small quantities of timber, forest products or forest materials {such as

firewood) that have a value of less than $1,000 from State forests or Crown land may be informally authorised by the Corporation without granting a licence. However, a small quantity authorisation may not be issued for flora reserves and certain leasehold tenures such as conditional lease purchases (s 45).

(13.540] Timber, forest products, or forest materials licences must not be issued over a flora reserve unless the conditions of the licence are consistent with the working plan for the flora reserve. The Minister must give approval before a licence can be issued in these circumstances (s 44(1)).

• • • • • •

Licensing considerations [13.520] In making a decision to grant a licence, the Corporation must bear in mind its statutory

objectives and functions (ss 10, 11; see [13.170]). Under the objects of the Forestry Act there are environmental protection objectives placed on an equal footing with economic objectives (ss 10(1) and (2); see [13.640]). The environmental obligations of the former Forestry Commission were considered in Evans & Spicer v Forestry Commission (1982) 48 LGRA 266. The NSW Court of Appeal held that it was mandatory for the Commission to consider the environmental impacts of granting clearing licences. Consideration of these impacts was not an irrelevant consideration; it was ''absolutely obligatory" that an officer consider the likely alternative uses of a parcel of land that had been considered for inclusion in a reserve (at 268). On the basis of that decision, in granting timber licences, clearing licences and products licences, the Corporation must take into account the broad environmental context beyond the boundaries of a particular parcel of land and must consider the effects (such as soil erosion) on adjoining areas.

over a State forest unless there is a forest lease (or another lease from the Crown) over land vested in, owned, leased, or held by the Nature Conservation Trust, or land that is under a Nature Conservation Trust Agreement over State protected land (see: Native Vegetation Act 2003) for the purpose of clearing any native vegetation under the Native Vegetation Act 2003 for the purpose of ringbarking or killing trees which have economic value over flora reserves or over Crown timber land which is not within a State forest or timber reserve that is covered by a lease under the Western Lands Act 1901 .

Further, if Crown-timber land is held under a Crown tenure, purchase tenure, or forest lease, a clearing licence can only be issued to the holder, owner, or lessee respectively (s 44(2)(d)).

Forest Practices Code [13.550] The Forest Practices Code - Part 2, Timber Harvesting in Native Forests- State Forests and Crown Timber Lands is not a legislative instrument or regulation, but it gains legally binding effect through the operation of licensing conditions on contractors and operators.

The Code sets out requirements for all aspects of timber harvesting in State forests.

• •

They include: environmental protection measures for soil and water protection of flora and fauna and cultural heritage

• planning for harvesting operations

• Contractor licences

Clearing licences must not be issued (s 44(2)):

harvest plans, operations, tree selection, tree felling, timber extraction and wet weather operations.

[13.530] Those holding timber, products or forest materials licences must ensure that those

Harvest plans

contracted to carry out the actual harvesting hold a contractor licence (Forestry Reg, cl 34(1)). A timber contractor must not harvest timber, or authorise or direct another person to harvest

[13.560] Harvesting operations cannot commence without an approved harvest plan, and a

copy of the plan must be kept on site during operations by the licensee. Harvest plans, devised at

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the "compartment" scale (approx 250 hectares), provide site-specific instructions to those involved in harvesting operations. Compartments are in turn subdivided into smaller areas known as coupes, and a harvesting plan may refer to several coupes at once. The harvest plan is devised by Forestry Corporation foresters and ecologists, and typically maps the following features:

• boundaries of State forest, compartments and coupes • roads, log dumps, drainage features • net harvest area (including zoned areas with modified prescriptions) • non-harvest area (eg steep slope, rainforest or old growth forest) • stream exclusion zones • fauna and flora records (eg record of Yellow-bellied Glider) • cultural heritage sites

Forestry Corporation staff known as superv1smg forest officers (SFOs) prepare forest compartments before logging by marking (with paint or tape) the boundaries and buffer zones and determining which trees are to be retained and which are to be logged, in accordance with the harvest plan. Once logging commences SFOs oversee operations, ensuring compliance with the harvest plan, the Forest Practices Code, the ESFM Plan, IFOA licences (namely three types of licences, relating to water pollution, threatened species and threatened freshwater fish) and regulations.

Royalties [13.570) The holder of a timber licence, a products licence or a forest materials licence must pay the Corporation a "resource acquisition fee" (ie royalty) for the value of timber, products or materials removed under that licence (Forestry Act, s 49). Where the timber is removed from certain leasehold tenures and purchase tenure lands, the Corporation must transfer a portion of the royalty it receives to the holder of the interest (s 5 3).

Approval of non-forestry activities [13.580) Forest permits and forest leases may be granted under the Forestry Act to carry out a range of other activities. The land manager of a forestry area (normally the Forestry Corporation) can issue a forest permit that allows the holder to carry out a range of non-forestry uses. A forest permit authorises the holder to use the forestry area for such purposes (including recreational, sporting or commercial activities) as are specified in the permit (s 60). Ancillary provisions relating to forestry permits impose a number of restrictions and qualifications on their approval and operation (s 61). The land manager of a forestry area within a State forest may lease, on such conditions as deemed appropriate, land within the area for any purpose specified in the lease (s 62(1)). Any such purpose may not be inconsistent with the carrying out of forestry operations in the forestry area concerned and (s 61(2)). Duration and general conditions applying to forestry leases are provided in the Forestry Act (ss 62(3) - (6)).

A land manager of a forestry area may refuse issue a forest permit, grant a forest lease, or refuse to give consent to the transfer of a forest permit or forest lease, for any reason it considers

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appropriate (Forestry Reg, cll 27, 31). A land manager may suspend or revoke a forest permit or forest lease issued or granted by it (s 35). If a land manager refuses to issue or renew a forest permit or lease, or decides to suspend or cancel and permit or lease, the decision can be reviewed by the Civil and Administrative Tribunal (s 89(1)). The Corporation can either prohibit camping within a State forest, flora reserve or timber reserve or allow it subject to conditions displayed on a notice board in the immediate vicinity (Forestry Reg, cl 21). The use of fire is extensively regulated (Forestry Reg, ell 9 - 20).

Penalties and criminal proceedings [13.590) Many offences under the Forestry Act can be dealt with by way of penalty notice (s 85). Criminal proceedings for offences are dealt with by the Local Court (s 84(1)) and must commence within two years of the date of the alleged offence (s 84(2), or two years after the date evidence of the alleged offence first came to the attention of an authorised officer (s 84(3)).

Penalties for the various offences vary. Some offences attract a penalty of up to $5,500 or six months imprisonment, or both. The Court can also order a person who has been convicted of an offence to pay the Forestry Corporation or a land manager compensation for loss or damage to land or property, or costs and expenses incurred by the Forestry Corporation or a land manager in their attempts to prevent or mitigate damage (s 86).

Mining in State forests [13.600) The land within State forests and flora reserves are "exempted areas" in relation to mining under the Mining Act 1992 or coal seam gas activities under the Petroleum (Onshore) Act 1991 (Forestry Act, s 35(1)). This means that they are exempt from mining and coal seam gas activities. However, the Minister for Industry, Resources and Energy can issue an exempted areas consent for the purpose of authorising mining activities in these areas.

The operation of exempted area provisions in relation to State forests and flora reserves cover exploration licences and assessment leases under the Mining Act 1992 (ss 30 and 48) and petroleum titles (exploration licence, assessment lease, production lease or special prospecting authority) under the Petroleum (Onshore) Act 1991 (s 70). The holders such titles cannot, except with the consent of the Minister, exercise any of the rights conferred by these titles in an exempted area. However if a mining company is granted both an "exempted area consent" and an occupation permit then it can proceed in a State forest or flora reserve. This was the case for Hume Coal's exploration in Belangalo State Forest and the same for Eastern Star Gas/Santos CSG activity in the Pilliga State Forest. Fas sicking

[13.610) Fossicking (small-scale search and collection of minerals, gemstones from the surface with hand-held implements) is allowed in most NSW State forests with a permit.

Hunting in State forests [13.620) Under the Game and Feral Animal Control Act 2002 (GFAC Act), hunting for game animals (only) is permitted in NSW State forests that have been officially declared by the forests

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Minister (GFAC Act, s 20). Hunters must obtain a game hunting licence from the NSW Game Council (GFAC Act, ss 16, 21) except where exemptions apply (GFAC Act, s 17), allowing, for example, Aboriginal people to hunt a game animal pursuant to a native title right (see Chapter 19) or the suppression of pests under the Local Land Services Act 2013, Part 10 or Wild Dog Destruction Act 1921 (see Chapter 20). Those seeking a licence are required to belong to an accredited hunting association (GFAC Act, s 19). Game animal is defined to include deer, pheasant, partridge, as well as other introduced animals such as pigs, dogs (other than dingo), cats, goats, rabbits, hare, and foxes (GFAC Act, s 5). It does not include protected species (see [14.640]) or threatened species.

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threatening or intimidating an authorised officer, and imposes a maximum penalty of $5,500 for that offence. Police officers are "authorised officers" under the Forestry Act (s 71).

In some instances protesters against mining or CSG operations on State forest land have been charged under the Inclosed Lands Protection Act 1901 with entering inclosed land without lawful excuse and remaining on inclosed land without lawful excuse. Other relevant law to protest situations is found in the Summary Offences Act 1988, Crimes Act 1900, and Law Enforcement (Powers and Responsibilities) Act 2002.

Review of decisions by the Forestry Corporation and Ministers

Hunters in State forests, and those using firearms, must be licensed under the Firearms Act 1996. It is an offence to hunt and/or kill an animal in a forestry area or to possess or discharge a firearm in a forestry area (Forestry Act, s 68(1)). However there is no offence if the acts are done in accordance with a forest permit or lease or under a prescribed Crown tenure or under a restricted game hunting licence, or in carrying out duties as an employee of the land manager (s 68(2)).

[13.640] If the land manager of a forestry area (usually, but not always, the Corporation, (s 57)) refuses to grant or renew a forest permit or lease, or makes a decision to suspend or cancel a forest permit or lease, that decision can be reviewed by application to the NSW Civil and Administrative Tribunal (NCAT) (s 89(1)). Merits review of decisions under the Forestry Act is not available in the Land and Environment Court (Land and Environment Court Act 1979, s 17). There may be other decisions under other laws that are reviewable in that context.

Hunters who hold a NSW Restricted Game Hunting Licence (R-Licensed) are eligible to apply for written permission to hunt on public land, in declared state forests, ranked in 5 categories, indicating whether the forest is open to all hunting bookings (Category 1), open to certain bookings or closed to general hunting (Category 5). Before licence holders are eligible to apply for written permission to hunt on public land, they must meet additional training requirements.

Civil enforcement of certain conditions of approval can be pursued in Class 4 jurisdiction (Environmental planning and protection civil enforcement) of the Land and Environment Court under section 69S of the Forestry Act (civil enforcement of certain conditions of approval).

Protesting in State forests [13.630] The offences most likely to apply to forest protests under the Forestry Reg include:

• failing to leave a forestry area when requested by an authorised officer (including a police officer) (cll 4, 5) • entering a closed forest area or driving a vehicle in a closed forest area (cl 6) • entering or remaining in a forest area set aside for exclusive use (cl 7) • engaging in a dangerous activity or erecting an obstruction (cl 8) • lighting fires in a forestry area (cl 10, subject to cl 11) • camping in a forestry area (cl 21) • approaching within 100 metres of harvesting or hauling equipment which is being operated (cl 47) • interfering with timber harvesting or hauling equipment (cl 4 7). Authorised officers have powers to remove persons from a forestry area if they are causing a nuisance or inconvenience to others in the area and fail to leave after being requested to do so (cl 5). These offences can be dealt with by on-the-spot penalties (Forestry Act, s 85). For example, the offences under clause 56 attract an on-the-spot penalty of up to $1,000, while the on-the-spot penalty for failing to leave a forestry area is $100 (Forestry Reg, Sch 1). Harsher maximum fines are available where there is a prosecution before the courts. Section 83(1)(c) of the Forestry Act prohibits a person from obstructing, delaying or hindering an authorised officer, and imposes a maximum penalty of $2,200 for that offence. Section 83(2)(a) prohibits a person from assaulting,

Challenges to the legality of government decision making, that is judicial review applications, is subject to some limitations. The public are barred from certain court actions to restrain breaches of an IFOA (Forestry Act, s 69ZA(2)). Only NSW Ministers or the EPA or other specified government persons can do so (s 69ZA(3)). The responsible Minister is required to review the Forestry Act to determine whether its policy objectives remain valid, as soon as possible 5 years after assent to the Act, in other words, soon after November 2017 (s 93).

Access to information [13.650] If the public wish to scrutinise forestry decisions of public authorities they may seek to

gain access to information held by those bodies. If efforts to obtain information informally are not successful, they may wish to consider a formal access application. The Government Information (Public Access) Act 2009 creates a legally enforceable right to access information held by public authorities which include State owned corporations such as the Forestry Corporation. The Corporation is required to publish certain information including a log of disclosures made to the public.

If access is denied there are statutory rights of internal review and failing that, a right to seek review in the NSW Civil and Administrative Tribunal (NCAT) to challenge decisions to refuse or partially refuse access to government information.

Plantation forestry [13.660] Plantations are land on which trees have been planted for timber production. NSW has more than 450,000 hectares of plantations on both public and private land.

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The establishment and management of plantations in NSW is largely dealt with by the Plantations and Reafforestation Act 1999 and its associated Code (which is appended to the Plantation and Reafforestation (Code) Regulation 2001. The Act's objective is to encourage the establishment of timber plantations by providing a strong signal to private investors. There had been a perception in the market that the regulatory process for plantation approval was complex and slow. The Act addressed these concerns by setting up a streamlined process for approval. It removed two main impediments to plantation establishment described by investors in plantation ventures. These were: 1.

the inconsistent requirements of local government relating to development consent under the Environmental Planning and Assessment Act 1979

2.

the requirements under the former Native Vegetation Conservation Act 1997 for consent for the clearance of native vegetation associated with plantation establishment.

The Plantations and Reafforestation Act 1999 aims to provide security for investors. The Act does not give an absolute guarantee that plantation timber may be harvested in all circumstances: rather it creates an integrated regulatory scheme governing plantations and a framework for application of an environmental Code of Practice (s 3 ). There is also project specific legislation for plantation-based industry such as the Visy Mill Facilitation Act 1997 relating to that company's kraft pulp and paper mill near Tumut. This provided for ratification of a timber supply agreement between the company and the state of NSW and modified the law regarding development approval of the mill.

What land is covered? [13.670] The legislation defines a plantation as land on which the trees forming the canopy are predominantly ones that have been planted (s 5(1)). A natural forest cannot be considered a plantation (s 5(2)). However, a plantation includes not only plantings for timber production, but "plantings for any other purpose". This specifically includes, but is not limited, to plantings to address land degradation or biodiversity conservation, and plantings designed to acquire carbon sequestration rights. But it excludes orchards (s 5(1): see [13.660]). The Act applies to plantations on privately owned land as well as those on State forest and other Crown-timber lands (s 5(4)).

The Forestry Act also defines plantation broadly as an area of Crown-timber land (other than a flora reserve) or other land owned by the Corporation on which the predominant number of trees are trees that have been planted (s 4). There are 250,000 hectares of plantations managed by the Forestry Corporation. However the Plantations and Reafforestation Act does not apply to certain areas, including (s 7, Sch 1 ): flora reserves and special management zones under the Forestry Act

• • land protected by SEPP 14-Wetlands (see Chapter 14, [14.370]) • land protected by SEPP 26-Littoral rainforest (see Chapter 14, [14.430]).

Nor does the legislation apply to land within the Sydney Metropolitan Area (from Newcastle in the north to Wollongong in the south); land zoned "residential" (but not "rural-residential"), "village", "township", "industrial" or "business"; areas declared as critical habitat for threatened species; or areas dedicated or reserved under the National Parks and Wildlife Act 1974.

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Types of plantation [13.680] Approval requirements for plantations depend on the type of plantation involved. The

Forestry Act distinguishes three categories of plantation operations: 1.

exempt farm forestry (ss 6, 9; see [13.730])

2.

complying plantations (s 13; see [13. 740])

3.

non-complying plantations (s 14; see [13 .750]).

Broadly, if a plantation is not exempt farm forestry or (in some cases) a pre-existing plantation (see [13.800]), there must be an application for authorisation of all aspects of plantation operations. If there are no establishment operations required {particularly where the plantation is on already cleared agricultural land), approval will be required for only some of the aspects of the operation.

The Plantations and Reafforestation Code [13.690] The Forestry Act applies a Plantations and Reafforestation Code, which attempts to integrate other environmental laws into a single approval process administered by the Minister for Primary Industries. The Code is annexed to the Plantations and Reafforestation (Code) Regulation 2001.

The Code contains the detail of legislative requirements for establishment, management and harvesting of plantations including issues of replanting, regeneration and coppicing. It sets out rules for the management of native vegetation and the protection of Aboriginal places and objects as well as bushfire hazard reduction. Environmental standards relating to the protection of biodiversity, soil, water (eg slope limits for harvesting, buffer zones alongside drainage features and detailed rules regarding road building) are also codified. It also describes management requirements relating to documentation and record keeping (regarding plantations plans and operational plans).

Obtaining authorisation [13.700] Except where exemptions apply (see below), landholders, including the Forestry

Corporation, must apply for plantation authorisation to gain the benefit of the Act' s streamlined regime and to avoid prosecution for operating an unauthorised plantation (ss 9, 64). Before an application can be validly submitted, the proposed site must be visited by an authorised officer to assess soil, heritage and native vegetation issues (s 11). A plantation plan must be submitted as part of the application (s 14(1)). It is an offence to provide false or misleading information in relation to an application for plantation authorisation (s 65). Plantations are authorised by the Minister for Primary Industries) (s 12). Plantation operations include establishment, management or harvesting operations (s 4). Each of these terms is defined in detail in the Act.

If areas of habitat are (or were in the past) set aside to be protected from adverse impacts of plantation establishment operations, it is a condition of authorisation that this habitat not be damaged by other plantation operations such as harvesting (s 20(3)).

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Development consent under the Environmental Planning and Assessment Act 1979 (see Chapter 5) is not required for plantation operations to occur on an authorised plantation (ss 47(1), (2)(a)). However, where an authorisation is granted, the local council must be notified within forty days (s 12(3)). A public register of all applications and authorisations must be maintained and made available on the internet, and must include the identity of the plantation, location and conditions attached (s 23).

Appeals [13.710] An applicant dissatisfied with the Minister' s refusal to grant an authorisation, or with the conditions imposed on an authorisation, or with a deemed refusal (associated with excessive decision making delay) or a decision to cancel an authorisation is entitled to appeal to the Land and Environment Court within 28 days of receiving written notice of the decision (s 24 ). Such appeals are heard as merits appeals in Class 1 of the Court (Land and Environment Court Act 1979, s 17(i)).

Pre-existing plantations [13.720] Operations in plantations that were legally established before the commencement of the Act in December 2001 do not require authorisation (Sch 3, cl 6). However, following amendments to the legislation in 2010, the re-planting of over 30 hectares of a plantation does now require authorisation.

Owners of pre-existing plantations may still decide to seek authorisation in order to gain the benefits of the Act's harvest guarantee regime (s 9(2)). Species impact statements (SIS) are not required when seeking authorisation for an existing plantation (s 15(9)).

Exempt farm forestry [13. 730] A plantation is exempt farm forestry if it is:

• less than 30 hectares in extent • complies with each of the detailed requirements in section 6(1). In such a case, it does not require authorisation, provided that certain criteria are met. These include that: any associated clearing of native vegetation is exempt from development consent requirements under native vegetation legislation (see Chapter 12, [12.1360])

• •

that the harvesting volume does not exceed that specified in the Code for exempt farm forestry (s 6).

Although it is not required, exempt farm forestry may still be authorised under the Act (s 9(2)). Some landholders may elect to seek authorisation in order to gain a guaranteed right to harvest and the benefit of its protection from selected provisions of other environmental laws, particularly threatened species legislation (see [13.380]).

Complying plantations [13.740] Complying plantations are plantations whose establishment complies with relevant complying development standards of the Plantations and Reafforestation (Code) Regulation 2001 (NSW) (Code). An application for authorisation must still be made but a species impact

[13.760)

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statement is not required and if the plantation complies with all conditions in the Code, the Minister must grant an authorisation (s 13). Authorisation is automatically subject to a condition that establishment operations comply with the relevant development standards set out in the Code.

• • •

The development standards in the Code relate to: soil and water protection, mainly through slope limits and buffer zones cultural heritage protection, through requirements for buffer zones around Aboriginal places or objects (see Chapter 20, [20.730]) biodiversity protection, mainly through retaining ecologically significant native vegetation such as rainforest, habitat trees and high conservation value native grasslands.

The Minister can also make a listing of regionally significant vegetation that must be protected in the course of plantation establishment (Code, cl 25). The Code sets out requirements for plantation management operations, particularly in relation to:

• preparation of operational management plans and records • location of roads, tracks, and crossings • methods of road construction, drainage and maintenance. Non-complying plantations

[13.750] All other applications are dealt with as non-complying applications (s 14 ). Even an otherwise compliant plantation can be dealt with as a non-complying application if the Minister decides that special circumstances exist (s 13(5)). Assessment is more rigorous: the applicant must

provide a statement outlining the extent of proposed compliance with the code (Code, cl 13(1)) as well as a statement of environmental effects for those plantation operations that do not comply (s 14(2)). A species impact statement is also be required where the Minister believes that the proposal is likely to significantly affect threatened species, populations or ecological communities, or their habitats (s 15: see Chapter 12, [12.150] ), and if this is the case then the concurrence of the Director-General of National Parks and Wildlife is required (s 15(4)). The local council and adjacent owners must be consulted (s 14). Authorisations are likely to be subject to conditions required to mitigate any non-complying aspects (s 20).

Clearing for plantations [13.760] The Plantations and Reafforestation A ct 1999 provides a separate regime to the Native Vegetation Act 2003 (see Chapter 12, [12.1360]) for the control of native vegetation clearing in the course of plantation establishment. The exemption from the Native Vegetation Act 2003, including the requirement to obtain approval under that Act, is only applicable to plantation operations on an authorised plantation where operations are conducted in accordance with the conditions of an authorisation. Clearing must also comply with the terms of the Code (Native Vegetation Act, s 25(n)).

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When must authorisation be obtained? [13.770) Under the Plantations and Reafforestation Act 1999, landholders _ca~not wait u~til after vegetation clearance operations have been completed to obtain an authonsat1on. Plantat10n operations which require authorisation include establishment operations, which are (s 4 }:

activities carried out for the purpose of establishing a plantation, for example, the clearing of land, the use of pesticides, herbicides and fertilizers ... and the planting of trees or shrubs. Carrying out clearing operations on an unauthorised plantation is an offence (s 9(3)). The Minister has the power to refuse the authorisation of plantations on illegally cleared land (s 17(2)).

Protecting wildlife values after authorisation [13.780] Part 4 of the Plantations and Reafforestation Act 1999 sets out its own provisions for the protection of unique or special wildlife values on plantations that have been authorised, replacing the regimes in a number of pieces of legislation discussed immediately below.

Unique or special wildlife values are defined to cover the likely presence of listed endangered species (vascular plants, amphibians, birds, mammals or reptiles, but not, for example, insects) and ecological communities. Owners and managers of authorised plantations have a duty to notify the Minister as soon as they become aware that plantation operations are likely to have an impact on these values (s 33). The Minister must immediately arrange for an evaluation and report, and can order the suspension of operations (s 34 ). After considering the report, the minister may restrict, suspend or ban plantation operations altogether in order to protect the values (s 35(1)). Financial compensation is available to owners or managers of a plantation who have suffered a direct financial loss as a result of this. The amount of compensation is determined by agreement with the Minister (s 36).

Exemptions for authorised plantations from other approvals [13.790] Plantation operations on authorised plantations and exempt farm forestry are exempt from all of the provisions of the Environmental Planning and Assessment Act 1979 (Plantations and Reafforestation Act 1999, s 47). Specifically, environmental assessment and approval under Parts 4 and 5 of that Act (see Chapters 5, 6) is not required (ss 47(2)(a), (6)). Further, "plantation operations carried out on an authorised plantation cannot be prohibited or restricted" by an environmental planning instrument (s 47(2)(c)). Tree preservation orders made by local councils have no application to clearing in the course of establishing an authorised plantation or exempt farm forestry.

In addition, anyone carrying out plantation operations on an authorised plantation is exempt from certain provisions of the National Parks and Wildlife Act 1974 and the Threatened Species Conservation Act 1995, including threatened species offence provisions and stop work orders (ss 15, 48: see Chapter 12, [12.670]).

The Act also excludes the operation of:

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• orders under section 124 of the Local Government Act 1993 (s 51) • protective orders made under the Heritage Act 1977 (s 50: see Chapter 17, [1 7.100]) • requirements for a controlled activity approval under the Water Management Act 2000, but not water access licences, water use approvals and water supply works approvals (s 52; see Chapter 14, [14.1180])

• soil conservation notices under the Soil Conservation Act 1938 (s 53: see Chapter 11, [11.440]) • various provisions in the Fisheries Management Act 1994 (s 49). Exempt farm forestry

(13.800] Exempt farm forestry is only exempt from the prov1s1ons of the Environmental

Planning and Assessment Act 1979 (unless a plantation authorisation has been secured as a precautionary measure). Legislation relating to threatened species still applies. Therefore there is a risk that clearing of native vegetation to establish a small farm plantation may involve the criminal offences of "picking" threatened plant species or damaging the habitat of a threatened species, an endangered population or an endangered ecological community (National Parks and Wildlife Act 1974, ss 118A, 118D: see Chapter 12, [12.150]).

Plantations on public land [13.81 O] The Forestry Corporation must comply with the provisions of the Plantations and Reafforestation Act 1999 (Plantations and Reafforestation Act) (s 4) where plantations are located in State forests or on Crown-timber lands (s 7). The integrated forestry operations approvals (IFOA) regime provided for by Part 5B of the Forestry Act does not apply to forestry operations on plantations (Forestry Act, s 69K(2)(b)).

The owner and manager of an authorized plantation must ensure that plantation operations are carried out in accordance with any provision of the Plantations and Reafforestation Code applying to the plantation (Plantations and Reafforestation Act, s 31(1). In the case of an authorised plantation which is a State forest or other Crown-timber lands, this requirement is a condition of any relevant licence, lease or other authority under the Forestry Act (Plantations and Reafforestation Act, s 31(2)). In addition to complying with the Plantations and Reafforestation Code, the Forestry Commission applies its own Forest Practices Code for Plantations to its contractors and employees. This Forest Practices Code Part 1 - Timber Harvesting in Forests NSW Plantations (2005) governs harvesting and haulage operations throughout the Commission' s softwood and hardwood plantations. This document covers occupational health and safety requirements as well as environmental protection obligations. The Commission imposes conditions in licences of operators (Forestry Act, s 39(2)) requiring them to conduct harvesting in accordance with the Code.

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[13.850]

chapter 13 Forests and plantations law

Water pollution

Enforce ment

[13.820] Timber getting and access road construction in a compartment in a timber plantation is

(13.840] It is an offence to carry out plantation operations on a plantation or proposed

not a scheduled activity under the Protection of the Environment Operations Act 1997, either on private land or State forest/Crown-timber lands (cf Schedule 1, item 24). While occupiers of scheduled premises must hold an environment protection licence, a licence is not automatically required for non-scheduled activities (see Chapter 9, (9.670]). However, an incentive is provided to operators of non-scheduled premises to apply for a licence in that those holding licences have a defence if charged with the offence of polluting water (ss 43(d), 122). As a matter of practice licences are held by the Forestry Corporation for plantation activity. There are four such licences covering various regions of NSW (Protection of the Environment Operations Act, s 43 ). In combination with the Plantations and Reafforestation Code (cll 15 - 18), the conditions attached to environment protection licences cover issues including:

plantation without authorisation (Plantations and Reafforestation Act, s 9) or in breach of the conditions of an authorisation (s 20(6)). The maximum penalty is $110,000 plus $11,000 per day of a continuing offence.

• soil conservation measures for the design of bridges, culverts and causeways • appropriate drainage spacings on roads and skid tracks • seasonal harvesting restrictions • slope restrictions for harvesting and road construction activities • wet weather restrictions on the use of roads and log landings • mass movement hazard conditions

• soil dispersibility conditions

• protection of drainage features by the use of filter strips and/or buffer strips.

The Plantations and Reafforestation Code contains many detailed soil and water protection provisions directed at preventing water pollution from plantation forestry (eg buffer zones for drainage features, location of new roads and tracks (ell 5 - 18, 29 - 41)). Water pollution incidents may involve offences against the plantation legislation or regulations depending on the conditions attached to a plantation authorisation.

Use of chemicals [13.830] The use of pesticides in NSW forests is regulated under the Agricultural and Veterinary Code (Agvet Code) and the Pesticides Act 1999 (see Chapter 10, [11.560]) . The use of chemicals that may cause water pollution is also subject to the general terms of the Protection of the Environment Operations Act 1997 (see Chapter 9, (9.670]).

Atrazine and sirnazine, for example, are selective systemic herbicides used in plantation forestry. Atrazine is often used to suppress weed competition during plantation establishment, or to create firebreaks around plantations. Instances of drinking water contamination have occurred in some states and overseas. Third parties affected by chemical pollution of ground or surface water could pursue common law remedies (eg nuisance: see Chapter 2, [2.160]). Atrazine and simazine have both been nationally registered for use by the Australian Pesticides and Veterinary Medicines Authority, following an evaluation. The registration of atrazine was reviewed between 1995 and 2008. Its continued sale was permitted provided that further label instructions were added to reduce the risk of atrazine entering waterways.

The owner and manager of an authorised plantation must ensure that plantation operations are carried out in accordance with any relevant provisions of the Plantations and Reafforestation Code (s 31). It is an offence for an owner or manager of an authorised plantation to contravene requirements of the Plantations and Reaofforestation Code in relation to management or harvesting operations, with a maximum penalty of $11,000 (Plantations and Reafforestation (Code) Regulation 2001, Appendix, cl 66). Offences against the Act are summary offences that can be prosecuted in either the Land and Environment Court or the Local Courts (s 64). Proceedings can only be brought by the Minister or with the Minister's approval, and must commence within two years of the alleged breach (s 64(4)) . Where a person clears native vegetation without prior approval under either the Native Vegetation Act 2003 (see Chapter 12, (12.1360]) or plantation authorisation under the Plantations and Reafforestation Act 1999, they run the risk of committing offences against both Acts. In sentencing an offender in Department of Environment and Climate Change v Wilton (2008] NSWLEC 297, the Court took into account the fact that the defendant would obtain a financial advantage by clearing vegetation in order to establish a native hardwood plantation near Bombala. Biscoe J remarked: "A fine is not a mere license fee for the making of profits by unlawful means." On that basis an amount of $10,000 was added to the penalty imposed, with the object of negating the net financial advantage that the defendant otherwise would obtain. Civil enforcement proceedings to restrain or remedy breaches of the Plantations and Reafforestation Act can only be brought by the Minister (s 57(1)) - a significantly different approach from other NSW environmental legislation, which usually provides open standing for third party civil enforcement (see Chapter 2, (2.800]) . However, this would not prevent those wishing to enforce the legislation from bringing proceedings under section 253 of the Protection of the Environment Operations Act 1997, which gives broad rights of standing to restrain a breach of any legislation provided that there is a likelihood of environmental harm being caused (see Chapter 7, [7.780]) . The Minister can also make stop work orders (s 58) and issue directions to undertake remedial works (s 59) and has power to authorise investigations into the extent of compliance with the Act and Code.

Forests, plantations and carbon sequestration (13.850] When plants in a forest grow, they use the natural process of photosynthesis, whereby they convert carbon dioxide from the atmosphere into oxygen and glucose (sugars) (and thence to cellulose and other organic compounds) using the energy from sunlight in a chemical reaction. In this way trees store (or sequester) carbon dioxide from the atmosphere, capturing it within the structure of the tree. Growing terrestrial vegetation absorbs carbon dioxide from the atmosphere, forming natural carbon dioxide sinks or reservoirs.

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With growing concerns about human induced climate change due to an increase in carbon dioxide in the atmosphere, it has been recognised that natural processes of carbon sequestration associated with living and growing forests could potentially be used to reduce the amount of carbon dioxide. It is hoped that existing forests and new "carbon forests" will delay human induced climate change. Hence the term "carbon forestry", ie forestry with the primary aim of carbon storage. Depending on the strength of the price signal offered by various segments of the carbon market, there are indirect financial incentives to plant trees for carbon sequestration (particularly in the plantation sector) in order to generate "carbon credits" for sale. At present the strongest incentives in NSW for carbon forestry are in the voluntary carbon offset market, and in the compliance market under NSW law (the Greenhouse Gas Reduction Scheme). In the longer term, there may also be incentives generated under a Commonwealth carbon-pricing law enacted to implement obligations under international law (the Kyoto Protocol to the United Nations Framework Convention on Climate Change: see Chapter 10, [10.20]).

International carbon accounting [13.860] The Kyoto Protocol provides that removal of carbon dioxide from the atmosphere by carbon sinks can be used in order to meet the commitments of developed country (Annex 1) parties. In other words, some - narrowly defined - carbon forestry projects can be used to offset industrial, energy and transport sector emissions. In particular, Article 3.3 provides that: net changes in greenhouse gas emissions by sources and removals by sinks resulting from direct human-induced land-use change and forestry activities, limited to afforestation, reforestation and deforestation since 1990, measured as verifiable changes in carbon stocks in each commitment period, shall be used to meet the commitments under this Article of each Party included in Annex I.

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federal carbon tax coming into force in July that year (though Part SA of the Electricity Supply Act 1995 remains in force). Crucial detail was found in the Electricity Supply Regulation 2001 (repealed on 1 September 2014) and Benchmark Rules. The Rule of most relevance to carbon forestry was the Greenhouse Gas Benchmark (Carbon Sequestration) Rule (No. 5 of 2003). The Regulation (cl 73GA) and the GGAS Carbon Sequestration Rule provided opportunities for forest owners and managers to create carbon credits, in the form of NSW Greenhouse Abatement Certificates (NGACs) by sequestering carbon dioxide in some forests. The Scheme imposed obligations on all NSW electricity retailers, known as Benchmark Participants, to reduce a portion of the greenhouse gas emissions attributable to their sales/consumption of electricity in NSW. The Scheme also included certain other parties, including large electricity users who elected to manage their own benchmark, and required them to reduce their greenhouse gas emissions by meeting a target. They did this by purchasing and acquitting NGA Cs created by accredited Abatement Certificate Providers (ACPs) who undertook activities that: sequestered carbon in forests; reduced emissions from existing generators; generated electricity using low emission technologies; improved energy efficiency; or reduced emissions from industrial processes in large energy consuming industries. Electricity retailers and generators could earn emissions reduction credits for bringing their emissions below a nominated baseline or benchmark level of emissions, and were penalised if they fail to do so. To avoid penalties and to reduce their emissions liability at the least cost, electricity generators could purchase NGACs from the forestry sector (or other providers). The level of compliance by both Benchmark Participants and ACPs during the life of GGAS was high. Over 144 million abatement certificates were created, representing a similar number of tonnes of carbon dioxide equivalent of greenhouse gas abatement achieved (see http:// www.ipart.nsw.gov.au/Home/Industries/Electricity/Greenhouse_Gas_Reduction_Scheme).

(See further: Art 3.4, 3.7) Afforestation is the establishment of a forest or stand of trees in an area where the preceding vegetation or land use was not forest . Afforestation differs from reforestation because afforestation involves a land use change - establishment of forest on land that was formerly not forested, whereas reforestation involves re-establishment of forest on formerly forested land. Principles governing carbon accounting in the forests sector have been decided upon by the Parties to the Kyoto Protocol, in particular in the Marrakesh Accords. The Accords and subsequent decisions contain a series of principles designed to ensure that carbon credits cannot be earned for natural removals of CO2 from the atmosphere that would be occurring anyway.

Forestry and NSW Greenhouse Gos Reduction Scheme [1 l.870] In 2002 legislation was enacted in NSW to establish the NSW Greenhouse Gas Reduction Scheme (GGAS), which was primarily designed to reduce greenhouse gas emissions in the electricity generation sector. The Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Act 2002 introduced a new Part SA - Reduction of greenhouse emissions - to the Electricity Supply Act 1995, which contains the provisions relating to GGAS. GGAS commenced on 1 January 2003 and was the first mandatory greenhouse gas emissions trading scheme in the world. The NSW Government closed the Scheme on 30 June 2012, with the

Carbon sequestration rights in plantations [13.880] Over the long term in NSW, the carbon sink sector of the plantation industry may lead to a major expansion of the plantation estate. As already discussed ([13.660]), plantations under the Plantations and Reafforestation Act 1999 include trees planted "for the purpose of acquiring or trading in carbon sequestration rights" (s 5(1)(6)) . Complementary to this, the Carbon Rights Legislation Amendment Act 1998, established carbon sequestration rights as a form of forestry right under the Conveyancing Act 1919. Forestry rights are discussed in detail below at [13.1020]. Carbon sequestration rights are a legal device to facilitate the generation of carbon credits for sale.

Private native forestry [1 l.890] Forestry in native forests on private land in NSW is governed by different law to that applying to plantation forestry or to public forestry. "Private native forests" are non-industrial (non-plantation) forests of native species on privately owned land. Private native fo restry (PNF) refers to forestry activity within such forests.

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Where does private native forestry occur? [13.900] There are two main categories of private native forestry:

1.

where intensive timber harvesting is a major land use

2.

where forestry is incidental to primary production such as sheep and cattle grazing.

Most private timber extraction in NSW centres on the north-east and coastal NSW. Private native forests comprise 46% of the area of commercial forest types in Upper and Lower North-eastern NSW. There is also significant river red gum logging in the south-west and cypress and ironbark logging in the central west. A relatively small proportion of the moist coastal and tableland eucalypt forests and rainforest are privately held. On the other hand, a greater proportion of drier forest types (approaching 40%) are privately-owned.

Extent of logging on private land [13.910] Traditionally, extraction of timber resources from private land has provided around

25-35 % of annual sawlog production in NSW. However more recent government documents (2010) state that 50% of all hardwood extracted in NSW comes from private land. Reductions in the area of public forest available for harvesting due to the RFAs had the unintended consequence of displacing logging to private land. There is evidence that sawmills in both southern and north-east NSW have augmented their wood supply with timber from private land when access to public forests has been restricted.

Management of private and leasehold forests [13.920] As a general rule, the Forestry Corporation has no control over forestry on freehold lands. The situation is more complex in relation to Crown leasehold land and lands over which the Corporation holds profit a prendre timber rights (see [13.1050]). The Corporation has also purchased private property and arranged to obtain timber from private property (see [1.350]).

The Forestry Corporation is, however, empowered to compel persons involved in timber dealings - eg from private land - to provide forestry statistics (Forestry Reg, cl 49). It is an offence to remove timber from land (other than Crown timber lands ) on which it was cut or obtained unless it is branded (cl 39). Use of Forestry Corporation brands (a broad arrow sometimes with the letters FC or RP) is restricted to Corporation employees (cl 41). Private property timber can be branded PP (cl 39). It is an offence to misrepresent timber brands and markings in terms of whether they were cut on Crown-timber lands (cl 40) or to deface Corporation brands on timber (cl 43).

The Native Vegetation Act 2003 and private native forestry [13.930] The primary law regulating private native forestry (PNF) in NSW is the Native

Vegetation Act 2003, administered jointly by the Office of Environment and Heritage (OEH), the Environment Protection Authority (EPA) and Local Land Services (LLS). The general rules relating to clearance of native vegetation are discussed in detail in Chapter 12 ([12.1360]-

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chapter 13 Forests and plantations law

[12.1430]). The discussion here focuses on the variations to those rules which apply to PNF in the areas to which the Native Vegetation Act 2003 applies (see [12.13 70]-[12.14 70]). Logging falls within the Act's definition of clearing: "cutting down, felling, thinning, logging or removing native vegetation" (s 7(a)). Private plantations and woodlots are not subject to control under the Act as the "harvesting or other clearing of native vegetation planted for commercial purposes" is a "routine agricultural management activity" and therefore exempt from consent requirements (ss 11, 22). Much of the detail concerning the administration of the NV Act is contained in the Native Vegetation Regulation 2013. The Native Vegetation Regulation 2013 defines PNF (cl 3) as: the management of native vegetation on privately owned land or Crown land that is not Crown-timber land within the meaning of the Forestry Act 2012 for the purpose of obtaining, on a sustainable basis, timber products (including sawlogs, veneer logs, poles, girders, piles and pulp logs). There is, however, no definition of "on a sustainable basis". Under the Native Vegetation Act 2013 and Native Vegetation Regulation 2013, PNF operations can only be undertaken with an approved private native forestry property vegetation plan (PNF PVP) and must be in accordance with the Private Native Forestry Code of Practice (ss 29, 32; Forestry Reg, cl 22). A PNF PVP is a legally binding agreement between a landholder and the Environment Protection Authority (EPA). Both the Regulation and Code of Practice were reviewed in 2013, resulting in the repeal of the previous 2005 Regulation and changes to the PNF Code of Practice for Northern NSW (Forestry Reg, cl 21(a)). A number of changes to the Regulation affect all PNF property vegetation plan (PVP) landholders, including expansion of the definition of PNF to include Crown land that is not Crown-timber land, which will allow landholders with these types of Crown leases to obtain a private native forestry PVP. PNF was previously defined under the 2005 Regulation to include only privately owned land. The Minister for the Environment can make a natural resource management plan (Forestry Reg, cll 58, 61) to identify trees that have regrown following private native forestry as "protected regrowth" (s 10) on steep or highly erodible land or protected riparian land. The Regulation also identifies "critical environmental area" in relation to a private native forestry PVP, which means any of the following areas to which the PVP applies (Forestry Reg, cl 23):

• riparian exclusion zones • old growth forest • rainforest • steep land (that is, land with a slope greater than 30 degrees).

Activities on land not in a critical environmental area, to which private native forestry PVPs apply, are controlled by clause 47 of the Forestry Regulation. Clause 48 controls activities on land to which private forestry PVPs apply in critical environmental areas. In both cases, the controls make a distinction between routine and non-routine agricultural management activities. Private native forestry PVP landholders clearing under the rural infrastructure routine agricultural management activity in non-critical environmental areas are now required to

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implement minimum tree retention rates set out in clause 4.2 of the PNF Code of Practice (Forestry Reg, cl 74(4)). The change does not apply in critical environmental areas (riparian exclusion zones, old growth forest, rainforest or on steep land) because these areas are already protected from logging under the PNF Code.

What approval is required? [13.940] In general terms, the Native Vegetation Act 2003 provides that, subject to exceptions, native vegetation must not be cleared (s 7(a)) except in accordance with a development consent under Part 4 of the Environmental Planning and Assessment Act 1979 (subject to the provisions of the Native Vegetation Act 2003) or a property vegetation plan (PVP) (s 12(1); see Chapter 12, [12.1480]). The general position is that approval for broadscale clearing (clearing of any native vegetation that is not unprotected regrowth: ss 8, 9) can only be granted where the PNF proposal is likely to improve or maintain environmental outcomes (ss 14; 29). Regrowth on certain areas of vulnerable (land mapped as steep or highly erodible or protected riparian land: see Chapter 10) is protected regrowth, requiring clearing approval (s 10(1)(c)); Native Vegetation Regulation 2013, ell 58, 61).

Private native forestry (PNF) falling within the definition of broadscale clearing is not assessed under the Environmental Outcomes Assessment Methodology (see Chapter 12, [12.1560], ell 15, 16) to ensure that it meets the Act's requirement that it improve or maintain environmental outcomes, usually through offsets, before it can be approved. Rather the Regulation provides that PNF is taken to meet this requirement if it is carried out under a PVP in accordance with the PNF Code of Practice (cl 22(1)). A private native forestry PVP must comply with the PNF Code (cl 22(2)). These provisions do not apply in relation to the clearing of native vegetation with development consent (cl 22(4)). The Minister has the discretion to approve a minor variation of the PNF Code in its application to a private native forestry PVP (cl 23). The provisions are therefore heavily weighted towards processing PNF proposals through PVPs rather than development consents. A PVP proposal that sought to pursue the latter route would have to show that it improved or maintained environmental outcomes (Native Vegetation Act, s 14( 3)) without the benefit of the presumptions in the Act, and without being able to rely on offsetting, which is only permitted under PVPs. There are no assessment procedures, guidelines or policies in place to facilitate development applications outside the PVP process. Departmental publications encourage the PNF industry to develop PVPs rather than seeking one-off consents. One reason is that plans may last up to 15 years, thus offering a limited form of resource security to those carrying out PNF (s 30(1)). However, issues may arise where the land changes hands. While the Act insists that a PVP continues to operate despite a change in landholders (s 30(4)), there is no requirement that PVPs be registered with the Registrar-General to give notice of their existence and to make them binding on future landholders (s 31). Registration requires the landholder's consent. Between 2008 and 2014 there were 463,770 hectares of forest subject to an PVP for private native forestry. Under the Native Vegetation Act 2003 the Minister is required to make information relating to the approval Private Native Forestry Property Vegetation Plans (PNF PVPs) publicly available. This is achieved via a searchable register on the EPA website.

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Exempted activities [13.950] Certain PNF activities do not require approval. PNF in unprotected regrowth is exempt, unless a PVP provides otherwise (s 19). In addition, routine agriculture management activities, such as the collection of firewood for non-commercial purposes, are exempt (ss 11, 22) as is the continuation of existing farming activities, particularly existing cultivation, grazing or rotational farming practices (s 23). See Chapter 12, [12.1590]. Timber cannot be obtained from land subject to a PNF PVP for use in the construction of rural infrastructure (eg fencing) (Native Vegetation Regulation, ell 47, 48).

Private Native Forestry Code of Practice [13.960] The PNF Code of Practice comprises four parts applying to: Northern NSW, Southern NSW, River Redgum Forests (effectively, south-western NSW) and Cypress and Western Hardwood Forests (effectively, Central western NSW). Gazetted in February 2008, changes to the Northern NSW Code of Practice were gazetted in August 2013 following a review of the Native Vegetation Regulation and PNF Code of Practice. (Native Vegetation Regulation, cl 21). To help landholders apply the Code during forestry operations the EPA has developed a number of guidelines (see http://www.epa.nsw.gov.au/vegetation/nativeforestry.htm).

An application for approval of a private native forestry PVP that proposes broadscale clearing is not to be granted by the Minister unless the PVP: (a)

adopts the PNF code of practice, and

(b)

provides for the clearing to be carried out in accordance with the PNF code of practice (Native Vegetation Regulation, cl 22)

Even though subject to the PNF code of practice, it is difficult to see how broadscale clearing of native forest can equate to improving environmental outcomes. The Code restricts logging in sensitive areas including old growth forest and rainforest, endangered ecological communities and populations, and certain landscape features such as wetlands, heathlands, rocky outcrops, steep slope lands. It also provides selective protection for "protected trees" including habitat trees (ie hollow bearing trees, roost and nest trees, feed trees, food resource trees) as well as grass trees, forest oaks and Banksia. There are specific requirements for certain threatened species. These are found in Listed Species Ecological Prescriptions appended to the Code. Associated with the PNF Code and PVP obligations is a requirement for the preparation of a harvesting plan, or "Forest Operation Plan" (FOP). A FOP is a detailed plan of all the forestry operations occurring on the land where a PNF PVP has been issued. This plan and associated map must contain details about the forest (type and condition), proposed harvesting (intensity and methods), planned regeneration, environmental protection measures and road planning. A copy of the FOP must be available on site during all forestry operations and must be read, signed and dated by the landholder and all forestry operators. The Code obliges annual reporting to the EPA regarding proposed and/or completed PNF operations. Landholders are required to report to the EPA if they have performed PNF operations in the previous year, or if they plan to undertake PNF operations in the coming year.

In practice, EPA provides the landholder with a map showing areas of old growth forest, rainforest and known listed threatened species records within 10km of the property from the

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NSW Wildlife Atlas. The mapped areas of old growth forest and rainforest are derived from the now dated Comprehensive Regional Assessment Aerial Photo Interpretation Project (CRAFT!) data (1995-1998). The landholder can either accept the old-growth mapping or apply to the EPA for evaluation and new growth stage mapping. This is important because under the PNF Code, forestry operations, apart from maintenance of existing roads, must not occur in rainforest or old growth forest. "Rainforest" includes all areas of rainforest mappable at a 1:25,000 scale. It also includes areas exceeding 0.5 hectares occurring as isolated clumps or lineal strips of rainforest trees. The Code contains an old-growth protocol and a rainforest protocol. The former, for example, provides the agreed protocol for identifying and validating areas of old-growth forest on private land. Once these areas of forests are identified they are then excluded from the area available for timber harvest. Logging in endangered ecological communities (see Chapter 12, [12.150]) is purportedly possible in Northern NSW under the PNF Code for that region. Forest operations may occur in endangered ecological communities as part of an Ecological Harvesting Plan approved by the Chief Environmental Regulator of the Environment Protection Authority. Existing roads may be maintained without such a Plan.

Exemptions from other approvals [13.970) The provisions of the native vegetation legislation have been granted biodiversity certification with the consequence that PNF carried out under a PVP is exempt from the offence provisions of the National Parks and Wildlife Act 1974, including picking threatened species and damaging the habitat of threatened species, endangered populations or endangered ecological communities (Threatened Species Conservation Act 1995, s 126D; see Chapter 12, [12.150]). Even where approval is sought through the development consent route, requirements in the Environmental Planning and Assessment Act 1979 (ss 78A, 78B) for species impact statements and consultation between Ministers are waived (Native Vegetation Act, s 14(4)).

Compliance [13.980) Anyone carrying out PNF without a PVP (or development consent), or in breach of the

provisions of a PVP, including the PNF Code, is liable to a fine of up to 10,000 penalty units plus 1,000 penalty units per day for a continuing offence (Native Vegetation Act, s 12(2); Environmental Planning and Assessment Act 1979, s 126). Apart from this, anybody can bring civil proceedings to remedy or restrain a breach of the Act (Native Vegetation Act, s 41), and this could lead to an order to plant new trees and vegetation and maintain them to a mature growth, as well as providing financial security to ensure this is achieved. EPA officers have some powers to conduct audits to ensure that the PNF operations are being carried out in accordance with the PNF Code. However, their entry and inspection powers are constrained by a requirement for landholder permission or specific authorisation from the Director-General (CEO of the EPA) (Native Vegetation Act, s 35).

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chapter 1 3 Forests and plantations law

Approvals required under other legislation Local environmental plans [13.990) As already emphasised, securing an approved PVP for PNF is an alternative to

obtaining development consent ([12.1480] ). While this is a development consent under Part 4 of the Environmental Planning and Assessment Act, it is issued under the Native Vegetation Act. There is nothing, however, in the Native Vegetation Act preventing development consent being required under the provisions of an environmental planning instrument, such as a local environmental plan (see Chapter 3) in addition to approval under the Native Vegetation Act. Indeed private native forestry in particular areas could be prohibited altogether. The only limitation imposed by the Native Vegetation Act is that once approval has been given to PNF under that Act, through either a property vegetation plan or a development consent, subsequent environmental planning instruments cannot prohibit or restrict it (Native Vegetation Act, s 17). In other words, depending on the locality, there may be situations in which dual approvals are required for PNF activity - one from the EPA in the form of a PVP, and another, a development consent from council, depending on the provisions of the LEP. This in turn depends on the consent requirements applicable to the particular zoning of the land. As a generalisation, in the main rural zone (RUl Primary Production)), many councils on the north coast of NSW do not require applications for development consent under their LEPs; most councils on the south coast and in the Illawarra, where there is less PNF, do. However in environment protection zones, more councils either require consent to be sought or prohibit forestry altogether. Under the Standard Instrument LEP (see Chapter 3, [3.100]), the tree protection order provisions (cl 5.9) would not cover PNF carried out under a PVP or a development consent issued under the Native Vegetation Act.

Water pollution control [13.1000) PNF is not a scheduled activity and therefore does not automatically require an environment protection licence under section 48 of the Protection of the Environment Operations Act 1997. A licence is not automatically required for non-scheduled activities (see Chapter 9, [9.870]). However, an incentive is provided to operators of non-scheduled premises to apply for a licence in that those holding licences have a defence if charged with the offence of polluting water (ss 43(d), 122).

The EPA appears not to encourage applications for licences for non-scheduled forestry activities. Possible reasons for this are:

• •

that it would be difficult, because of limited resources, to regulate logging by licensing on private as well as public land that the EPA will "generally oversee" and will investigate on a case by case basis if a serious pollution incident comes to its notice.

Commonwealth low and private forestry operations [13.101 OJ Where PNF is taking place in a region not subject to a Regional Forest Agreement (for

example, Central and Western NSW, river red gum forests) approval under the Environment

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[13.1020)

Protection and Biodiversity Conservation Act 1999 will be required where it is likely to have a significant impact on a matter of national environmental significance (see Chapter 12, [12.230]). For example, the possible presence of Commonwealth listed endangered species (such as the Regent Honeyeater) or ecological communities (such as the Grey Box Grassy Woodlands and Derived Native Grasslands) may trigger the requirement for an approval.

Forestry rights on private land [13.1020] Legislation exists in NSW to encourage investment in forestry through purchase and trade in statutory "forestry rights". These extend the common law device of a "profit a prendre". A profit a prendre is a right to take natural produce, for example timber and forest products, from another person's land. It is different to a contract to supply timber, which is usually accompanied by a licence to enter and harvest. Although a profit a prendre is usually created by a contract, it binds future purchasers of the land, providing the holder with greater resource security. It can also be sold.

Forestry rights are created under the Conveyancing Act 1919. A forestry right under this Act is either a right to enter land owned by another and establish and/or maintain and harvest a crop of trees or a carbon sequestration right (s 87A). A carbon sequestration right is a right "to the legal, commercial or other benefit (whether present or future) of carbon sequestration by any existing or future tree or forest on the land after 1990" (s 87A). Forestry rights are deemed to be profits a prendre (s 88AB). The provisions do not distinguish between native forests and plantations, and can be applied in either context. The traditional doctrine is that land ownership includes ownership of the trees growing on it. "Land" is normally defined to include the soil and surface layer of the earth and all physical things, such as trees, that are attached to or are inherent in the ground. The prime purpose of "forestry rights" is to create a legal tool by which the right to harvest trees on a parcel of land can be acquired by agreement from the landowner by the Forestry Corporation or a forestry company. The ownership of trees is separated from ownership of the land on which they are growing. This is intended to encourage increased levels of investment in forestry, as investors no longer need to allocate capital both to land ownership and tree production. An alternative to a forestry right is a leasing arrangement, where a forestry company leases land from the freehold owner for long enough to grow and harvest a crop of trees. However, the use of profits a prendre is more common in NSW because there are problems associated with leases: these relate to stamp duty, surveying and subdivision requirements.

Forestry covenants

[13.1060)

chapter 1 3 Forests and plantations law

Forestry rights and the Forestry Corporation [13.1040] The Forestry Corporation can participate in the forestry rights regime on private land

(Forestry Act, s 11 (1) (g)). Joint venture plantation forestry arrangements between the Corporation and others on privately owned land are typically conducted through the forestry rights mechanism. Logging by the Corporation on privately owned land pursuant to a forestry right must comply with legislation relating to plantations (see [13.170]-[13. 740]) or private native forestry (see [13.890]-[13.960]).

Profit d prendre and purchase tenure leases [13.1050] Under related but distinct provisions, where Crown lands are sold through purchase tenure leases, the Forestry Corporation can retain the right to harvest timber on those lands for a limited period after their sale. When certain prescribed leasehold lands are converted to purchase tenure land (that is, land in the process of being purchased from the Crown), the Corporation retains a profit a prendre right to take timber or other timber products from the land to the exclusion of any person who would normally be entitled to do so. This right persists for ten years (Forestry Act, Schedule 1, cl 5). The Act also sets out a form for the release of land from a profit a prendre (Forestry Act, s 58, Schedule 2).

Forestry certification [13.1060] Another field of forestry regulation is that of forestry sustainability certification. To gain deeper national and international market acceptance of forest products, as well as premium prices, many producers are voluntarily seeking certification of their forestry practices.

Forest certification can be defined as: the voluntary process by which planning, procedures, systems and performance of on-the-ground forestry operations are audited by a qualified and independent third party against a predetermined standard. (Forestry Tasmania, Special Timbers Strategy www.forestrytas.com.a u/uploads/File/pdf/pdf2010/ special %20timbers %20strategy%20ssml. pdf.)

(2010),

p

36.

Available

at

https://

Forest operations found to be in conformity with the given standard are issued a certificate. There are three main forms of forestry certification standards available in NSW, and different producers are certified under different schemes or a combination of them: 1.

Environmental Management System of the International Standards Organisation - ISO 14001 of 2004

Conveyancing Act 1919 (s 87). These are agreements between a landholder and an owner of a forestry right to ensure appropriate management of a forest. They may include terms relating to maintenance of roads, fencing and water supplies.

2.

Australian Forestry Standard (AS4708-2013) which is endorsed by the Programme for the Endorsement of Forest Certification (PEFC)

3.

Forest Stewardship Council (FSC) standards (Woodmark and SmartWood).

These management obligations are typically imposed on the landowner for the benefit of the owner of the forestry right. They may be either positive or negative but, importantly, they are binding on future landholders. Obligations to maintain trees or forests for the purpose of carbon sequestration can be included in forestry covenants (Conveyancing Act, s 87A).

The Forestry Corporation NSW has elected to have its management of State forests certified to the Australian Forestry Standard - AS 4708:2013 (AFS). This standard identifies timber at the time of purchase and guarantees that the timber has been grown and harvested from a sustainable forest.

[13.1030] Forestry covenants that are incidental to forest rights can be entered into under the

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[13.1070]

There is much debate over the credibility of forest certification, with a focus on the content of particular standards. In particular, the AFS has been criticised by environmentalists as a weak form of certification when compared with FSC certification.

Electricity generation from native forest feedstock [13.1070] In past years the Forestry Commission that preceded the Forestry Corporation and industry groups have promoted the use of native forest feedstock by electricity generators. These proposals to sell woodchips to power companies were partly due to declines in the woodchip export market but were also driven by incentives for the generation of electricity from renewable sources.

There has been considerable controversy over proposed power plants, at Eden (to produce electricity) and two others at Gunnedah and Mogo, which were to use native forest feedstock to produce charcoal (and electricity) for industrial purposes. Pollution control laws in NSW prohibit any occupier of premises from causing or allowing native forest bio-material (NFBM) to be burned in electricity generating plants with a capacity of more than 200 kilowatts (Protection of the Environment Operations (General) Regulation 2009, cl 97). There are record-keeping requirements for generating plants that burn any kind of biomaterial (s 98). NFBM is defined as bio-material from Australian native trees, except where it is sourced from plantations, exempt farm forestry (see [13.950]), sawdust or sawmill waste (Protection of the Environment Operations (General) Regulation 2009, cl 96). Recent amendments have extended the bio-material exception from the NFBM definition by exempting (Reg, cl 96(a1): (i) trees cleared under an approved PVP; (ii) pulp wood logs and heads and off-cuts resulting from clearing carried out in accordance with a private native forestry PVP or forestry operations carried out in accordance with an IFOA under Part 5B of the Forestry Act 2012; and (iii) trees from thinning operations under a PVP or IFOA. Also excluded from the definition of NFBM is waste arising from woodchipping or the manufacture of railway sleepers (cl 96).

Commonwealth legislation [13.1080] At the Commonwealth level, "wood waste" is listed as an eligible renewable energy source in the Renewable Energy (Electricity) Act 2000 (Cth) (s 17(1)(f)). Thus, speaking in general terms, renewable energy certificates could be issued for electricity generated from this source, creating financial incentives for the supply of biomass to produce electricity (see Chapter 10, [10.210]).

The Renewable Energy (Electricity) Regulations 2001 (Cth) restrict the types of wood waste that qualify as an eligible renewable energy source (reg 8). However, the Renewable Energy (Electricity) Regulations 2001 (Cth) were amended by the passage of the Renewable Energy (Electricity) Amendment Act 2015 (Cth) (Schedule 1, Part 4 ). These regulations no longer exclude native forest biomass from sawmill residue, manufacturing operations or harvesting, provided that it meets several integrity requirements.

[13.1080]

chapter 13 Forests and plantations law

To qualify as an eligible renewable energy source, biomass from a native forest must be (reg 8(2)):

• harvested primarily for a purpose other than biomass for energy production • a by-product or waste product of a harvesting operation, approved under Commonwealth and State laws, where high-value process is the primary purpose of the harvesting • is a by-product (including thinnings and coppicing) of a harvesting operation in accordance with ESFM principles • if from an RFA region - produced in accordance with ecologically sustainable forest management principles of that RFA • if from a non-RFA region -then produced from operations following similar ecologically sustainable forest management principles to the satisfaction of the Minister.

The amendments to the regulations have been contentious. Supporters of the prov1s10ns argued that the use of native forest biomass replaces fossil-fuel generation and that wood waste from forests is generally burned or left to rot anyway. Proponents also suggest that there are sufficient safeguards in place to ensure native forest wood waste is sustainably harvested. Environmentalists expressed concern suggesting that the amendments create new incentives for logging native forests and have impacts including loss of biodiversity and carbon sinks, plus particulate pollution from burning wood waste. The requirements in the Regulations (reg 8 ) which biomass from a native forest must meet in order to be eligible as a renewable energy source, are problematic. In particular, whether the standards provide sufficient levels of protection for the conservation values of native forests, and whether there are adequate compliance and enforcement mechanisms, is debatable.

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14 Coastal and riverside land Roseman_J Bullmore Associate Norton Rose Fulbright

Laws that protect the coastal zone .................................................................................................................. [14.20] The Coastal Zone ...................................................................................................................................................... [14.40] Planning requirements in coastal areas ................................................................................................... [14.160] Other policies and agency responsibility ......................................................................................t •••• •• ••• ••• [14.530] Threatened species and Ramsarwetlands ............................................................................................. [14.640] Development below high water mark ......................................................................................................... [14.680] The Coastal Protection Act 1979 ................................................................................................................ [14.710] Accretion and erosion .......................................................................................................................................... [14.840] Development on floodplains ............................................................................................................................ [14.870] Rivers and lakes .................................................................................................................................................. [14.1040] Extractive operations ....................................................................................................................................... [ 14.12 5 0] Acid sulfate soils ................................................................................................................................................. [14.1290] Reclamation and dredging ............................................................................................................................. [ 14.1340]

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[14.10] The coast of NSW is under intense development pressure. Over 80 % of the State's

popula tion lives along the coast, and population pressures are increasing. In addition to population pressures, the coastline and estuaries are subject to severe natural hazards such as storms and floods, and man-made hazards such as water pollution and sea level rise caused by climate change. This has resulted in a proliferation of legislation regulating the management of the coast. Much of the legislation discussed in other chapters will also apply to project proposals along the coast and rivers. For example, if a coastal area contains a Ramsar wetland or habitat for a nationally threatened species, then an approval may be required under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (see Chapter 7). See also Chapter 19, which covers fisheries legislation. In Australia coastal and flood plain planning and environmental management is primarily the role of state/local governments. Most coastal planning and management decisions are made by local governments within the jurisdiction of NSW legislation.

[14.40]

• •

•

Where relevant, parts of the NSW Coastal Policy have been incorporated into legislation or planning instruments.

•

Generally, the Environment Minister administers the Coastal Protection Act 1979 and the Planning Minister administers State Environmental Planning Policy No 71. Other key laws which regulate the management of the coastal zone are:

• • •

The draft Coastal Management Bill proposes to: revise the "Coastal Zone" into four coastal management areas which will be mapped by the proposed Coastal Management State Environmental Planning Policy. These four areas are: the coastal wetlands and littoral rainforests area the coastal vulnerability area the coastal environment area the coastal use area.

• revise and "modernise" statutory objectives for each coastal management area • create a new independent NSW Coastal Council, which will provide independent advice to the Minister on coastal planning and management issues • regulate coastal protection works, including provisions providing for compliance and enforcement • establish requirements for the preparation of coastal management programs (CMPs), which

• the Coastal Protection Act 1979 (see (14.710]) • State Environmental Planning Policy No 71 on coastal protection (see [14.190]). These apply only to the coastal zone, and all adopt the same definition of this zone.

implement a Coastal Management State Environmental Planning Policy.

• • • •

Laws that protect the coastal zone [14.20] The key coastal protection laws in NSW are:

chapter 14 Coastal and r iverside land

are intended to replace current coastal zone management plans. CMPs are to be prepared within the local government Integrated Planning and Reporting framework. Transition to these new arrangements will occur over a number of years current provisions for temporary coastal protection works will be repealed and replaced with "coastal erosion emergency action sub-plans", that outlines the roles and responsibilities of public authorities maintain the modification of the common law doctrine of erosion and accretion in the same manner as that contained ins 55N of the Coastal Protection Act 1979.

Many coastal councils are already preparing Coastal Zone Management Plans (CZMPs) under the existing legislation. The NSW Government has indicated that councils will be assisted to transition CZMPs into CMP and the local government Integrated Planning and Reporting (IPR) framework. The proposed reforms are on public exhibition until 29 February 2016.

the Environmental Planning and Assessment Act 1979 (EPA Act) (see [14.20]) though provision of strategic planning and the management of development; the Water Management Act 2000 (see [15.140]) by regulation of waterfront land; and the Threatened Species Conservation Act 1995 (see (14.640]) by the protection of endangered ecological communities and species.

The principal policy applying to the Coastal Zone 1s the NSW Coastal Policy 1997: A Sustainable Future for the New South Wales Coast.

NSW Coastal Reforms

The Coastal Zone What is the coastal zone? Land areas of the coastal zone

[14.30] On 13 November 2015, the NSW Government announced major reforms to coastal

[14.40] The boundaries of the coastal zone are defined in the Coastal Protection Act 1979

management in NSW. These reforms propose to:

(NSW) (ss 4, 4A(3)). The coastal zone generally extends:

• •

replace the Coastal Protection Act 1979 with a new Coastal Management Act provide for a decision support framework for local government though a new coastal management manual

• • •

one kilometre inland from the coast one kilometre landward around any bay, estuary, coastal lake, lagoon, and one kilometre along either bank of a coastal river up to the tidal limit of that river.

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[14.50)

Waters in the coastal zone [14.50] The coastal zone extends from the inland western boundary, as indicated above, to the outermost boundary of the coastal waters of the State which extend, generally, to 3 nautical miles from the coastline of the State (Interpretation Act 1987 (NSW), Part 10, s 58). The zone also covers the seabed and subsoil beneath coastal waters (Coastal Protection Act 1979, s 4(1)). NSW laws apply in the coastal waters of the state, including to the seabed and subsoil beneath them, and to the airspace above (Interpretation Act 1987, s 59).

The greater metropolitan region of Sydney [14.60) When the NSW Coastal Policy 1997 came into force, the greater metropolitan region

was excluded from the coastal zone. The greater metropolitan region encompasses local government areas from Newcastle City Council to Shellharbour Council. The region was excluded primarily because the planning instruments already governing these areas were generally thought to be so broad and complex that they provided adequate protection to the coast. However, on 18 November 2005, the then Minister for Natural Resources gazetted a notice and maps extending the coastal zone to the greater metropolitan region of Sydney, including 13 local government areas from Newcastle to Shellharbour. The waters of Sydney Harbour and Botany Bay are excluded from the coastal zone (Coastal Protection Act 1979, s 4A(3)(e).

Mops showing the coastal zone [14.70) The precise western boundaries of the coastal zone are shown on a series of maps, which

are approved by the Minister administering the Coastal Protection Act 1979 (s 4A). All the maps must be available for public inspection at the head office of the Planning Department, and each of the Department's regional offices must have the maps that relate to that region (ss 4B(l), (2)). Maps that relate to a local government area must also be available for inspection at the relevant council office during normal office hours (s 4B(3)). An electronic version of the coastal zone maps is available on the Planning Department's website.

The NSW Coastal Policy

[14.100)

• •

chapter 14 Coastal and riverside land

inspected during ordinary office hours at any office of the Planning Department or at any coastal local council (Environmental Planning and Assessment Regulation 2000, cl 92(2)) obtained directly from the Department's website.

What does the Coastal Policy contain? [14.90) The Coastal Policy contains a detailed range of objectives and strategic actions (see Part B - Implementation). For example, it recognises the need to increase public access to foreshores and the need to promote compact urban development. These objectives give guidance to State government agencies and local councils that are responsible for coastal zone planning and management.

In particular, the Policy contains a number of initiatives, including:

• a ban on new sandmining ventures in coastal national parks and nature reserves • controls over sandmining on other environmentally sensitive areas through the environmental impact assessment process {p 54) • a ban on new canal estate developments (p 57) (see the discussion of canal estate development on p 596) • a prohibition on development on beach fore dunes (other than for essential public purposes such as surf life saving clubs) • a requirement that public access to beaches and foreshores not be impeded by new tourist resort developments (p 60). The Coastal Policy also sets out a number of recommended conditions for granting mining leases in the coastal zone (p 56), including the need to:

• •

require the rehabilitation of mined lands ,and prevent the disturbance of adjacent lands.

Table 2 in Appendix C of the Coastal Policy {p 82) lists the provisions that are most relevant to development applications. Table 3 contains even more detailed principles for local councils to consider regarding the design and location of developments, such as:

• • •

the need to impose public setback lines the need to avoid overshadowing (see Coastal Policy, Appendix C, Table 3, pp 83-85).

The Coastal Policy has no impact on the ex1stmg use rights of residential and other developments (see [1.280] for an explanation of existing use rights).

[14.80) In 1997 the NSW Government released a document entitled NSW Coastal Policy 1997:

A Sustainable Future for the New South Wales Coast (Coastal Policy). The Policy recognises that a wide range of government agencies and local councils are responsible for the coast. Its purpose is to better coordinate the management of the coast, and especially to protect and conserve the coast for future generations. It seeks to adopt the principles of ecologically sustainable development (see [19.50]). The Policy applies to the coastal zone as defined by the Coastal Protection Act 1979 (see [14.40]). A copy of the policy can be:

Implementing and enforcing the Coastal Policy [14.100) The Coastal Policy is not legally enforceable on its own. Its implementation and enforcement take place through other mechanisms in the following ways:

• •

local environmental plans must give effect to the policy and be consistent with it, in accordance with a section 117 direction by the Planning Minister (see [14.170]) local councils must consider the policy when determining a development application on land to which the Coastal Policy applies (Environmental Planning and Assessment Regulation 2000, cl 92: see Chapter 5)

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[14.110)

local councils m ust address their implementation of the Policy in a state of the environment report contained in their annual report in the year of an ordinary election (Local Government Act 1993, s 428A; Coastal Policy, pp 63, 66-67, and Table 4, p 86) State agencies must address the implementation of the Coastal Policy in their corporate plans, annual reports, and state of the environment reports (Coastal Policy, p 24).

The Land and Environment Court and the Coastal Policy [14.11 OJ The Land and Environment Court has had regard to the Coastal Policy and applied it

on several occasions. For example, in Canyork Pty Ltd v Wollongong City Council [2003] NSWLEC 125, the Court refused development consent for a serviced apartment hotel complex that was to be built on a prominent coastal headland. Even though the Policy did not strictly apply in that case (because the development was in the urban area of the Illawarra region), the Court gave effect to the planning principles in the Policy. One of these principles is that headlands should be preserved, and that the height and scale of any further development on headlands should be strictly limited, and be no greater than the existing buildings so as to limit the visual impact of new development.

Coastal Design Guidelines 2003 [14.120) The Planning Minister has issued a specific direction to all local councils, in the coastal

zone. This is Direction 2.2 - Coastal Zone, issued as a Local Planning Direction under s 117(2) of the Environmental Planning and Assessment Act 1979. Under Direction 2.2, the Planning Minister requires planning proposals to include provisions that give effect to and are consistent with the Coastal Design Guidelines for NSW. These guidelines were launched by the Planning Minister on 4 March 2003. They provide best practice guidance for urban design in coastal areas, and are intended to be incorporated into a range of planning documents, including LEPs, settlement strategies and master plans.

[14.170)

chapter 14 Coastal and riverside land

NSW Comprehensive Coastal Assessment Toolkit [14.140) As part of the NSW Government's Coastal Protection Package, various materials have

been developed by the NSW Government to assist local councils in developing new local environmental plans (LEPs) and long term strategies for coastal planning and management. The Comprehensive Coastal Assessment Toolkit was released in May 2007 and contains information, resources and decision support tools to assist local council's land-use planning, including the following:

• detailed aquatic mapping showing the location and extent of mangroves, salt marsh and sea grasses • economic statistics on employment and income and agriculture value • coastal population movement and associated statistics • geology and resource maps • tourism information, including monthly visitation rates.

The Comprehensive Coastal Assessment Toolkit was provided to all non-metropolitan coastal councils in addition to various government authorities and non-government groups and is available for purchase from the Planning Department.

Oversight of the coastal zone [14.150) Responsibility for coastal zone management is fragmented, and is divided between different State government departments and local government.

The general responsibility for coastal areas rests with the Planning Minister, the Environment Minister and the Premier. Local councils continue to make many of the decisions regarding zoning and individual development applications in the coastal zone. Over 30% of the coastal zone is presently managed by the NSW National Parks and Wildlife Service.

The guidelines are a policy document only, and are not legally binding on councils or developers unless they are expressly incorporated as a planning requirement into an EPI.

Planning requirements in coastal areas Coastline, estuary and flood management plans [14.130) Local councils must prepare coastal zone, estuary and flood management plans and should integrate these plans into their LEPs to address planning and development issues. This is in accordance with the provisions of:

• the NSW Coastal Policy 1997 ([14.80]) • the Guidelines for Preparing Coastal Zone Management Plans (July 2013) • the Floodplain Development Manual (2005) • the Coastal Protection Act 1979.

[14.160) Planning law in NSW is dealt with in Chapters 3 and 5. However, many specific provisions apply to coastal areas because of their sensitive nature. These are described below.

Local environmental plans in the coastal zone [14.170) When local councils are preparing a planning proposal to amend local environmental

plan (sometimes termed a rezoning) or propose a new local environmental plan that applies to land in the coastal zone, they must take the following matters into account:

•

Local Planning Directions (issued under s 117(2) of the EPA Act), including:

• • Direction 2.2 -

Coastal Protection requires that planning proposal must include provisions that give effect to and are consistent with:

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• •

• • •

(14.180)

NSW Coastal Policy 1997

(14.230)

•

chapter 14 Coastal and riverside land

requires master plans to be prepared for certain subdivisions in the coastal zone.

Coastal Design Guidelines 2003 NSW Coastline Management Manual 1990.

Direction 4.1 - Acid Sulfate Soils requires local councils (or the relevant planning authority) to consider the Director-General's Acid Sulfate Soils Planning Guidelines when preparing planning proposals that apply to land that is likely to include acid sulfate soils. This is discussed further at [14.1290].

State Environmental Planning Policy No 71 on coastal protection: (see cl 7 and 8 and [14.190]).

Standard Instrument - Principal Local Environmental Plan

Aims ofSEPP 71 (14.200] SEPP 71 has an extensive list of aims which include (cl 2):

• protecting and managing the natural, cultural, recreational and economic attributes of the NSW coast • protecting and improving existing public access alon:g coastal foreshores • identifying and realising new opportunities for public access along coastal foreshores • protecting and preserving Aboriginal cultural heritage and places • protecting and preserving: -

[14.180] On 31 March 2006, the NSW Government gazetted a standard instrument for

preparing new LEPs, also known as the LEP Template (see [3.100]). This contains various compulsory provisions which must be included in new LEPs. Clause 5.5 is compulsory where land to which the LEP applies includes land within the coastal zone. The provision is intended to implement the principles of the NSW Coastal Policy and sets out a number of mandatory matters for a consent authority to consider when assessing development. The consent authority may not grant consent to any such development unless satisfied that:

• it will not impede or diminish, where practicable, the physical, land-based right of access of the public to or along the coastal foreshore • if effluent from the development is disposed of by a non-reticulated system, it will not have

a negative effect on the water quality of the sea, or any beach, estuary, coastal lake, coastal creek or other similar body of water, or a rock platform

• the proposed development will not discharge untreated stormwater into the sea, or any beach, estuary, coastal lake, coastal creek or other similar body of water, or a rock platform • the proposed development will not be significantly affected by coastal hazards, have a

significant impact on coastal hazards, or increase the risk of coastal hazards in relation to any other land.

SEPP 71 - Coastal Protection [14.190] SEPP 71 is the main EPI regulating coastal development in NSW, and it has the potential to affect many developments in the coastal zone. Other SEPPs that may affect the coast are described at [14.350)-(14.490]. SEPP 71 came into effect on 1 November 2002. It is legally enforceable (see, for example, the case studies at [14.390]).

scenic features, including those on or near beaches beach environments coastal vegetation the marine environment rock platforms

• managing the coastal zone in accordance with the principles of ecologically sustainable development • ensuring that the type, bulk, scale and size of development is appropriate for the location and protects and improves natural scenic quality • encouraging a strategic approach to coastal management • further implementing the Coastal Policy. Where does SEPP 71 apply? [14.210] SEPP 71 applies to land within the coastal zone as defined under the Coastal Protection

Act 1979 (cl 4(1): see [14.40]). There are two exceptions (cl 4(2)):

• development applications or development consents, which are dealt with under SEPP 62-Sustainable Aquaculture (see [19.970]) • Lord Howe Island. Section 149 certificates [14.220] If SEPP 71 applies to the carrying out of development on land, then this must be specified on any section 149 certificate for the land (Environmental Planning and Assessment Regulation 2000 Sch 4, cl 1(3)). Section 149 certificates are explained at [3.710].

In summary, the Policy:

• specifies additional matters that must be considered in preparing planning proposals and in determining development applications (see for example, Gales Holdings Pty Ltd v Tweed Shire Council [2008] NSWLEC 209 per Preston CJ at [40])

• requires some development applications for development in sensitive coastal locations to be referred to the Director-General of the Planning Department for comment

Additional matters for LEPs and development applications [14.230] Clause 8 of SEPP 71 contains an extensive list of matters that must be taken into account (cl 7) by:

•

a local council when preparing a draft LEP within the coastal zone, and

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(14.240]

a consent authority when determining a development application concerning land in the coastal zone. The matters that must be considered include (cl 8):

• the aims of State Environmental Planning Policy No 71 • the need to retain and improve existing public access to and along the coastal foreshore • opportunities to provide new public access to and along the foreshore • any way in which development may harm the scenic features of the coastal foreshore, including overshadowing and loss of views • measures to conserve threatened animals, plants, fish and their habitats • the impact of development on wildlife corridors • the likely impact of development on coastal processes and hazards • the likely impact of coastal processes and hazards on any proposed development • measures to protect Aboriginal cultural places, values, customs, beliefs and traditional knowledge • the likely impact of development on coastal water quality • the conservation and preservation of heritage items. A consent authority for a development application in the coastal zone must also consider:

• the cumulative impacts of the proposed development on the environment (cl 8(p)(i)) • •

measures to ensure that use of water and energy by the proposed development is efficient (cl 8(p)(ii)) the NSW Coastal Policy (see Environmental Planning and Assessment Regulation 2000, cl 92).

Significant coastal development [14.240] Part 3 of SEPP 71 applies to significant coastal developments which are within 100m below the mean high water mark of the sea, a bay or an estuary. Generally, these developments must be referred to the Director-General of the Planning Department for comment. This procedure is described in more detail below.

Some major high-risk developments in the coastal zone were previously declared by SEPP 71 to be "state significant development", making the Minister the consent authority. These provisions were repealed and transferred to State Environmental Planning Policy (Major Development) 2005, which came into force on 1 August 2005. Following amendment of this SEPP in 2011 such larger developments have become either "state significant development", "state significant infrastructure" or "regional development" under State Environmental Planning Policy (State and Regional Development) 2011 which commenced on 1 October 2011.

Referral of significant coastal developments by local councils [14.250] Under clause 11 of SEPP 71, local councils must refer development within 100 metres below the mean high water mark of the sea, a bay or an estuary to the Director-General for review and comment.

[14.280]

• •

chapter 14 Coastal and riverside land

The obligation to refer does not apply if: either the Minister or Director-General are already the consent authority (cl 9(2)(6)) for the development; or the Minister's or Director-General's concurrence is already required under another environmental planning instrument (except for SEPPs 1, 14 and 26).

The council must refer the development application within two days of receiving it. The Director-General then has 28 days to specify any matters additional to those specified in clause 8 of State Environmental Planning Policy No 71 which the local council must consider in determining the development application.

Moster plans for subdivisions [14.260] SEPP 71 introduces a new requirement that master plans be in place before certain subdivisions can be approved in the coastal zone: see Part 5.

Master plans are prepared by the owner or lessee of the land to be developed (cl 20(1)). Where a master plan is required, a consent authority must take the master plan into consideration when determining a development application (cl 19). Master plans are now taken to be development control plans ((17.660]) see EPAAct, Sch 6, cl 95).

When are master plans required? [14.270] Under SEPP 71, master plans are required for:

• • • •

subdivision in a residential zone or rural residential zone, if part or all of the land is within a "sensitive coastal location" (see above) (cl 18(1)(a)) subdivision on land that is zoned residential (that is not within a "sensitive coastal location") and will be subdivided into more than 25 lots subdivision on land that is zoned residential (that is not within a "sensitive coastal location"), where: - the land will be subdivided into 25 lots or less, and - the adjoining or neighbouring land is held in the same ownership and could be subdivided into more than 25 lots (cl 18(1)(6)) subdivision of land that is zoned rural residential (that is not within a "sensitive coastal location") into more than 5 lots (cl 18(1)(c)).

What is a sensitive coastal location? [14.280] A "sensitive coastal location" is defined (cl 3) as:

• • • • •

land within 100 metres above the mean high water mark of the sea, a bay or an estuary a coastal lake (see Schedule 1) a declared Ramsar wetland a declared World Heritage property land declared as an aquatic reserve

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• •

•

[14.290)

[14.350)

land declared as a marine park

Can development applications for subdivisions be split?

land within 100 metres of:

[14.320] Developers cannot avoid the 25-lot threshold by splitting their development applications into two or more smaller applications (cl 18(1)(b)(ii)).

-

the water' s edge of a coastal lake a declared Ramsar wetland a World Heritage property an aquatic reserve a marine park a national park a nature reserve a SEPP 14 coastal wetland

Waiving of master plans [14.330] The Minister may waive the requirement for a master plan because of the nature of a development and the adequacy of other planning controls, but only after consulting and taking advice from the Natural Resources Commission (cl 18(1)(e), (2)).

Case study: Challenging development consents

land zoned residential, village or township within 100 metres of a littoral rainforest identified under SEPP 26.

(14.340) In December 2004, an organisation called the Friends of South West Rocks successfully brought proceedings in the Land and Environment Court. They challenged three separate development consents for residential subdivisions granted by Kempsey Shire Council. One consent was for 35 lots, one for 23 lots and one for 24 lots. They were concerned that the subdivisions would affect the habitat of the brush-tailed phascogale and the squirrel glider, and argued that under SEPP 71 a master plan should have been prepared for the subdivisions demonstrating, among other things, how the development would conserve animal and plant habitat. The Court declared each of the development consents to be void. It found that the development applications should have been subject to the more stringent planning . controls under SEPP 71 (Friends of South West Rocks Inc v Machro Pty Ltd (2004) 136 LGERA 198).

What must master plans cover? [14.290] Master plans must cover a long list of things, including (cl 20(2)):

• • • • • • •

desired future locality character the likely coastal processes and hazards any proposals for public access to and along the foreshore cycle networks public facilities and open space heritage conservation

In Aldous v Greater Taree City Council (2009) 167 LGERA 13, it was argued that the Council had failed to take a number of mandatory matters in clause 8 of the Policy into account in determining a development application. The main ground for the argument was that in the planning assessment reports prepared by Council, there was no reference to the Policy. The challenge was unsuccessful because, by reference to various other evidence, the Court held that the Council had taken those matters into account.

conservation of water quality and use, animals, plants and fish.

Public information on master plans [14.300] The Minister must (cl 21):

• advertise the draft master plan in a local newspaper • •

chapter 14 Coastal and riverside land

exhibit it for at least 28 days for public comment send it for comment to:

A similar challenge was dismissed in Anderson on behalf of Numbahjing Clan within the Bundjalung Nation v NSW Minister for Planning [2008] NSWLEC 120.

- the Natural Resources Commission - the relevant local council - other public authorities as determined by the Minister. After taking any written submissions or comments and any additional matters for consideration under clause 8 into account, the Minister may adopt, vary or reject a draft master plan (cl 22(1), (2)). If the plan is adopted, the Minister must then advertise that decision in a local newspaper (cl 22(4)). A local council and the principal and relevant regional office of the Planning Department must have available for inspection during normal office hours, a copy of all master plans adopted by the Minister under State Environmental Planning Policy No 71 (cl 24).

Are master plans binding? [14.310] In determining a development application for subdivision, a consent authority is not strictly bound to follow a master plan, but must take it into account when deciding whether to approve the application (cl 19).

SEPP (Infrastructure] 2007 [14.350] The aims of State Environmental Planning Policy (Infrastructure) 2007 include:

• • •

improving regulatory certainty and efficiency through a consistent planning regime for infrastructure and the provision of services providing greater flexibility in the location of infrastructure and service facilities allowing for the efficient development, redevelopment or disposal of surplus government owned land. See [3 .4 70] for further details in relation to the Policy.

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[14.360]

The Policy contains specific development controls that apply to a range of different kinds of development, both public and private. As well as prescribing a range of development that is permissible with consent, the Policy also identifies exempt, complying and other development that may be carried out without consent (see [3.480)). The latter category of development may require assessment under Part 5 of the EPA Act (see Chapter 6). The Policy also specifies consultation requirements for particular development which the Policy allows to be carried out by or on behalf of a public authority without consent (cll 15-16).

Coastal and riverside land protection works [14.360] The Policy provides for the undertaking of Waterways and foreshore management

activities (see Division 25) by public authorities and private persons. Waterways and foreshore management activities include:

• riparian corridor and bank management • coastal management and beach nourishment • coastal protection works • other works including erosion control, dune or foreshore stabilisation works, headland

management, weed management, revegetation activities and foreshore access ways, instream management, rehabilitation work, water quality improvement works and gauging of waterways for water accounting purposes. Development for the purpose of waterway or foreshore management activities may be carried out by or on behalf of a public authority without consent on any land (see cl 129). If a council proposes to carry out "new coastal protection works" it must consider the provisions of any relevant CZMP, or if no CZMP is in place, notify the NSW Coastal Panel and consider any advice received from that Panel. With consent, any person may carry out development for the purposes of a sea wall or beach nourishment on the open coast or entrance to a coastal lake (see cl 129A). If no CZMP applies to the relevant land, the Coastal Panel is the consent authority for those works. If a CZMP is in place, the relevant council will be the consent authority. Many of the other controls in the Policy are capable of applying to development of coastal and riverside land. Some specific areas covered by the Policy in Part 2 are:

• Flood mitigation work - Division 7 • Parks and other public reserves - Division 12 • Port, wharf and boating facilities - Division 13 • Soil conservation works - Division 19 • Stormwater management systems - Division 20

[14.420]

chapter 14 Coastal and riverside land

SEPP 14 - Coastal Wetlands [14.370] The aim of SEPP 14 is to ensure that coastal wetlands are preserved and protected in the environmental and economic interests of the State (cl 2). Over 1300 coastal wetlands have been mapped under SEPP 14.

Development consent for work in wetlands [14.380] Under the Policy a person requires development consent from the local council and concurrence of the Director (presumably the Director-General of the Planning Department) before taking the following actions within a mapped wetland (ell 6, 7):

• • • •

clearing land constructing a levee on land draining land filling land.

Environmental impact statements [14.390] Most activities covered by the Policy are deemed to be designated development under the EPA Act, so an environmental impact statement must be prepared as part of any development application (cl 7(3), EPA Act, s 29) (see [5.570)).

Director-General's concurrence [14.400] The concurrence of the Director-General is required before development consent can be given by a local council (cl 7(1), (2)). Clause 7(2)(a)-(g) lists the matters the Director-General must consider in deciding whether to grant concurrence.

Restoration works [14.410] In 1997, the Policy was amended to provide that consent and concurrence must also be

obtained for restoration works undertaken solely for the purpose of restoring or enhancing a protected coastal wetland. A development application for restoration works must be supported by a restoration plan (cl 7 A). Restoration works are exempt from the designated development provisions, so an environmental impact statement is not required (cl 7(5)) .

Case study: Building a boat ramp [14.420] In Myall Koala and Environment Support Group v Great Lakes Shire

Council (unreported, Land and Environment Court, 17 October 1990), a local council decided to give consent to its own construction of a boat ramp by clearing, draining and filling land. Third party objectors lodged a merit appeal under section 98 of the EPA Act (see [2.350)) against the decision. In allowing the appeal, Justice Bignold relied in particular on:

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[14.430]

[14.500]

chapter 14 Coastal and riverside land

Environmental impact statement for development on mopped land

• the incompatibility of the proposal with the aims of SEPP 14

• the Council's failure to justify the development by showing that it was needed and that there were no feasible alternatives.

[14.470] For core areas of forest that are mapped (but not the 100-metre buffer), the requirements are even more stringent. In addition to the activities listed above (see Requirement for development consent), development consent and concurrence of the Director-General is also required to carry out any work, for any use of land, and for subdivision. Development within mapped areas is deemed to be designated development (see [5.710]).

SEPP 26 - Littoral Rainforests

Exceptions

[14.430] Littoral rainforest is a distinct type of rainforest, now much depleted. It is especially adapted to coastal conditions involving harsh, salt-laden, drying winds. The purpose of SEPP 26 is to preserve littoral rainforest areas by ensuring that proper consideration is given to developments that are likely to damage or destroy them (cl 2). Eighteen local government areas with direct frontage to the Pacific Ocean are affected by SEPP 26, from Tweed Shire in the north to Eurobodalla Shire in the south.

[14.480] The Policy does not require development consent for (cl 7(5)):

Where does SEPP 26 apply? [14.440] The Policy applies to certain mapped coastal forests (core areas), as well as to land within a 100-metre buffer zone surrounding them (cl 4) . There are a number of exceptions where the Policy does not apply. Land is excluded from the buffer zone if it is (cll 3(1), 4(1)(6)) :

• "residential", "village" or "township", or • land to which SEPP 14 applies.

Requirement for development consent [14.450] The Policy requires development consent from a local council (cl 7(1), (2)) for any of the following activities on all land to which the Policy applies:

• building • disturbance to the landform (including rocks and earth) • destruction of native flora • the disposal or dumping of any matter.

In deciding whether to grant consent, the local council must be satisfied that there is no suitable alternative location outside the littoral rainforest for the development to take place (cl 7(6)). The council must forward a copy of any development application received under the Policy to the Director of National Parks and Wildlife within seven days (cl 9). The Director may then make representations for the Minister or Director-General of the Planning Department to consider (cl 8(1)(a)).

Requirement for concurrence [14.460] The Policy also requires that a development consent must not be granted without the concurrence of the Director-General (cl 7(3)). The Minister's concurrence is also required (cl 7(4)) where the development is integrated development (see [5.370]).

• activities within the normal course of residential occupation • the destruction of declared noxious weeds • the removal of leaf litter to reduce bushfire risk.

Existing lawful uses, such as grazing, are also protected; these activities do not require development consent (see [1.280]).

SEPP 50 - Canal Estate Development [14.490] Canal estates can pose serious water quality problems, threaten the integrity of coastal wetlands, inland waterways and fisheries habitats, exacerbate flooding and disturb acid sulfate soils. Canal estate developments throughout NSW are prohibited by SEPP 50 (cl 5). However, the Policy does not apply to land covered by:

• •

Penrith Local Environmental Plan 1998 (Lakes Environs) Sydney Regional Environmental Plan No 11-Penrith Lakes Scheme (cl 4).

The Policy does not prohibit marinas, boat harbours or other water-based developments that fall outside the definition of canal estate development in clause 3, as these are subject to other environmental safeguards. For example, marinas providing moorings for at least 30 noncommercial vessels in certain areas are designated development (Environmental Planning and Assessment Regulation 2000, Sch 3).

Sydney REP (Sydney Harbour Catchment) 2005 [14.500] Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, along with other regional plans which contain specific provisions relating to the coastal zone or riverside land (see, for example, Division 2 of Part 3 of the North Coast Regional Environmental Plan 1988; Sydney Regional Environmental Plan No 20-Hawkesbury-Nepean River (No 2-1997); Sydney Regional Environmental Plan No 17-Kurnell Peninsula (1989)), is now deemed to be a State environmental planning policy (see [3 .380]). It applies to land within the Sydney Harbour Catchment and zones the land within the Foreshores and Waterways Area (generally Sydney Harbour) . The aims of the Plan include:

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[14.510]

• to ensure that the catchment, foreshores, waterways and islands of Sydney Harbour are recognised, protected, enhanced and maintained for existing and future generations • achieve a high quality and ecologically sustainable urban environment to

• •

to

[14.540]

chapter 14 Coastal and riverside land

area" includes the coastal waters of the State, coastal lakes, and land to which SEPPs 14 and 26 apply. Restrictions are also placed on carrying out certain kinds of complying and exempt development in foreshore areas.

ensure accessibility to and along Sydney Harbour and its foreshores

to ensure the protection, maintenance and rehabilitation of watercourses, wetlands, riparian lands, remnant vegetation and ecological connectivity.

In order to achieve these aims, general and specific planning principles and planning controls have been developed for the various areas of the Sydney Harbour Catchment:

• the foreshores and waterways area (cl 14 and Part 3) • various strategic foreshore sites (Part 4) • various heritage items (Part 5) • the Sydney Opera House buffer zone • various wetlands protection areas (Part 6).

Land in the Foreshores and Waterways Area is divided into 8 zones. Clause 18 sets out development that requires consent, development that does not require consent and development that is prohibited in each of the zones. When determining development applications for development within the Foreshores and Waterways Area, the consent authority must take a range of matters into consideration including in relation to ecological impacts, scenic quality, access and biodiversity impacts: see Division 2 in Part 3. Depending on the type of development, the Foreshores and Waterways Planning and Development Advisory Committee may need to be consulted before consent is granted or the development proceeds (cll 29, 31). In relation to strategic foreshore sites, the Plan requires that master plans be adopted before a development application is determined unless the Minister waives the requirement (cl 41).

The Plan contains complex provisions governing the consent authority for development depending on whether the development is classified as "water-based", "land/water interface development" or "land-based development" (cl 5). The Ports Minister, currently the Minister for Roads, Maritime and Freight, is usually the consent authority for water-based development and the council of the local government area in which, or nearest to which, the land on which the development is proposed to be carried out is usually the consent authority for "land/water interface development" and "land-based development".

SEPP (Exempt and Complying Development Codes) 2008 [14.510] State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 aims to provide a streamlined assessment process for a range of exempt and complying development that complies with specified development standards (see [5.1230)). With limited exceptions, the Policy applies to the State.

It provides that exempt and complying development may not be carried out, amongst other things, on land that is an environmentally sensitive area (cl 1.19(1)). "Environmentally sensitive

State Environmental Planning Policy 6 2 Sustainable Aquaculture [14.520] SEPP 62 aims to encourage sustainable aquaculture in NSW. The Policy allows certain aquaculture developments to be carried out with development consent, and declares certain classes of aquaculture to be designated development. For further information on aquaculture, see [19.670).

Other policies and agency responsibility The responsibility of the Natural Resources Commission (14.530] The Natural Resources Commission has statutory responsibility for investigating and reporting on the management of natural resources in NSW. Under the Natural Resources Commission Act 2003 (ss 5 and 12), this includes:

• water • native vegetation • biodiversity coastal protection •• the marine environment, unless it is a matter arising under the Fisheries Management Act 1994 or the Marine Parks Act 1997. The Commission also has a direct role in providing advice to the Planning Minister under State Environmental Planning Policy No 71 on coastal protection if there is a request to waive master plans for subdivisions and to comment on draft master plans (for more on master plans, see [14.260]).

The Coastal Lands Protection Scheme [14.540) In addition to the laws described below, coastal protection can also be brought about through the Coastal Lands Protection Scheme, which has existed since 1973. The Scheme aims to protect significant coastal features such as:

• • • •

headlands dunes hinterland coastal lagoons and lakes.

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[14.550)

It does so through the purchase of significant coastal lands to bring them into public ownership. The main criteria for acquisition of land under this scheme are:

• • •

to promote public access to maintain the scenic quality of the NSW coast to protect ecological sites of regional, State and/or national significance.

As at 30 June 2009 (latest publically available data) approximately 15,427 hectares of land had been acquired at a total cost of $70.8 million. The Scheme has an annual funding allocation of approximately $3 million and is managed by the Department of Planning and Environment. Members of the public can nominate or suggest land for purchase under the scheme.

Notional Cooperative Approach to Integrated Coastal Zone Management - Framework and Implementation Plan

[14.570)

• • • • •

The Framework describes pressures that affect the coastal zone (such as population growth and climate change), identifies outcomes that will be achieved from a national cooperative approach and key themes for national action to achieve the outcomes (being recognition of an integrated approach to the catchment-coast-ocean continuum and identifying specific coastal issues that require national collaboration).

Development applications in the coastal zone Additional requirements in the coastal zone (14.560] In addition to the standard requirements for a development application (see [5.1240]),

the following additional matters apply to development applications in the coastal zone:

•

SEPP 71, clause 8 contains a number of matters to be considered by a consent authority when determining a development application

relevant coastal zone management plan must be taken into account (EPA Act s 79C(l)(a)(v))

the NSW Coastline Management Manual (1990) may still be specified in a regional environmental plan (now deemed to be a State Environmental Planning Policy: see [3.660]) as an additional matter for consideration development applications for some larger subdivisions must first have a master plan in place before they can be approved, and the master plan must be taken into consideration by the consent authority (State Environmental Planning Policy No 71, Part 5; EPA Act, s 79C(l)(a)(i)). Master plans are discussed at [14.260] if a Standard Instrument LEP is in place, clause 5 .5 and 5. 7 of that LEP Part 4 of State Environmental Planning Policy No 71 also imposes the following overall controls in relation to all development applications in the coastal zone (cl 12): - a consent authority must not consent to a development application for development on land in the coastal zone if, in its opinion, the development may impede or diminish public access to the coastal foreshore (cl 14) - if there is a proposal in a development application to dispose of effluent by a non-reticulated system, the application must be refused if the consent authority is satisfied that there will be a negative effect on any nearby beach or on the quality of water near the coast (cl 15) - A development application must be refused if it will, or is likely to, discharge untreated stormwater into the sea or a beach, or an estuary, a coastal lake, a coastal creek or other similar body of water, or onto a rock platform (cl 16) - flexible zoning provisions are declared to have no effect in the coastal zone (cl 13 ). (Flexible zoning provisions are provisions in an EPI that allow consent to be given to development within a zone as if it were in a neighbouring zone.)

Framework and Implementation Plan for a National Cooperative Approach to Integrated Coastal Zone Management: see http://www.environment.gov.au/coasts/publications/framework/ index.html.

The Framework and Implementation Plan are not legally binding but identify a cooperative approach to address cross border coastal management issues and to harmonise joint action.

the NSW Coastal Policy must be taken into account (Environmental Planning and Assessment Act 1979, s 79C(l)(a)(iv); Environmental Planning and Assessment Regulation, cl 92(1 )(a)(ii))

• any

(14.550] In 2006, the Commonwealth Government published a document outlining the

The Implementation Plan sets out implementation objectives and specific actions required to address various coastal management issues and implement the objectives of the Framework. The timeframes to implement the actions and responsible bodies are also identified. For example, in order to improve understanding of the impacts of climate change on the coastal zone, one of the actions required (action 3.1.1) is to build a national "picture" of coastal zone areas that are particularly vulnerable to climate change impacts to better understand the risks and interactions with other stresses in the coastal zone.

chapter 14 Coastal and riverside land

Designated development (14.570] An environmental impact statement is required for designated development, and third

party appeals are available (see [5.330]). Many high-impact developments on or near the coast will constitute designated development simply because they are close to a coastal or water feature such as:

• • • • • •

a waterbody a wetland a floodplain the coastline a coastal dune field acid sulfate soils.

The list of designated development is in Schedule 3 of the Environmental Planning and Assessment Regulation 2000 (cl 4). For example, an extractive industry will be designated development if it is located:

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• •

•

[14.580)

in or within 40 metres of a natural waterbody, wetland or "environmentally sensitive area" (see below) within 200 metres of a coastline

[14.610)

chapter 14 Coastal and riverside land

Any reference to the "NSW sea level rise planning benchmarks" in guidelines and documents should be taken as meaning the sea level rise planning benchmark adopted by the relevant council.

in an area of contaminated soil or acid sulfate soil.

An "environmentally sensitive area" is defined in the Environmental Planning and Assessment Regulation 2000 (Sch 3, cl 38) to include land zoned for environment protection, or land protected or preserved under SEPP 14 - Coastal Wetlands or SEPP 26 - Littoral Rainforests.

NSW Coastal Planning Guideline: Adopting To Seo Level Rise {August 20 l OJ

Other examples of developments that will be designated because they are near the coast include:

(14.600] The Guidelines provide for councils to identify coastal risk areas. Coastal risks include risks from coastal erosion, tidal inundation and coastal flooding, including impacts of sea level rise. Coastal risks are to be communicated by development of a number of hazard lines to assist land use planning and development assessment plan for climate change.

• coal mines within 200 metres of a coastline (Environmental Planning and Assessment Regulation 2000, Sch 3, cl 11) • certain sewerage systems or works and compositing facilities or works that are within a coastal dune field or on a floodplain (Environmental Planning and Assessment Regulation 2000, Sch 3, cll 13 and 29).

Integrated development [14.580] Developments affecting coastal areas or riverbanks may also constitute integrated development under s 91 of the EPA Act (see [5.370]). For example, developments will be integrated development if they require one or more of the following approvals:

• an aquaculture permit under s 144 of the Fisheries Management Act 1994 • a permit to carry out dredging or reclamation work under s 201 of the Fisheries Management Act 1994 • a permit under s 205 of the Fisheries Management Act 1994 to damage or destroy marine vegetation on submerged public land (see [19.960]) • a water management work approval or activity approval under the Water Management Act 2000 (see [14.1150] below).

Climate change and sea level rise [14.590] Growing concern over the effect of climate change and sea level rise has led the NSW

Government to initiate responses ranging from; mapping projects which identify low-lying areas that are at risk from sea level rise, to the development of guidelines that enable local councils, State agencies, planners and developers to address the issues raised by sea level rise in land use planning and development assessment. In October 2009, the NSW Government issued a Sea Level Rise Policy Statement and developed guidelines on incorporating sea level rise into flood risk and land-use planning and development assessment. In 2012, the NSW Government announced significant changes to the way the NSW coast will be managed. These reforms removed the Sea Level Rise Policy Statement as official government policy. Councils are now encouraged to development their own sea level rise planning benchmarks with the assistance of the information provided on the Office of Environment and Heritage website, available at: http://www.environment.nsw.gov.au/coasts/ stage 1 CoastRefQaA.htm.

• • • •

The Guidelines are based on six planning principles: assess and evaluate coastal risks taking into account the NSW sea level rise planning benchmarks advise the public of coastal risks and ensure that informed land use planning and development decision-making can occur avoid intensifying land use in coastal risk areas through appropriate strategic and land use planning consider options to reduce land use intensity in coastal risk areas where feasible

• minimise the exposure of development to coastal risks

•

implement appropriate management responses and adaptation strategies with consideration for the environmental, social and economic impacts of each option.

The principles are to be applied in decision-making processes for land use planning and development assessment in coastal areas.

Coastal Risk Management Guide - Incorporating sea level rise benchmarks in coastal risk assessments {August 20 l OJ [14.610] The Coastal Risk Management Guide is designed to assist local councils, the development industry and consultants to incorporate the sea level rise benchmarks (as identified by council) in coastal hazard assessments carried out as part of a coastal hazard definition st~dy during a coastal zone management planning process or for assessing coastal hazard constramts for proposed coastal developments.

The Guide updates the information in the NSW Coastline Management Manual (1990) and acknowledges that sea level rise will affect the previously adopted hazard lines - being the estimated extent of land to be impacted by coastal processes such as shoreline recession and coastal inundation over a particular period. The Guidelines indicate that sea level rise will increase the predicted shoreline recession.

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(14.620]

Case study: Climate change induced coastal erosion [14.620] Where relevant to development, the risk of climate change induced coastal erosion must be taken into account when determining a development application or project or concept plan application under the EPA Act.

In some cases this is because it is expressly required to be considered under an EPI or a development control plan. In other cases, it is because it is an element of the public interest as mentioned in s 79C( 1 )( e) in Part 4 of the EPA Act. However, in Minister for Planning v Walker [2008] NSWCA 224, the Court of Appeal held that while a Minister making a planning decision on a concept plan for a residential project on a flood constrained coastal plain under the EPA Act, Part 3A was bound to take the public interest into account (at [39]) this did not necessarily include ecologically sustainable development (ESD) principles. Specifically, whether changed weather patterns as a result of climate change would lead to an increased flood risk in connection with the proposed development where flooding had been identified as a major constraint on coastal plain development. At the same time, a majority of the Court indicated that it was likely to take a different approach in the future (see now Kennedy v NSW Minister for Planning [2010] NSWLEC 240 at [77]; Aldous v Greater Taree City Council [2009] NSWLEC 17 at [28]) and that even in the case of this development, the Minister woutd be advised to consider ESD principles when it came to any decision subsequent to approval of the concept plan whether to grant development consent (at [56]): I do suggest that the principles of ESD are likely to come to be seen as so plainly an element of the public interest, in relation to most if not all decisions, that failure to consider them will become strong evidence of failure to consider the public interest and/or to act bona fide in the exercise of powers granted to the Minister. While Part 3A has been repealed, this decision is still relevant in consideration of the scope of public interest under the EPA Act (see [5.1480]). In Byron Shire Council v Vaughan, Vaughan v Byron Shire Council [2009] NSWLEC 88, the Land and Environment Court granted an urgent interlocutory injunction to restrain owners of beachfront property at Belongil Beach, Byron Bay from depositing large rocks to create a barrier to prevent further erosion of their land without requisite consent under the EPA Act. The need for the works came about as result of wave action occasioned by storm surges in May 2009 which dismantled an interim sandbag wall constructed by the Council. The Court accepted evidence that the injunction should be granted despite the impact on the owners' land because the work would result in potentially adverse impacts elsewhere.

Regional development [14.630] Schedule 4A of the EPA Act provides for certain types of coastal development to be determined by the relevant Joint Regional Planning Panel as regional development. These types of development include development within the coastal zone for the purposes of subdivision of the following kind:

[14.650]

• • •

ch apter 14 Coastal and riverside land

subdivision of land for any purpose into more than 100 lots, if more than 100 of the lots will not be connected to an approved sewage treatment work or system subdivision of land for residential purposes into more than 100 lots, if the land:

• •

is not in the metropolitan coastal zone, or is wholly or partly in a sensitive coastal location

subdivision of land for rural-residential purposes into more than 25 lots, if the land:

• •

is not in the metropolitan coastal zone, or is wholly or partly in a sensitive coastal location.

Threatened species and Ramsar wetlands Threatened Species Conservation Act 1995 [14.640] Coastal areas may contain:

• • •

threatened species of animals or plants threatened populations of animals or plants endangered ecological communities.

These species, populations or communities may be protected under the NSW Threatened Species Conservation Act 1995. See Chapter 12.

• •

Examples of some protected species and communities in coastal areas include: the Little Penguin in the Manly Point Area (Threatened Species Conservation Act 1995, Sch 1, Pt 2) Coastal Saltmarsh, an endangered ecological community found in the New South Wales North Coast, Sydney Basin and South East Corner Bioregions (Sch 1, Pt 3).

Biodiversity reforms [14.650] In June 2014, the NSW Government appointed an independent panel to conduct a

comprehensive review of the Native Vegetation Act 2003, Threatened Species Conservation Act 1995, Nature Conservation Trust Act 2001 and those parts of the National Parks and Wildlife Act 1974 that relate to native plants and animals and private land conservation. The panel presented its final report to the Minister for the Environment on 18 December 2014. The panel has made 43 recommendations. The NSW Government has adopted all 43 of the recommendations, including the development of a "Biodiversity Conservation Act" which will replace the existing relevant legislation including the Threatened Species Conservation Act 1995. Draft legislation is expected to be publically released in early 2016.

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(14.660]

Environment Protection and Biodiversity Conservation Act 1999 [14.660] This Commonwealth legislation requires an approval from the Commonwealth

Environment M inister for controlled actions. The operation of the Act is discussed in detail in Chapter 7. Controlled actions regulated by Part 3 of the Environment Protection and Biodiversity Conservation A ct 1999 include any action that has, will or is likely to have a significant impact on:

• the ecological character of a declared Ramsar wetland • a listed threatened species included in the extinct in the wild, critically endangered, endangered or vulnerable category • a listed threatened ecological community included in the critically endangered or endangered category • a listed migratory species • Commonwealth marine areas • a water resource, in relation to coal seam gas development and large coal mmmg development. For more information on threatened and migratory species, see Chapter 12.

Romsor Wetlands

(14.700]

chapter 14 Coastal and riverside land

Local councils [14.690] Local councils can regulate development below the high water mark. A local government area may extend to:

• • • •

the intertidal area between the high and low water marks (Local Government Act 1993, s 205(1)) marine waters enclosed by a line drawn between the low water marks of consecutive headlands (s 205(2)) any land on the boundary of a local government area that is reclaimed from tidal waters and is privately owned or has a structure erected on it (s 205(3)(a)) any land on the boundary of a local government area that is below the low water mark and is privately owned or has a structure erected on it (s 205(3)(6)). Local councils may therefore include these areas in their LEPs.

Many LEPs have adopted a provision which requires development consent for all development where:

• • •

land is below the high-water mark land is on the beds of otherwise unzoned rivers, creeks, bays, lagoons or other natural watercourses land has been reclaimed.

Under the Standard Instrument LEP (see [3.100]), new LEPs require consent for development on any land below the mean high water mark of any body of water subject to tidal influence (including the bed of any such water) (cl 5.7).

[14.670] A declared Ramsar wetland is a wetland, or part of a wetland, designated by the

Commonwealth under Article 2 of the Convention on Wetlands of International Importance (1971) (known as the Ramsar Convention), for inclusion in the List of Wetlands of International Importance kept at an international level under the Convention. Parties to the Convention nominate what they consider to be significant wetlands. There is no international scrutiny (see (4.630] and (7.140]). Pending formal designation under Article 2, the Minister can declare a specified wetland to be a declared Ramsar wetland by notice in the Gazette if satisfied that the wetland is of international significance or its ecological character is under threat. This interim declaration can remain in force for up to one year. Some areas which are listed under the Convention are set out in Chapter 7 (see (7.150]).

Development below high water mark [14.680] In general, where a local environmental plan applies, the relevant local council is responsible for regulating development below the high water mark. In other cases, development below high water will be regulated by the Coastal Protection Regulation 2011 or in the case of Sydney Harbour the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 where the Minister (or Roads and Maritime Services as delegate) is frequently the consent authority (see below).

Management of Waters and Waterside Lands Regulations - NSW [14.700] These Regulations make provision in relation to the management of waters and lands vested in or under the control of the Minister for Roads, Maritime and Freight, the Port Authority of NSW or Roads and Maritime Services.

The consent or permission of the Minister or harbour master may be required for particular activities in particular areas. For example:

• •

in relation to the Port of Sydney, the consent of the Minister must be obtained prior to erecting, altering or adding to any wharf or structure (cl 65A) in relation to various port areas: - the Minister's permission must be obtained prior to removing any soil, sand, rock or similar material, or removing or damaging any mangrove or other timber that is growing in the special port area (cl 66) - the harbour master ' s permission must be obtained prior to any disturbance of the bed of a special port (cl 67).

A failure to comply with the Regulations or a condition attached to any approval given is an offence liable to a penalty not exceeding $1,500 and daily penalty of $80 for a continuing offence (reg 118).

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[14.710)

The Coastal Protection Act 1979 Objects of the Coastal Protection Act [14.710] The objects of the Act (s 3) are to provide for .t he protection of the coastal environment

for the benefit of both present and future generations and, in particular:

• to protect, enhance, maintain and restore the environment of the coastal region, its ecosystems, ecological processes, biodiversity, and its water quality • to encourage, promote and secure the orderly and balanced use of the coastal region, having regard to the principles of ecologically sustainable development • to recognise and foster the significant social and economic benefits to the State that result from a sustainable coastal environment • to promote public pedestrian access to the coastal region and recognise the public's right to access • to provide for the acquisition of land in the coastal region • to recognise the role of the community in resolving issues relating to the protection of the coastal environment • to ensure co-ordination of the policies and activities of the Government and public

[14.750)

•

chapter 14 Coastal and riverside land

The Minister recommends to the Governor that an order be made under section 39(1). This prohibits a public authority from carrying out development or granting consent to development within a specified area of the coastal zone without the Minister' s concurrence.

In exercising these powers, the Minister must "promote" the principles of ecologically sustainable development, rather than just "have regard to" them (s 37A; see [5.1350)). An advice may be issued only if the Minister is of the opinion that a particular development in the coastal zone, or its use or occupation, may (s 38(1)(b)(i), (c), (cl)):

• • •

be inconsistent with the principles of ecologically sustainable development adversely affect the behaviour of the sea or any bay, inlet, lagoon, body of water or watercourse, or be adversely affected by the behaviour of such water, or adversely affect any beach or dune, or the bed, bank or foreshore of the sea or any water mentioned above.

Where an advice or order is made, the general position is that the Minister' s concurrence is needed before any public authority, including a local council, can either carry out development in the coastal zone itself, or grant permission to anybody wanting to carry out development or to use or occupy land (ss 38(1), 39(1)). However, there are significant exceptions: concurrence is not required for development that requires development consent, exempt development, development carried out in accordance with a coastal zone management plan (s 37B), and approved State significant development and infrastructure (EPA Act, ss 89J(l)(a), 115ZG(l)(a); see [5.350)).

authorities relating to the coastal region.

What the Minister must consider

What is development? [14.720] "Development" is broadly defined in the Act (Coastal Protection Act 1979, s 37). It

includes the following in relation to the coastal zone:

• the erection or removal of a building • carrying out of a work • the subdivision of land • the clearing or propagation of vegetation including marine vegetation.

[14.740] In deciding whether to grant concurrence, the Minister must consider whether the relevant use or occupation of the coastal zone:

• • •

is inconsistent with the principles of ecologically sustainable development. This includes the precautionary principle (see [7.550)) will adversely affect the behaviour or be adversely affected by the behaviour of the sea or an arm of the sea or any bay, inlet, lagoon, lake, body of water, river, stream or watercourse, or adversely affect any beach or dune or the bed, bank, shoreline, foreshore, margin or flood plain of the sea or an arm of the sea or any bay, inlet, lagoon, lake, body of water, river, stream or watercourse (s 44 ).

The concurrence role of the Minister [14.730] Part 3 of the Act gives the Environment Minister certain powers to control

development in the coastal zone, principally by requiring the Minister's concurrence to development. However, these provisions only come into operation if the Minister chooses to activate them. This may be done in one of two ways:

•

The Minister provides advice to a public authority (including a local council) under section 38(1) of the Act. This prohibits the authority from carrying out a particular development itself, or granting consent to the development, without the Minister's concurrence.

What action the Minister con toke [14.750] The Minister may (s 41):

• refuse concurrence outright • give concurrence either unconditionally or subject to conditions. • • •

For example, the Minister may: require that a structure be set back as far as possible from the foreshore require ongoing monitoring impose a clean-up bond to cover any damage.

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[14.760)

A decision on concurrence must be made within 21 days, unless notice is given that a further period of time is required. If no decision is made within this period, concurrence is no longer required (s 42). Except where concurrence is unconditional, reasons must be given to the public authority concerned. This public authority has a duty to inform any applicant of these reasons (s 46). Where there is a right of appeal under other legislation, for example, to the Land and Environment Court under the EPA Act, the Minister has a right to be heard at the appeal (s 47).

Notification to Minister by public authority [14.760] Where an advice has been issued by the Minister or an order made by the Governor, a public authority must give written notice to the Minister of any relevant development that it proposes to carry out (s 40(1)). Similarly, the public authority must give the Minister notice of its intention to grant any right or consent to a person to use, occupy or carry out development in the coastal zone (s 40(2)).

Minister's direction to other public authorities [14.770] Where concurrence is not required or the requirement for concurrence is breached, the Minister may direct other public authorities to exercise their functions within the coastal zone under other legislation. If another Minister is responsible for the public authority concerned, that Minister's consent must first be obtained (s 52).

It is an offence to contravene the Act (s 57). The maximum penalty is 100 penalty units (s 58(1)) although this does not apply to the Crown (s 5).

Use of the powers to control development [14.780] The Minister's powers to issue advices and orders controlling development may occur, for example, on the following grounds:

• • •

to protect biodiversity to protect the coast for the benefit of future generations to apply the precautionary principle.

If an emergency situation were to occur, such as significant a storm event, a section 38 advice or section 39 order could not be issued. However, emergency protection can now be more easily effected by applying the provisions of a coastal zone management plan (ss 55B, 55C(b)), discussed below.

Section 149 planning certificates [14.790] Certain matters relating to the Coastal Protection Act 1979 must be specified on any section 149 certificate (see (14.710]):

•

if land is affected by a section 38 advice or section 39 order, but only if the local council has been notified that the land is affected

[14.800)

chapter 14 Coastal and riverside land

• whether an order has been made in regard to temporary coastal protection works, except where the council is satisfied that such an order has been fully complied with • whether the council has been notified that temporary coastal protection works (within the meaning of that Act) have been placed on the land (or on public land adjacent to that land) • if works have been so placed - whether the council is satisfied that the works have been removed and the land restored in accordance with that Act. See Environmental Planning and Assessment Regulation 2000, Sch 4, cl 4 for further detail.

Emergency and long term coastal protection works [14.800] The Coastal Council review of the management of NSW beaches (2000) alerted the NSW Government to two problems:

• •

problems with emergency management procedures during ocean storms the continued alienation of public foreshore land as a result of re-determination of mean high water marks that delineate private property boundaries.

In 2002, the Act was amended to give the Minister and local councils stronger powers to protect beaches in emergencies. This was largely in response to actions that had been taken during storm events in an attempt to prevent erosion. Examples of such actions were the dumping of rocks, car bodies and tyres on beaches. Such actions may result in loss of public access, may become permanent features of a beach, or may lead to greater erosion. The hope was that emergency plans would offer better beach protection in the long term because they would involve local councils, the State Emergency Service, the police, government departments, landowners and the local community. The Coastal Protection and Other Legislation Amendment Act 2010 introduced a new scheme which allows certified emergency coastal protection works to be carried out. Emergency coastal protection works are works involving the placement of specified material (such as sand bags) on a beach or a sand dune adjacent to a beach to mitigate the effects of wave erosion on land. At that time, the material could only be placed there if it was reasonably foreseeable that beach erosion was likely to impact on a building being lawfully used for residential, commercial or community purposes (Coastal Protection Act 1979, s 55P). Further reforms made by the Coastal Protection Amendment Act 2012 expanded circumstances in which private persons can place emergency coastal protection works on private and public land. These reforms provide for:

• • • •

the works can be placed at any time on public or private land, the requirement for erosion to be occurring or imminent has been removed ( s 55P) previous restrictions which limit private landowners placing these works on their land only once and only for 12 months have were removed works can be placed on public land for a maximum of two years (formerly one year), commencing on the placement of the works landowners no longer need a certificate from the council or the Office of Environment and Heritage before placing works on private land but a certificate will still be needed for works on public land

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[14.810]

The works must comply with the Code of Practice under the Coastal Protection Act 1979 dated March 2011 (see ell 7- 11). Once authorised under these provisions, emergency coastal protection works are exempted from the need to get certain other approvals, including development consent under Part 4 of the EPA Act (ss 550, 55W). Emergency coastal protection works may be placed on private land only once (s 55S) for a maximum period of 12 months (Coastal Protection Act 1979, s 55Q(l)). The maximum period is extended if, at the expiry of this period, a development application is pending under the Environmental Planning Assessment Act 1979 for development of coastal protection works: activities or works to reduce the impact of coastal hazards on land adjacent to tidal waters, including seawalls and beach nourishment. The maximum period then extends until 21 days after the final determination of that application if the application is refused and otherwise as specified in the consent (s 55Q(2)). The works must be removed and the land restored before the expiry of the maximum period. Failure to do so constitutes an offence. The works can be removed by the relevant Coastal Authority (including the Minister, local councils and public authorities: s 6), which can recover its reasonable costs (s 55Y). A certificate allows the person carrying out the works to place the works on public land without first obtaining a lease or permit, subject to a number of conditions (s 55Z(l)), but these are quite nebulous. For example, "all reasonable measures" must be taken to avoid using or occupying the public land, and to minimise disruption to the public use of any beach. However, they can be enforced by orders issued by Coastal Authorities (s 55ZC(3)). Adjacent private land can only be used to place or maintain works if the landholder has granted an interest in the land (s 55Z(2)) . The landowner must notify the relevant local council of the placement of works. If the works are on public land, the relevant public authority must also be notified (s 55X) . Long term coastal protection works will usually require development consent under Part 4 of the EPA Act. If so, consent must not be granted unless the consent authority is satisfied that:

•

•

the works will not, over their life unreasonably limit or be likely to unreasonably limit public access to or the use of a beach or headland or pose or be likely to pose a threat to public safety, and satisfactory arrangements have been made (by conditions imposed on the consent) for: - the restoration of a beach, or land adjacent to the beach, if any increased erosion of the beach or adjacent land is caused by the presence of the works - the maintenance of the works (s 55M).

Coastal zone management plans for beaches [14.810] Local councils can be required to prepare coastal zone management plans that set out how the council will deal with beach erosion problems during storms, amongst other issues. A local council whose area is within, or partly within, the coastal zone may make a coastal zone management plan, and must do so if directed by the Minister (s 55B) . Where a local council is directed by the Minister to prepare such a plan, it must submit a draft plan within 12 months after receiving the direction, or within such longer period if the Minister agrees (Sch 1, cl 3(1)). If a council fails to submit its draft plan on time, the Minister may make the plan instead, and recover the cost from the council (Sch 1, cl 3(2)).

[14.820]

• •

chapter 14 Coastal and riverside land

A coastal zone management plan must make provision for (s 55C): protecting and preserving beach environments and beach amenity emergency actions that may be carried out under the State Emergency and Rescue Management Act 1989 during periods of beach erosion, such as works for the protection of property affected or likely to be affected by beach erosion caused by storm activity or other extreme events

• ensuring continuing and undiminished public access to beaches, headlands and waterways,

particularly where public access is threatened or affected by accretion (the gradual addition of land through natural processes: see (14.820]). The aim of specifying the works that may be taken under the State Emergency and Rescue Management Act 1989 is to ensure that coastal zone management plans are linked to the plans of the State Emergency Service. A local council must prepare a draft coastal zone management plan in accordance with any guidelines issued by the Minister (s 55D(l)). The relevant guidelines are the Guidelines for Preparing Coastal Zone Management Plans (December 2010) published by the Environment Department. A council must exhibit a draft coastal zone management plan for not less than 21 days for inspection by the public, and place a notice in a local newspaper of the dates and times the draft plan can be inspected (s 55E). Any person may make a written submission during the public exhibition period, and the council must consider all submissions (s 55F(l), (2)). The council may amend the draft plan as a result of the submissions (s 55F(3)). The council must then submit the draft plan to the Minister (s 55G(l)), who may approve or reject it (s 55G(2)) . If the Minister certifies that a draft coastal zone management plan has been prepared in accordance with the requirements of the Act, the council must make the plan and publish it in the Gazette (s 55H(l)). A coastal zone management plan must be available for public inspection without charge at the office of the council during ordinary office hours and on its internet site (s 55]) . Where a coastal zone management plan is in place, the general position is that a person must not carry out work for the purpose, or that has the effect, of preventing or remediating beach erosion, or for protecting property affected or likely to be affected by beach erosion, unless it is in accordance with the plan. This is not, however, necessary where the development has received approval under the EPA Act or has been authorised as emergency coastal protection works (see (14.810]). The maximum penalty is 100 penalty units (s 55K) . The Minister or a council may also bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of a coastal zone management plan.

Enforcement of the Coastal Protection Act [14.820] If the Minister's concurrence is required under the provisions of the Act, an

enforcement notice can be issued to any person who fails to obtain concurrence or comply with any conditions attached. This can include a requirement that buildings or works be demolished

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[14.830]

or removed or that restoration work be carried out. If the notice is not complied with, the Minister may carry out the works and recover the costs and expenses from the person in breach of the notice (s 51). The Coastal Protection and Other Legislation Amendment Act 2010 gave a wide range of new enforcement powers to Coastal Authorities, including the power to issue orders to remove material deposited on beaches and structures (other than existing structures) erected on beaches if, for example, they are likely to cause increased erosion or unreasonably limit public access (ss 55ZA- 55ZC). Failure to comply with an order is an offence.

Restoration orders by the Court [14.830] The Land and Environment Court has the power to make restoration orders (s 56A) . In

any proceedings under the Coastal Protection Act 1979, the court may order a person to:

• prevent, control, abate or mitigate any harm to the environment or any loss of amenity caused by the person • make good any resulting environmental damage • prevent the continuance or recurrence of any harm or loss of amenity.

[14.880]

chapter 14 Coastal and riverside land

Surveying and Spatial Information Regulation 2006, Pt 2, Div 5). Many seawall structures, such as stone revetments, have been built to protect these extended property boundaries from erosion, and this has led over time to the widespread loss and alienation of public foreshore land. As sea levels rise over the next several decades, it is expected that this will become an even greater problem. In response to this problem, the doctrine of accretion and erosion was modified by the 2002 amendments to the Coastal Protection Act 1979. Under the amendments (Pt 4B, s 55N(2)), an applicant for a boundary change must now demonstrate:

• •

that the accretion will be "indefinitely sustained by natural means" that such a determination, if granted, would not restrict or deny public access to a beach, headland or waterway.

Unless an applicant for a boundary change can prove both things, a court may not re-determine a water boundary that would increase the area of land towards the water (s 55N(2), (4)).

This may include the court making an order that a person remove or clean up material dumped during a beach erosion event (s 56A(2)).

Similarly, if a boundary redetermination would encroach onto adjoining Crown land below the mean high water mark, the Minister administering the Crown Lands Act 1989 has no power to approve it unless both the conditions above are satisfied (s 55N(4); Surveying and Spatial Information Regulation 2006, Pt 2, Div 5) .

Accretion and erosion

The Registrar-General has been prohibited altogether from making these kinds of boundary redeterminations under Part 14A of the Real Property Act 1900 (s 55N(3)).

[14.840] For about 50,000 properties in NSW, the seaward boundary is the mean high water

mark along an intertidal foreshore. This is known as an ambulatory boundary, as compared to a right line boundary, which is fixed by survey.

Development on floodplains [14.870] Demand for housing in local areas that have reached their capacity is increasingly

The common law doctrine of accretion and erosion [14.850] The doctrine of accretion and erosion states that an ambulatory boundary (defined by the mean high water mark) may be re-established if the mean high water mark changes either because of erosion or accretion. This applies only if it can be demonstrated that the change took place by "natural, gradual and imperceptible" means (Surveying and Spatial Information Regulation 2006, cl 48(1)). The doctrine does not apply if the change took place otherwise than from natural, gradual and imperceptible accretion or erosion, for example:

• •

pushing development into marginal land such as flood-prone land. Many urban developments involve large-scale filling of low-lying coastal or riverside land in an attempt to provide flood immunity.

Restrictions on planning proposals affecting flood prone land

if movements are rapid or "unnatural", such as erosion caused by a storm event

[14.880] The Planning Minister has issued a general direction to planning authorities under

if the change in the mean high water mark is the result of works constructed by the landowner with the intention of causing accretion.

s 117 of the EPA Act which applies where a planning authority prepares a planning proposal that creates, removes or alters a zone or a provision that affects flood prone land (see [14.900]). The objective of the direction (Direction 4 .3, issued 1 July 2009) is to:

The doctrine does not apply to non-tidal lakes (Crown Lands Act 1989, s 172(4)).

Modification of the doctrine of accretion and erosion [14.860) The doctrine of accretion has often been used by waterfront owners who seek a

boundary redetermination to increase the size of their land (Real Property Act 1900, Pt 14A;

• •

ensure that development of flood prone land is consistent with the NSW Government's Flood Prone Land Policy incorporated in the Floodplain Development Manual 2005 (http://www.environment.nsw.gov.au/floodplains/manual.htm) ensure that the provisions of a LEP on flood prone land are commensurate with flood hazard and include consideration of the potential flood impacts both on and off the subject land.

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• • •

(14.890]

For example, ordinarily, a planning proposal: must include provisions that give effect to and are consistent with the NSW Flood Prone Land Policy and the principles of the Floodplain Development Manual 2005 (including the Guideline on Development Controls on Low Flood Risk Areas) must not rezone land within the flood planning areas from Special Use, Special Purpose, Recreation, Rural or Environmental Protection Zones to a Residential, Business, Industrial, Special Use or Special Purpose Zone

(14.940]

chapter 14 Coastal and riverside land

Flood Risk Management Guide: Incorporating sea level rise benchmarks in flood risk assessments {August 201 OJ [14.910] The Guide relates to the implementation of sea level rise planning benchmarks (developed by council [14.590]). The Guide is designed to assist local councils, the development industry and consultants to incorporate the benchmarks in floodplain risk management planning and flood risk assessments for new development and to update the Floodplain Development Manual for use in the floodplain risk management planning process.

must not contain provisions that apply to the flood planning areas which:

• permit development in floodway areas • permit development that will result in significant flood impacts to other properties • permit a significant increase in the development of that land • are likely to result in a substantially increased requirement for government spending on flood mitigation measures, infrastructure or services, or • permit development to be carried out without development consent except for the purposes of certain agriculture, roads or exempt development.

Is land liable to flooding? [14.920] It is easy to find out if land has already been identified as flood-affected by obtaining a section 149 certificate. A local council must state on any section 149 certificate (see [14.880]) whether land is subject to flood related development controls or any council or other public authority policy that restricts the development of that land because of the likelihood of tidal inundation (see Environmental Planning and Assessment Regulation 2000, cl 7, Sch 4, Items 7 and 7A).

Local government responsibility

Designated development on floodplains

[14.890] Individual councils have primary responsibility for planning and assessing development applications on flood-prone land in urban and some rural areas. This responsibility is constrained by:

[14.930] Development to be located on or near a floodplain is often identified as designated development (Environmental Planning and Assessment Regulation 2000, Sch 3) (see [5.330]). For example, the following developments will be designated development if they are located on a floodplain (Sch 3):

• • •

the Floodplain Development Manual the section 117 Direction (see above), and any relevant regional environmental plan (now a deemed State environmental planning policy).

NSW Floodplain Development Manual [14.900] Under the Manual, local councils are encouraged to:

• establish a floodplain risk management committee • develop, or review an existing, floodplain risk management plan that addresses risk on a strategic basis (rather than an ad hoc or individual proposal basis) • incorporate the relevant parts of flood risk management plans into their local environmental plans and development control plans • recognise the implications of climate change on flooding behaviour, and • require surveys showing ground levels, floor levels and existing buildings for development applications applying to land below flood planning levels (Flood Manual, p 1-4, para 16.3.1). The Manual also encourages councils to recognise that plans are often ineffectual if they relate to individual developments that are separate from an overall floodplain risk management plan.

• • • • • • • • •

aquaculture involving non-indigenous species (cl 3) chemical storage facilities (cl 10) composting facilities (cl 13) contaminated soil treatment works (cl 15) piggeries with more than 200 pigs or 20 breeding sows (cl 21(3)) livestock processing industries (cl 22) petroleum works (cl 27) sewerage system works with a capacity of more than 20 persons or 6 kilolitres a day (cl 29) waste management facilities (cl 32).

A floodplain means a specific flood planning level nominated in a local environmental plan or those areas inundated as a result of a 1 in 100 flood event if no level has been nominated.

Flood mitigation by public authorities [14.940] Under Division 7 of Part 3 of State Environmental Planning Policy (Infrastructure) 2007, development for the purpose of flood mitigation work may be carried out by or on behalf of a public authority without consent on any land. This includes construction works, routine maintenance works and environmental management works in connection with flood mitigation work.

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[14.950)

On flood liable land, a public authority, or a person acting on behalf of a public authority, must not carry out any development that the SEPP authorises without consent that will change flood patterns other than to a minor extent unless the authority or person has:

• •

given written notice of the intention to carry out the development to the council for the area in which the land is located, and taken into consideration any response to the notice received from the council within 21 days after the notice is given.

Civil liability of local councils in respect of flooding [14.950] A question arises as to whether a council will be liable for damages in negligence if it

grants consent to a development that is subsequently damaged by flooding or tidal inundation? At general law, the Council clearly can be liable depending on the nature of the risk and the legislation containing the statutory duty or power being exercised: Sutherland Shire Council v Heyman (1985) 157 CLR 424; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [146], [149].

In deciding whether to grant development consent under Part 4 of the EPA Act, consent authorities are required to take into account the suitability of the site for the development (see [5.1440]). This includes the likely impact of natural events on the proposed development, such as flooding and tidal inundation. Consent authorities are also required to consider the public interest. This will frequently mean that the principles of ecologically sustainable development, including the precautionary principle are relevant in so far as they relate to climate change induced tidal inundation of coastal development (see [5.1370]). Failure to properly consider those matters could result in liability for negligence. Special legislation has, however, been enacted to deal with councils' potential liability. The Local Government Act 1993 (s 733) exempts councils and other government bodies and employees from liability where they give advice in good faith relating to the likelihood of land being flooded or affected by a coastline hazard (s 733(1), (2), (7)). The exemption applies to any council function including (s 733(3)):

• granting or refusing a development consent (which includes building and subdivision work) • making an environmental planning instrument (such as a rezoning) or development control plan • situations where a council carries out flood mitigation or coastal management works itself.

A council will not be liable if a section 149 certificate is incorrect, provided it has acted in good faith (Local Government Act 1993, s 733(3)(d)). A council is presumed to have acted in good faith, unless proved otherwise, if what it has done was "substantially in accordance with the principles contained in the relevant manual" (Local Government Act 1993, s 733(4)). The relevant manual for flood liable land is the Floodplain Development Manual (April 2005). For coastal hazards it is the Guidelines for Preparing Coastal Zone Management Plans (December 2010, revised April 2013) (see [14.810]).

[14.970)

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Case study: Defences in respect of negligent advice [14.960] For a discussion of the "good faith" defence in s 733, see Mid Density

Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290. In that case, the aggrieved developer had been provided with three planning certificates. To the question, "Has the Council any information which would indicate that the land is subject to the risk of flooding or tidal inundation?" each certificate said "No". But on all three occasions, the Council was in possession of information which indicated that the land was subject to a risk of flooding. A civil engineer employed by the Council completed the certificates based on his personal knowledge of the area and without consulting Council records that showed studies noting that the land was subject to a risk of flooding. The Court held that the Council ought to have made a reasonable attempt to answer the question and that it should have had reference to its records, the good faith defence could not be relied on and the Council was negligent. That decision was referred to by the High Court in Bankstown City Council v Alamdo Holdings (2005) 223 CLR 660 ands 733 was given a broad interpretation. In the joint judgment of the Court, their Honours noted at [49] that Mid Densitywas a case in which, whilst not dishonest, the Council had not acted in good faith. There had been no attempt to supply information by recourse to the council's records and there was no system in operation for doing so. Indeed, the council officer whose responsibility it was to deal with the requests for information had consciously ignored the very records which would have supplied it (at [37]). In addition to the good faith defence provided bys 733 of the Local Government Act 1993, Part 5 of the Civil Liability Act 2002 amends the general law regarding the civil liability of local councils and other public authorities (s 41 ). Under section 42(d), if a local council or public authority can demonstrate that it has complied with the general procedures and applicable standards for the exercise of its functions (which presumably would include any of the manuals referred to above), this may be taken as evidence that it has exercised those functions properly if there is a civil liability claim against it to which the Act applies. To prove that the council has breached its duty of care in exercising a statutory power (for example, by negligently granting a development consent under the EPA Act), a plaintiff must be able to show that a council has acted unreasonably (s 43A(3)). The Civil Liability Act is likely to make it more difficult for a person to sue a local council successfully for damage caused by coastal hazards or flooding as a result of any council action or omission.

Works on floodplains in rural areas [14.970] Floodplain control works such as dams, weirs and levees are often built on floodplains and in creek beds in an attempt to control periodic flooding. In particular, levees are often privately constructed to support broad scale farming activities for water-dependent crops such as rice and cotton.

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(14.980]

Water Management Act 2000 reforms [14.980] The Water Act 1912 is to be repealed by the Water Management Act 2000 (s 401,

Sch 7) . At this stage there is no scheduled date for the repeal. Under the Water Management Act 2000, water management plans (see [15.140]) can address floodplain management (Water Management Act 2000, ss 28 - 30). Some provisions of the Water Management Act 2000 will only apply where a proclamation is made commencing those provisions for the relevant part of the State (see s 88A). Subject to any regulations, any land that has been designated as a floodplain under the old Act will be taken to be a floodplain under the new legislation (Sch 9, cl 12). A floodplain management plan under s 166A of the Water Act 1912 will be taken to be a Minister's plan under the Water Management Act 2000 (Sch 9, cl 13). The flood works and aquifer interference approvals provisions of the Water Management Act 2000 have not yet been declared to apply (ss 88A and 90, and see [14.1130]). When they do, flood work approvals will be dealt with under Chapter 3, Part 3 of the Water Management Act 2000 rather than the Water Act 1912 (Water Act 1912, s 186A). These provisions are discussed below at [14.1140]. For further discussion of the Water Management Act 2000 see also Chapter 15 below.

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• •

issue stop work orders (s 180B) carry out the remedial work itself (ss 180D(5), 180E, 180F, 180G).

The Ministerial Corporation is excluded from liability for anything done or omitted under these provisions if it has acted in good faith (s 182).

Floodplain management plans [14.1020] The Office of Water prepares floodplain management plans for rural areas. These set out a scheme for managing flood waters within a floodplain (s 166A). The areas covered by these plans are those areas zoned rural where development consent under the EPA Act is not required for agricultural activities. These are generally areas west of the Great Dividing Range where broad-scale farming activities occur.

Integrated development [14.1030] A development that requires a flood work approval that also requires development consent will constitute integrated development under section 91 of the EPA Act (see [5.370]).

Rivers and lakes Approvals for works on floodplains under the Water Act 1912 [14.990] Works on floodplains in rural areas are regulated by the Water Administration

Ownership of beds of rivers and lakes

Ministerial Corporation (Ministerial Corporation) under Part 8 of the Water Act 1912. In practice, the Office of Water is the regulatory agency.

Controlled works: Part 8 approvals [14.1000] A floodplain must be declared before it is affected by Part 8 of the Water Act 1912

(s 166). Controlled works, which include earthworks, embankments and levees on declared floodplains, require an approval under section 167.

It is an offence to construct, enlarge, extend or modify a controlled work without an approval (ss 165(3), 180). These provisions bind the Crown as well as local councils (s 186). There is an elaborate process for granting an approval under Part 8 of the Act, including (ss 166C - 178A):

• the right to make objections • inquiries by local land boards • appeal rights.

Tidal rivers and Jokes [14.1040] In general, the land below the mean high water mark is owned by the Crown. Where foreshores or banks and beds of rivers and lakes are not owned by a ports corporation, they may either be Crown land or privately owned, depending on the terms of the original disposition of Crown land. (See box below for more information on ports corporations.) For example, if the bed of the river was reserved from sale or lease before adjacent land was disposed of, then the bed will be Crown land and the owner of the adjoining land has no rights of access over or use of the bed of the river (Crown Lands Act 1989, s 172(7)). In 1918, for example, all the beds of rivers and their tributaries in the Eastern and Central Divisions of NSW were "temporarily" reserved from sale or lease (Government Gazette, 3 May 1918, p 2116). Rights acquired under the Water Management Act 2000, such as an approval to build a weir (see [14.1160] below), are not affected by this provision (Crown Lands Act 1989, s 172(9)).

See also the discussion of doctrine of accretion and erosion at [14.840].

Port Authority of NSW and ports corporations

The Ministerial Corporation's powers [14.1010] The Ministerial Corporation has extensive powers. It can:

• •

remove or alter unapproved works, even those that were constructed before Part 8 came into force in 1984 (s 180D) direct remedial works (s 180D)

[14.1050] Ports corporations were established under the Ports Corporatisation and Waterways

Management Act 1995. Examples were:

• •

the Sydney Ports Corporation (covering Sydney Harbour and Port Botany) the Newcastle Port Corporation

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[14.1060]

the Port Kembla Port Corporation.

The Port Authority of New South Wales was established in July 2014 with the amalgamation of the Sydney, Newcastle and Port Kembla port corporations. The Authority has significant maritime responsibilities for Sydney Harbour, Port Botany and Port Kembla and the ports of Newcastle, Eden and Yamba.

[14.1110]

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preclude ownership, the practical effect is the same. These provisions do not affect any rights acquired under the Water Management Act 2000 (Crown Lands Act 1989, s 172(9)).

Leases and licences to use Crown land [14.1090] If the bed or bank of the river is Crown land, then activities can only be carried out if

Non-tidal rivers and Jokes The middle line rule [14.1060] If a Crown grant or conveyance describes land as being "bounded by non-tidal waters", then title to the land is presumed to extend to the middle line of the stream or water. This is known as the middle line rule (ad medium filum aquae fluminis). The rule applies to all land under Torrens title (Lanyon Pty Ltd v Canberra Washed Sand Pty Ltd (1966) 115 CLR 342), and has been confirmed by statute in NSW (Real Property Act 1900, s 45A).

The middle line rule is, however, only a rebuttable presumption. This means that the rule will not be followed if there is evidence that the boundary was intended to be elsewhere. For example, the original Crown grant or a later document may indicate that title up to the middle line was never intended to pass to later owners. You will therefore need to look at the surveys held by the Registrar-General, or even the original Crown grant, to determine where the legal boundary is. See Aquilina v Blacktown City Council [2009] NSWSC 140 for an example where the presumption was rebutted. In the case of a river, the line is drawn from the limit of the bed (but not the high or low water mark that exists in times of flood or drought (see s 172(1) and Surveying and Spatial Information Regulation 2006, cl 45). Where there is an island in the middle of a river, ownership of the island is determined according to the middle line of the river.

Where the middle line rule does not apply [14.1070] The middle line rule does not apply to tidal waters because the land below the mean high water mark generally belongs to the Crown. The rule also does not apply to non-tidal lakes, as these also remain in the ownership of the Crown (Crown Lands Act 1989, s 172(3)). The doctrine of accretion and erosion (see [14.840]) does not apply to a non-tidal lake (s 172(4)).

Statutory restrictions on the middle line rule [14.1080] The effect of the middle line rule has, however, been substantially restricted by legislation in relation to any land:

• alienated since the bed of the adjoining river was reserved from sale or lease under the •

Crown Lands Acts (see Gazette, notices 3 May 1918, folio 2116; 11 May 1923, folio 2253; 31 May 1935, folio 2157); or alienated under the Crown Lands Act 1989 or the Crown Lands (Continued Tenures) Act 1989 (with the exception of certain leases).

Section 172(5) and (7) of the Crown Lands Act 1989 provides that the ownership of such land does not carry any right of access over or use of any part of the river bed. While this does not

an interest, such as a lease or a licence, has been granted under the Crown Lands Act 1989 or the Western Lands Act 1901 (see [4.40]). For example, if somebody wishes to erect a structure such as a resort, marina or jetty on Crown land, or wants to extract gravel or sand from a river bed that is Crown land, then, in addition to obtaining any other permissions such as development consent, they will either have to purchase the land or obtain a lease or licence under the Crown Lands Act 1989.

Development on river banks and beds [14.1100] River banks usually support a high diversity of plants and animals, some of which

play an important role in water quality protection and bank stability, and may be threatened or endangered. Alteration to the natural flow of rivers and streams, and their floodplains and wetlands has been listed as a key threatening process affecting threatened species (Threatened Species Conservation Act 1995, s 8 Sch 3). The Director-General may decide to prepare a threat abatement plan for such processes (s 74) (see [12.190]).

New South Wales State Rivers and Estuaries Policy 1993 [14.111 OJ The NSW State Rivers and Estuaries Policy is a mechanism for promoting ecological integrity. The objectives of the NSW State Rivers and Estuaries Policy are:

•

To manage the rivers and estuaries of NSW in ways which: - slow, halt or reverse the overall rate of degradation in their systems - ensure the long-term sustainability of their essential biophysical functions, and - maintain the beneficial use of these resources. The six management principles are:

• those uses of rivers and estuaries which are non-degrading should be encouraged • non-sustainable resource uses which are not essential should be progressively phased out • environmentally degrading processes and practices should be replaced with more efficient and less degrading alternatives • environmentally degraded areas should be rehabilitated and their biophysical functions restored • remnant areas of significant environmental values should be accorded special protection • an ethos for the sustainable management of river and estuarine resources should be encouraged in all agencies and individuals who own, manage or use these resources, and its practical application enabled.

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Application of the Policy in the development assessment process [14.1120] The Policy was a pp lied by the Land and Environment Court in G HD Pty Ltd v

Palerang Council [2009] NSWLEC 1342 as a means of assessing whether a proposed development for a 40 lot residential subdivision was consistent with the principles of ecologically sustainable development. The proposed development involved the excavation of fill to place residential lots above the 1:100 year flood level. The result was that Turallo Creek would accommodate low flows but higher flows would be diverted through a series of landscaped ponds created through the extraction of the fill material and forming an artificial wetland. The Court held that the proposal was inappropriate having regard to the principles of ecologically sustainable development, including, because the proposal did not promote ecological integrity as assessed in accordance with the Policy.

Control of works in and near watercourses

(14.1160)

It is an offence to construct or use a work without a licence or permit. The maximum penalty for a corporation is 200 penalty units or 20 penalty units per day, and for a person 100 penalty units or 10 penalty units per day (s 21B).

•

•

and river beds is being reformed.

Part 2 licences and permits under the Water Act 1912 are being replaced, and former permits under Part 3B of the Rivers and Foreshores Improvement Act 1948 have been replaced by controlled activity approvals issued under Part 3 of Chapter 3 of the Water Management Act 2000.

• •

Approvals under Part 3 of Chapter 3 of the Water Management Act 2000 include: water use approvals water management work approvals, which include: - water supply work approvals - drainage work approvals - flood work approvals

• activity approvals, which include: • controlled activity approvals • aquifer interference approvals.

However these approval provisions only apply where they have been activated by proclamation (s 88A) . At this stage, the controlled activity approvals provisions apply to the whole of the State and water supply work and water use approvals provisions apply to certain prescribed water sources. For a list of the proclamations made to date, see the Editorial Note to s 88A on the NSW Government legislation website at http://www.legislation.nsw.gov.au.

Licences and permits to construct works under Water Act 1912 [14.1140] Where applicable, works in and adjacent to watercourses must be licensed under

Part 2 of the Water Act 1912.

Works include dams, reservoirs, weirs, channels, wells, excavations, pipes and any machinery and appliances.

Under Part 2, the Ministerial Corporation can issue: a licence under section 10(1) to any occupier of land where a work is or will be constructed or used: -

[14.1130] The legislation that regulates the construction of works on, in and near river banks

The Water Act 1912 is to be repealed by the Water Management Act 2000 (s 401; Sch 7) but as of August 2015 the provisions had not yet fully commenced. Both pieces of legislation are currently administered by the Office of Water in the Department of Primary Industries.

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•

a licence under section 13A to any occupier of land to construct and use a work for: - domestic water supply - stock water supply - irrigation a permit under section 18F for constructing works for: -

•

for water conservation for irrigation for supply for drainage to change the course of a river

water conservation irrigation of an area not exceedini 4 hectares water supply or drainage changing the course of a river

an authority under section 20CA for construction of a joint water supply scheme.

If a work requires both a licence under Part 2 and development consent, it constitutes integrated development under section 91 of the EPA Act (see [5.370]). Approvals under the Water Management Act 2000

Water use approvals [14.1150] Water use approvals (s 89) confer a right to use water for a particular purpose at a particular location and are dealt with in Chapter 15.

Water management work approvals [14.1160] There are three kinds of water management work approval (s 90):

• a water supply work approval, which authorises the construction and use of a specified water supply work at a specified location • a drainage work approval, which confers a right to construct and use a particular drainage work at a specified location • a flood work approval, which confers a right to construct and use a flood work at a specified location. There are a range of exemptions set out in ,-Division 2 of Part 4 of the Water Management (General) Regulation 2004. For example, some dams are exempt from the need for approval unless they are on environmentally sensitive land (Sch 1, cl 39).

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Activity approvals

Applications for approval

[14.1170] There are two kinds of activity approval:

[14.1210] Any person can apply for an approval (s 92(1)). All approvals are issued by the Water Minister, currently the Minister for Primary Industries (Water Management Act 2000, s 92(2); Water Management (G eneral) Regulation 2011, cl 23). The Minister must keep a public register of all approvals at the head office and each regional office of the Department (Water Management Act 2000, s 113; Water Management (General) Regulation 2011, cl 27).

• •

controlled activity approvals (s 91(2)). aquifer interference approvals (s 91(3)).

Controlled activity approvals [14.1180] The following activities carried out at a specified location in, on or under waterfront

land require a controlled activity approval (s 91(2), Dictionary):

• the erection of a building or the carrying out of a work or • the removal of material, including extractive material, or vegetation from land, or • the deposition of material on land, or • the carrying out of any other activity that affects the quantity or flow of water in a water source. Waterfront land is defined to include the bed of rivers, lakes and estuaries and areas up to 40 metres inland. There are a range of exemptions that apply, set out in Division 2 of Part 3 of the Water Management (General} Regulation 2011. Public authorities (other than Landcom) and local councils are entirely exempt from the requirement to obtain an approval to carry out a controlled activity. Also, a controlled activity approval is not required for approved State significant development or infrastructure (EPA Act, ss 89J(l)(g), 115ZG(1)(g); see [5.350]).

Aquifer interference approvals [14.1190] An aquifer interference activity is an activity involving (Dictionary):

• • • •

penetration of an aquifer interference with water in an aquifer obstruction of the flow of water in an aquifer taking of water from an aquifer in the course of carrying out mining or the extraction of silica sands or road base material, or the disposal of water taken from such an aquifer.

Examples of where an aquifer interference approval may be needed include sand mining, extractive operations, road construction and any other large scale activity that involves excavation.

Enforcement [14.1200] A person who constructs or uses a water supply work, drainage work, flood work and

who does not hold the relevant approval for that work, is guilty of an offence punishable with up to 10,000 penalty units where a corporation is involved (ss 91B, 91C, 91D).

Works that need both an approval under the Water Management Act 2000 and development consent will constitute integrated development under the EPA Act (s 91) (see [5.370]). The Minister may declare a temporary or permanent embargo on the making of applications for approvals (ss 110, 111). An application must be accompanied by an assessment of the likely impact of the work concerned if the Minister requires (Water Management (General) Regulation 2011, cl 23). Such an assessment may also be required under Part 5 of the EPA Act (see Chapter 6).

Public participation [14.1220] An application for an approval must be advertised if:

• •

it is specified by the regulations (s 92(7)), or the application also constitutes integrated development.

Examples of applications that need to be advertised include a wide range of applications for water supply work approvals (including all applications for works for taking water from a river, and many works designed to impound water and capture rainwater run-off), water use approvals for irrigation, and where advertising is required by any relevant management plan (Water Management (General) Regulation 2011, cl 24(1)). Applications for water supply work approvals do not need to be advertised where the water supply work is to be used for less than 6 months or for nominated purposes such as road construction or maintenance, drought relief and dust suppression (Water Management (General) Regulation 2011, cl 24(2)). Where advertising is required, the application must be published in a local newspaper, and in a newspaper circulating among those indigenous communities that could be affected by the granting of such an approval and on the Department's internet website (Water Management (General) Regulation 2011, cl 24(5)). Any person can object to the granting of an approval that has been advertised (s 93(1)) . The Minister must endeavour to resolve the issues raised by consultation, mediation or neutral evaluation. The costs of this are to be paid by the Minister (s 93(5), (6), (7), (8)).

If someone objects to the granting of an approval that has been advertised, and is dissatisfied with the result, they may appeal to the Land and Environment Court within 28 days of the date of the Minister's decision (s 368). Such a person loses their right to appeal if:

The same penalty applies to a person who carries out a controlled activity in, on or under waterfront land, or an aquifer interference activity and who does not hold the relevant activity approval for that activity. They are guilty of an offence, punishable with up to 10,000 penalty units where a corporation is involved (ss 91E, 91F).

• •

In addition, anyone may bring proceedings in the Land and Environment Court to remedy or restrain a breach of the Act or regulations (s 336).

It appears that the latter reference should be to a hearing of the Planning Assessment Commission under that Act.

they have failed to participate in mediation or neutral evaluation (s 368(2)(a)( ii )), or there has been a Commission of Inquiry held under s 119 (now repealed) of the EPA Act (s 368(2)(6)).

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Applicants can also appeal to the Land and Environment Court against a refusal, condition, cancellation or suspension of an approval (s 368(1)). Any objector to an application that has been advertised is entitled to become a party to the appeal if they give notice to the Land and Environment Court of their wish to do so (s 368(4)(a)).

The NSW Coastal Policy 1997 (see [14.90]), the Coastal Protection Act 1979, and SEPP 71 (see [14.190]) all apply to estuarine areas as well as to coastal areas, and may also contain provisions relevant to the protection of rivers and streams.

Determining applications

Extractive operations

[14.1230] An approval may not be granted if it contravenes the provisions of any relevant water management plan (s 95(3)). In considering whether or not to grant an aquifer interference approval the Minister must consider whether the amount of water taken in the course of carrying out the aquifer interference activity to which the approval relates will exceed the total extraction limit for the aquifer set out in any relevant management plan (s 96 and Water Management (General) Regulation 2011, cl 26).

The Minister may not grant a water management work approval unless satisfied that adequate arrangements are in force to ensure that no more than minimal harm will be done to any water source, or its dependent ecosystems, as a consequence of the construction or use of the proposed water management work (s 97(2)). A controlled activity approval is not to be granted unless the Minister is satisfied that adequate arrangements are in force to ensure that no more than minimal harm will be done to any waterfront land as a consequence of the carrying out of the proposed controlled activity (s 97(4)).

[14.1250] Gravel and sand (such as silica sand) are not listed as minerals and their extraction is therefore not regulated by the mining legislation (Mining Act 1992, s 4; Mining Regulation 2010, Sch 1, cl 5). By contrast, the minerals generally found in heavy mineral sands - ilmenite, leucoxene, monazite and zircon - are listed as minerals. Large deposits of heavy mineral sands are found in the Murray Basin. Rutile, the other common mineral in heavy mineral sands, was listed as a mineral under the Mining Act 199 2 on 31 October 2005. Its prior omission may well have been unintentional. "Clay/shale" is also listed as a mineral. Mining is dealt with in detail in Chapter 18.

Sand and gravel extraction

An aquifer interference approval is not to be granted unless the Minister is satisfied that adequate arrangements are in force to ensure that no more than minimal harm will be done to the aquifer, or its dependent ecosystems, as a consequence of its being interfered with in the course of the activities to which the approval relates (s 97(6)).

[14.1260] The extraction of sand or gravel that is not classified as a mineral is assessed under Part 4 of the EPA Act and any relevant environmental planning instruments. For example, sand mining along the coast for construction purposes is likely to require development consent under a local environmental plan. In cases covered by Item 7 of Schedule 1 of State Environmental Planning Policy (State and Regional Development) 2011 where consent is required, extractive operations are declared to be State significant development (see [18.490]).

Approvals are generally issued for a maximum term of ten years and can be extended for that period (ss 104(1), 105). An approval granted to a major utility or a local water utility has effect for a period of 20 years or, if that 20 year period is extended under section 105, for that extended period. An approval is attached to the land and each successive landholder has the benefit (s 106).

"Extractive industries", which may include sand and gravel extraction, may be designated development under Schedule 3 of the Environmental Planning and Assessment Regulation 2000, and if so, a development application is required to be accompanied by an environmental impact statement (see [14.390]).

The Minister may suspend or cancel an approval for various reasons, including noncompliance (s 109).

Extraction of sand or gravel in, under or within 40 metres of a watercourse may also require a controlled activity approval under the Water Management Act 2000 (see [15.570]). Extraction of any material that interferes with an aquifer will require an aquifer interference approval if those provisions have been declared to apply in that part of the State (s 91(3); see [15.610]) subject to any applicable exemption. Interfering with an aquifer includes the extraction of silica sands and of road base material (Water Management (General) Regulation 2011, cl 22).

Other protection for rivers and streams [14.1240] Some works in watercourses are regulated under the Fisheries Management Act 1994. A person must obtain a permit to create any kind of obstruction across or within a bay, inlet, river or creek, or across or around a flat if this could obstruct the free passage of fish or destroy immature fish (s 219). However, this does not apply if the activity is already permitted under other legislation (s 219(5)). If the work also requires development consent, then it will be integrated development (EPAAct, s 91(1); see [5.370]).

If the excavation of a riverbank is likely to result in soil erosion, then a stop work or remedial notice may be issued under the Soil Conservation Act 1938 (see [14.1240]). In limited circumstances, a local council may issue an order to prevent or remedy under section 124 of the Local Government Act 1993 (Item 11) (see [8.70]) where work carried out on land has caused or is likely to cause environmental damage by drainage, drainage works, or obstructing a natural watercourse.

Pollution licences for dredging [14.1270] Under Schedule 1 of the Protection of the Environment Operations Act 1997, water based extractive activity involving the extraction of more than 30,000 cubic metres per year of extractive material, either for sale or re-use, by means of dredging or other water based methods is classified as a scheduled activity (see [9.660]) and requires a licence.

Crown land [14.1280] Extraction of sand or gravel on Crown land (such as riverbeds) usually takes place under a licence that authorises the use or occupation of Crown land (Crown Lands Act 1989, s 45).

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A licence to remove gravel, sand, loam, stone, clay, shells can be granted over Crown land even if the land is already held under a Crown lease (Crown Lands Act 1989, s 49(3)) .

• Acid sulfate soils [14.1290] Excavation of soil beneath or close to coastal rivers and estuaries may disturb acid sulfate soils. When these soils are exposed to oxygen they subsequently cause the release of sulphuric acid, which can pollute waterways and injure fish and other aquatic life.

chapter 14 Coastal and riverside land

rdaguidelines/documents/ NSW%20Acid%20Sulfate%20Soils%20Assessment%20Guidelines.pdf) has been given to the consent authority, and the consent authority has provided written advice to the person carrying out the works confirming that the results of the preliminary assessment indicate that the proposed works need not be carried out pursuant to an acid sulfate soils management plan prepared in accordance with the Guidelines.

The acid sulphate soil risk maps

Local Environmental Plans [14.1300] The Planning Department has issued Acid Sulfate Soils Planning Guidelines (August

1998) (http://www.planning.nsw.gov.au/rdaguidelines/documents/ NSW%20Acid%20Sulfate%20Soils%20Planning%20Guidelines.pdf). Maps have also been produced, showing land where acid sulphate soils are likely to be present (see box below). Many local environmental plans in coastal areas contain specific provisions concerning acid sulfate soils. This is partly in response to a direction issued by the Planning Minister under section 117 of the EPA Act (see [14.1290]). The current Direction for new planning proposals (Direction 4.1) has the objective of avoiding significant adverse environmental impacts from the use of land that has a probability of containing acid sulfate soils. The Direction applies to planning authorities responsible for land on acid sulfate soils planning maps held by the Planning Department. When the planning authority prepares a planning proposal that will apply to this land the planning authority must consider the Guidelines. The Direction requires provisions to regulate works in acid sulfate soils to be consistent with the Acid Sulfate Soils Model local environmental plan in the Acid Sulfate Soils Planning Guidelines adopted by the DirectorGeneral. The Direction also prohibits planning proposals that intensify land uses on such lands without a study assessing appropriateness.

Environmental impact statements [14.1310] Many high impact developments are deemed to be designated development because they are, or may be, on or near acid sulfate soils (see Environmental Planning and Assessment Regulation 2000, Sch 3 ). This means that an environmental impact statement must be submitted with the development application, and third party appeals will be available (see [14.390]).

[14.1330] The acid sulfate soils risk maps are a series of 1:25 000 maps covering all coastal councils in NSW. They were prepared by the Planning Department to form the basis for amendments to local environmental plans. The Environment Department has also issued the Acid Sulfate Soils Remediation Guidelines for Coastal Floodplains in NSW (2008).

Reclamation and dredging [14.1340] In practice, reclamation is generally discouraged. Permanent reclamation of accreted land has become much more difficult since the 2002 amendments to the Coastal Protection Act 1979, which modified the doctrine of erosion and accretion (see [14.840]). The Ports Minister, currently the Minister for Roads, Maritime and Freight, may direct a person to remove any unauthorised reclamation if it constitutes an obstruction to navigation, or may have it removed whether or not a notice has been issued (Marine Safety Act 1998, s 16).

Permits for dredging and reclamation [14.1350] There are continued pressures for dredging to maintain navigable ocean entrances in coastal and estuarine environments, and for the artificial nourishment of beaches. The principal legislation regulating dredging and reclamation in NSW is the Fisheries Management Act 1994, Part 7, Division 3. The purpose of these provisions is to conserve biodiversity of fish and aquatic vegetation and to protect fish habitat (s 198). Under the Act, a person, corporation or local council must obtain a section 201 permit from the Minister for Primary Industries before carrying out any dredging or reclamation work. The Act applies to all land submerged by water and wetlands and to certain dredging and reclamation work (ss 198A, 198B).

"Reclamation work" means any work that involves (s 198A):

Sydney Harbour [14.1320] Clause 36 of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, applies to the Foreshores and Waterways Area within what is generally Sydney Harbour. It allows excavation, dredging, filling or contouring of land or the extraction of soil or other extractive material without development consent if:

•

a copy of a preliminary assessment of the proposed works undertaken in accordance with the Acid Sulfate Soils Assessment Guidelines published by the NSW Acid Sulfate Soils Management Advisory Committee (August 1998) (http://www.planning.nsw.gov.au/

• using any material such as sand, silt, gravel, concrete, oyster shells, tyres, timber or rocks to fill in or reclaim land • draining water from any land for the purpose of reclaiming it. "Dredging work" generally includes (ss 198A, 198B, Fisheries Management (General) Regulation 2010, cl 263 ):

• •

any work that involves excavating water land, or work that involves the removal of woody debris, snags, gravel beds, cobbles, rocks, boulders, rock bars or aquatic vegetation from water land

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• work that involves the removal of any other material from water land that disturbs, moves or harms woody debris, snags, gravel beds, cobbles, rocks, boulders, rock bars or aquatic vegetation. A person may appeal against a decision of the Minister regarding dredging and reclamation work to the Land and Environment Court (s 202).

Where a permit is not required [14.1360] A permit is not required if work is authorised under the Crown Lands Act 1989, or if

it is carried out or authorised by a public authority (other than a local council) (ss 201(2), 200(2) ). A public authority must nevertheless give the Minister written notice before it carries out or authorises dredging or reclamation work, and must consider any matters that are raised by the Minister (s 199).

Enforcement [14.1370] The maximum penalty for dredging or reclaiming land without a permit is 2,000 penalty units for a corporation or local council, or 1,000 penalty units for a person (ss 201(1), 200).

If dredging work does go ahead without a permit, or if permit conditions are breached, the Minister can order those concerned, including local councils, to carry out any work necessary to rectify damage caused to the fisheries and fish habitat (s 203(1)). It is not necessary that a person or council be charged with an offence before an order is given (s 203(4)). A court that convicts a person of an offence may also order rectification (s 203(2)). If the Minister's order is not complied with, then the Minister may see that the work is carried out and recover the costs (s 203(3)).

Dredging below mean high water mark [14.1380] In areas not covered by local environmental plans (Coastal Protection Act 1979, ss 39(3), 37B), the concurrence of the Environment Minister is required under the Coastal Protection Regulation 2011 for dredging carried out below the mean high water mark in the coastal zone (excluding any estuary, lake or artificial harbour). There is an exception where the dredging is of sediment in water of a depth greater than 30 metres below mean sea level and the volume of sediment removed is less than 100 cubic metres per year (cll 4-6).

Planning controls [14.1390] Some environmental planning instruments contain provisions relevant to dredging and reclamation. Under State Environmental Policy (Infrastructure) 2007, dredging and reclamation works are permissible as part of construction works for port facilities and wharf and boating facilities carried out by public authorities (cl 68). Other development for the purpose of dredging may be carried out by any person with consent on any land (cl 69).

Clause 69 appears to be inconsistent with, and will therefore prevail over, the special provisions that apply in the Foreshores and Waterways Area under Sydney Regional

(14.1390]

chapter 1 4 Coastal and riverside land

Environmental Plan (Sydney Harbour Catchment) 2005, (generally Sydney Harbour). Under that instrument, dredging is permissible with consent, maintenance dredging is generally permissible without consent but intertidal dredging and reclamation is prohibited (cl 18). Where development consent is required for dredging or reclamation, in addition to a permit under the Fisheries Management Act 1994, the integrated development provisions of the EPAAct will apply (s 91(1); see [5.370]).

If development consent is not required for the grant of a permit under the Fisheries Management Act 1994, then environmental assessment may still be required under Part 5 of the EPAAct (see Chapter 6 and Fisheries Management Act 1994, s 282A).

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15 Water supply Kathryn Ridge Solicitor Ridge & Associates Pty Ltd

Water resource management in NSW ........................................................................................................ [15.20] National responses .................................................................................................................................................. [15.70] Water Management Act 2000 (NSW) .................................................................................................... [15.140] Licences ...................................................................................................................................................................... [15.51 OJ Approvals ................................................................................................................................................................... [15.710] Trading water ........................................................................................................................................................... [15.740] Community participation ................................................................................................................................... [15.820] Irrigation areas ........................................................................................................................................................ [15.850] Offences under the Water Management Act 2000 .......................................................................... [15.940] The Sydney Water Catchment ...................................................................................................................... [15.970] Water efficiency .................................................................................................................................................. [15.1020]

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[15.10] Water is an essential part of the ecosystem. It shapes, nourishes and provides habitat to other parts of the environment and is itself affected by the health and management of other natural resources and development activities.

This Chapter focuses on issues of water quantity rather than water quality. Water pollution is regulated by the Protection of the Environment Operations Act 1997 and is dealt with in Chapter 9. Other legislation also deals with water pollution; for example, it is an offence to damage a stock watering place under the Rural Lands Protection Act 1998 (s 136).

[15.50]

chapter 15 Water supply

• riparian use (see [15.210]). Non-consumptive use includes: • environmental allocation, for instance to maintain river flow levels • water losses such as evaporation and leakage. Water regulation and the economy [15.40] Once water supply was made more certain by regulation of rivers, investment m

Water resource management in NSW Regulation of rivers [15.20] The key water management issue in NSW is that natural flows are variable. This is vital for the ecosystem but not well suited to farming. Over the past 150 years, NSW has constructed a series of large dams across our inland rivers to supply regional towns and agricultural enterprises with year-round water. This has completely altered the river flows, and has had a dramatic impact on our natural ecosystems.

The process of damming river flows to control the flow of water down the river is called regulation. NSW's inland rivers drain into the Murray-Darling Basin. Seventy five percent of the Murray River flows come from upstream of the confluence of the Murray and Murrumbidgee and only 10% from the Darling River and its tributaries (see Murray Darling Basin Rivers: Ecosystem Health Check, 2004-2007 (2008), Sustainable Rivers Audit, Murray Darling Basin Authority: http://www.mdba.gov.au at 2) (Murray Darling Eco Healthcheck). Approximately 85% of the median flow of the Murray-Darling is fully developed or overallocated to consumptive uses. "Overallocation" means that the amount of water that can be extracted under licence in the river valley exceeds the amount of water available in the river. Coastal rivers of NSW are less regulated: only the Bega, Hunter and Richmond Rivers have large dams. The majority of coastal rivers have smaller dams and weirs, although many have substantial structures such as floodgates that impede tidal flow. The Paroo River is the only unregulated inland river in NSW. It is also the only river which was assessed as good on the fish condition index by the CSIRO Sustainable Rivers Audit. Weirs, dams and other regulatory structures impede fish passage unless expressly modified to allow for fish passage.

Consumptive and non-consumptive use [15.30] This Chapter frequently distinguishes between consumptive and non-consumptive use of

water. Consumptive use includes:

• irrigation • town water supply

irrigation infrastructure and industrial enterprises in rural towns grew, as did the local economies. A megalitre is 1 million litres (approximately the volume of an Olympic swimming pool). A gigalitre is one thousand megalitres, or one thousand million litres. Irrigated agriculture is the major water consumer in the Australian economy, accounting for 90% of water consumption in 2005-06 - 2010-11 water years. In that period, Australian agriculture used an annual average of 8,232 gigalitres of water. Agricultural irrigation used a total of 7,400 gigalitres (90%), while 1,158 gigalitres (9%) was used for other agricultural purposes (see Bureau of Meterology, Australian Water Resources Assessment 2012, 2013, http://www.bom.gov.au/water/awra/2012/documents/summary-hr.pdf). Approximately 70% of the water extracted for irrigated agriculture in Australia is extracted from the Murray Darling Basin (see Murray Darling Eco Healthcheck at 2). The gross value of Australian agriculture is approximately $42 billion, of which close to $32 billion is exported. Irrigated agriculture generates approximately $12.3 billion of the gross value. However it is often noted that while irrigated agriculture generates about one quarter of the annual value of agriculture, it represents approximately 80% of the net farm profits, from a very small land mass (approximately 0.5%). Currently NSW irrigation produces:

• half of Australia's rice production • one quarter of NSW's fruit and vegetable production • 42 % of NSW's grape production. Historical notes [15.50] Irrigation areas were initially developed in the south and south west of NSW, particularly in the Murrumbidgee Irrigation Area. Eight irrigation areas were proclaimed over Crown land. Irrigation was originally driven by a government policy to populate the inland using inducements such as the soldier settlement scheme. Originally irrigation was for fruit, but as water from the Snowy Hydro scheme became available, irrigation for rice also developed.

Since that time, irrigation in NSW has expanded in the north of the State, for the development of irrigated cotton. This includes very large developments such as Lake Tandou (below the Menindee Lakes on the Darling River), which has over 14,000 hectares fully developed for irrigation.

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As water licence entitlements have become tradeable, and more secure, the price of entitlements and temporary allocation trades have increased. This has led to higher value products such as cotton coming into areas which have traditionally irrigated lower value crops such as rice.

[15.80]

• •

Environmental issues [15.60] With the development of regulation and irrigation, and the rapid expansion of irrigation during the last half of the 20th century, most of the inland rivers became overallocated.

• • •

The side effects of overuse include: salinity loss of habitat (such as the die back of Murray River red gums) blue green algae blooms.

One of the major threats to irrigation in NSW is shallow groundwater, artificially raised by excess leakage of irrigated water. The ground water rises and brings with it dissolved salts. This increases the salinity of the soil and (importantly) the salinity in the root zone. Salt scalds can occur on the surface, making the land unsuitable for production. According to CSIRO, failing to do anything about this problem may result in "potential agricultural losses totalling $414 million over 30 years" (Recent Outcomes of CSIRO Research for Australia: A Briefing to Government, available through http://www.csiro.au). Almost two thirds of water for irrigation comes from government-owned infrastructure, and a third from private entities, such as Murrumbidgee Irrigation. Irrigation corporations (see [15.850]) are the largest users of bulk water - that is, water delivered from regulated rivers.

•

[15.70] Until recently the Commonwealth has not ventured into water regulation, in part because of lack of clarity in relation to its constitutional powers. It has no specific power to legislate in relation to interstate water management apart from the trade and commerce power, including navigation and shipping on rivers (which was an important issue at the time the Constitution was enacted in 1900). In addition section 100 of the Constitution provides:

The Commonwealth shall not, by any law of regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation. The legal position has changed in recent years because of the expansive interpretation that the High Court has given to other Commonwealth powers in the Constitution; particularly the external affairs and corporations powers (see [1.450]). These and other powers have been relied on by the Commonwealth to enact the Water Act 2007 (Cth) (see below) . In addition, section 100 is currently being interpreted restrictively.

The High Court has recently held that it does not prevent the Commonwealth legislating in relation to groundwater management (ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; [2009] HCA 51 and Arnold v Minister Administering the Water Management Act 2000 (2010) 240 CLR 242; [2010] HCA 3). The High Court in Morgan v Commonwealth (1947) 74 CLR 421 held that section 100 only restricts Commonwealth legislation which is based on the trade and commerce power (although there are suggestions from the High Court in Arnold that this may not be the final word on the matter). Water management legislation designed to protect the instream environment can be made under other powers, particularly the external affairs power which authorises legislation implementing international conventions such as the Convention on Wetlands of International Importance (1971: known as the Ramsar Convention), the UN Convention on Biological Diversity (1992) (see Chapter 12) and the UN Framework Convention on Climate Change (1992) (see Chapter 10). Section 100 only protects the "reasonable" use of water for irrigation: there is a persuasive argument that the States have been allocating the waters of the Murray-Darling Basin quite unreasonably.

Commonwealth initiatives [15.80] In 1994, the Council of Australian Governments (COAG) announced its intention to develop consistent water resource policy in Australia to address the widespread natural resource degradation caused, in part, by water use.

This process developed into the National Water Initiative (2004 ), along with the MurrayDarling Basin Agreement (see [15.90]) and eventually led to the reform of legislation dealing with water access in ·all States.

National responses Th e constitutional position

chapter 15 Water supply

• •

Major features of the reform process included: delivery of environmental flows institutional reform

• pricing that reflects the true cost of water • •

the separation of water entitlements from land title the right to trade water.

The Commonwealth Parliament finally legislated a role for the Commonwealth in 2007, the Water Act 2007. This was accompanied by the Murray Darling Basin Intergovernmental Agreement on Reform, commonly referred to as "Water for the future". This set out a major water purchase program "Restoring the Balance" also known as the Commonwealth buyback ($3 .1 billion), and a water efficiency program "Sustainable Rural Water Use and Infrastructure" ($5.8 billion). Other programs were also established: the National Water Accounts (Bureau of Meteorology) and the National Water Market (http://www.nationalwatermarket.gov.au).

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The Notional Water Initiative [15.90] In 2002, COAG determined that its mltlatrves had not been fully implemented in

relation to water rights. In 2003, it announced the National Water Initiative, which provided commitments to:

• improve the security of water access entitlements (see below) • ensure ecosystem health by protecting environmental assets at a whole-of-basin, aquifer or catchment scale • ensure the best use of water (see below) • encourage water conservation in cities, including better use of stormwater and recycled water.

Improving the security of water entitlements [15.100] The security of water entitlements can be improved by:

• •

clearly assigning risks of reductions in future water availability (see below) returning allocation to sustainable levels.

Ensuring the best use of water [15.11 0] Methods of ensuring the best use of water include encouraging the expansion of water

markets and trading across and between districts and States. This involves:

• clear rules for trading • robust water accounting arrangements • pricing based on full cost recovery principles.

The National Water Initiative was developed further by the Commonwealth Government, which considered it necessary to take over the management of the Murray Darling Basin in the national interest. The National Water Initiative is now complete but the Commonwealth has not yet announced what program will take its place. For a full report on the outcomes achieved, the National Water Commission published its fourth and final report, Australia's water blueprint: national reform assessment 2014, September 2014, available at: http://www.nwc.gov.au/_data/ assets/pdf_file/000 8/3 7 673/Part-1-accessible-PD F-for-web-NWC-Australias-wa ter-61 ueprint_ national-reform-assessment-2014.pdf.

Water Act 2007 (Cth] [15.120] The Water Act 2007 (Cth) created for the first time a direct statutory role for the Federal Government in water management and licensing.

chapter 15 Water supply

(15.120)

Structurally, the Act enables the Murray Darling Basin Authority to administer functions conferred on the Commonwealth by the Murray Darling Basin Agreement (s 18E(l)). Further the Act provides that there will be a Basin Plan to provide for the integrated management of Basin water resources (s 20). The Basin Plan must be prepared to give effect to relevant international agreements (s 21(1). Without limiting that objective it must also be prepared with regard to the need for special measures to protect Basin biodiversity, promote sustainable use of Basin water resources to protect and restore ecosystems and natural habitats, and promote conservation of Basin wetlands (ss 21(2), (3)). The Water Act 2007 gives specific guidance on how the Plan should be prepared, on the basis of the principles of ecologically sustainable development (ESD), best available science and socio economic analysis, and having regard to the National Water Initiative, consumptive and other economic uses of Basin resources, the diverse and variable nature of Basin water resources, the management objectives of the Basin States and social cultural and indigenous issues (s 21(4)), amongst other matters. Importantly there is to be no net reduction in the protection of planned environmental water from that currently provided for under State water management laws (s 21(5)). The Basin Plan must be prepared having regard to the fact that the Commonwealth and Basin States have agreed that critical human water needs are the highest priority water use for communities dependent upon Basin water resources, and that to give effect to this priority, conveyance water will receive first priority in the River Murray system (s 86A- the River Murray System includes Darling River downstream of Menindee, and critical human water needs as far south as Wellington in South Australia). Conveyance water is the additional water required to deliver critical human water to the offtake point, say to the Adelaide drinking water offtake point. Critical human water needs are defined as follows: (a)

core human consumption requirements in urban and rural areas; and

(b)

those non-human consumption requirements that a failure to meet would cause prohibitively high social, economic or national security costs.

Section 22(1) of the Water Act 2007 spells out what must be included in the Basin Plan (mandatory content). Further content may be included, if prescribed (s 22(8)). Mandatory content includes, a description of the Basin water resources, identification of the risks to condition or continued availability of the Basin water resources and strategies to manage such risks, management objectives and outcomes and maximum long term annual average amounts of water that can be taken on a sustainable basis.

The Federal Government relied on constitutional powers, particularly its external affairs power (ss 9 and 9A for the full list), to introduce this legislation in light of opposition from some States, particularly Victoria. This has meant that an express object of the Act is to "give effect to relevant international agreements ... and to provide special measures ... to address threats to the Basin water resources" (s 3(6)).

The long term average sustainable diversion limit must reflect an environmentally sustainable level of take (s 23).

Further, section 3(d) requires a return to environmentally sustainable levels of extraction of water resources, to protect, restore and provide for ecological values and ecosystem services of the Murray Darling Basin.

It is anticipated that there may need to be a transition period from current levels of take to the proposed levels of take under the Basin Plan, accordingly there is provision for "temporary diversions" to minimise social and economic impacts (s 24) . There is a limit of 5 years to

A key limitation on the scope of the Basin Plan is that it cannot regulate land use planning, management of other natural resources, or pollution control (ss 22(10), (11)).

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transition to the new sustainable diversion limits (ss 24(5), (6), (7)) if the adjustment is less than 5%. If the adjustment is more than 5%, a fresh determination of temporary diversions may be made for another period of 5 years. Apart from the Basin Plan, there must be the following Plans:

• Water Quality and Salinity Management Plan (s 25) • Water Trading and Transfer rules (s 26) • Environmental Watering Plan (s 28).

The purpose of the Environmental Watering Plan is to safeguard existing environmental water, plan for recovery of additional environmental water and coordinate management of all environmental water to ensure protection and restoration of wetlands and other environmental assets of the Basin and protection of Biodiversity dependent upon the Basin water resources and to achieve other environmental outcomes (s 28(1)). The Basin Plan is binding on all Basin States, water infrastructure operators and holders of water access rights (s 35). All State water resource plans must be consistent with the Basin Plan (s 55(2)). It is anticipated that the State water resource plans will be accredited against requirements (s 22(1), Item 11) through the Basin Plan. The Basin Plan was adopted by Minister Burke on 22 November 2012. Pursuant to the Water Regulation 2008, reg llA.02, a number of transitional water plans prevailed over the Basin Plan to the extent to any inconsistency apart from water trading rules for a short period of time; see Schedule 5 to the Water Regulation 2008. In NSW most transitional water plans have ended as of 30 June 2015, apart from some exceptions, such as the Border Rivers Regulated River Water Source 2009 Water Sharing Plan, and the Water Sharing Plan for the Peel River Valley, Regulated, Unregulated Alluvium and Fractured Rock Water Sources 2010.

Environment Protection and Biodiversity Conservation Act - Water trigger

[15.160]

chapter 15 Water supply

Water Management Act 2000 (NSW] [15.140] In 2000, the NSW Government passed the Water Management Act 2000 as part of its commitment to the decisions of COAG. The Act provided for key elements of reform, such as:

• • • •

separation of water entitlements from land ownership planning processes for delivery of environmental flows managing access to consumptive water users such as town water supplies and irrigation integration with natural resource and planning laws.

Under the Water Management Act 2000, all water that flows into an identified water source is allocated to consumptive and non-consumptive uses (see [15.180]) through water-sharing plans. Apart from the management of the water sources, the Water Management Act 2000 provides for a system of licences and approvals for:

• • •

water access water use water management works.

Water access licences define a limited property right to access a share of the bulk water available in a particular water source. At present, the legislation is still in a period of transition and in some places, such as Sydney, the Water Act 1912 continues to operate rather than the Water Management Act 2000.

Administration of the Act [15.150] The Water Management Act 2000 is administered by the Water Minister, currently the

Minister for Primary Industries and the Office of Water, currently incorporated into the Department of Primary Industries. In this Chapter, these are referred to as the Minister and the Department respectively. Prior to changes introduced by the incoming Coalition Government in 2011, the Office of Water was part of the Environment Department.

[15.130] Finally it should be noted that the Environment Protection and Biodiversity

Conservation Act 1998 (Cth) (EPBCAct) has been amended to include a new trigger, section 24D for developments which have a significant impact upon water resources (see [15.20]). Section 24D provides, relevantly:

(1)

A constitutional corporation, the Commonwealth or a Commonwealth agency must not take an action if: (a)

(b)

the action involves: (i)

coal seam gas development; or

(ii)

large coal mining development; and

The Department is the regulator and manager of water in NSW. The Water Management Act 2000 regulates management of water through water management plans. The Act regulates:

• • •

the registration of water interests and dealings water supply and works infrastructure private irrigation areas.

The Water Act 1912

the action: (i)

has or will have a significant impact on a water resource; or

[15.160] Before the Water Management Act 2000, water management in NSW was regulated by

(ii)

is likely to have a significant impact on a water resource.

the Water Act 1912. This has now been repealed except for:

This provision has not yet been tested in Court.

•

section 7

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•

(15.170)

Parts 3, 4, 6, 7 and 10, which relate to water sources without water management plans (see below).

Access to water from some rivers is still managed under the Water Act 1912 (proclamation of the Governor made on 30 June 2004 ). This will continue until water-sharing or water management plans are prepared for these rivers under the new Act.

• • •

Rivers that are still managed under the Water Act 1912 are: the Brogo River unregulated portions of all regulated rivers, such as Condamine Balonne, Paroo, Barwon, Macquarie, Castlereagh etc the Belubula River.

All water sources in NSW are managed under the Water Management Act 2000 or Water Act 1912 under transitional arrangements, except for:

• •

(15.220]

chapter 15 Water supply

Basic water rights [15.190] Landholders have limited rights to access and use some water without an access licence. These rights are:

• • •

stock and domestic rights harvestable rights native title rights.

Water rights under common law [15.200] Previously, there was a common law riparian right to water. This was abolished by

section 393 of the Water Management Act 2000 from 1 January 2001. The Act partially replaced the common law right with:

water sources that form part of the water supply system for Sydney, which are managed under the Water NSW Act 2014

• •

the Snowy Hydro, which is managed under the Snowy Hydro Corporatisation Act 1997.

What was the riparian right?

a statutory stock and domestic right (s 52), and a harvestable right (s 53 ).

[15.21 OJ The riparian right was a right to ordinary and reasonable uses of water that flowed naturally past a property. It was an incident of property in land adjacent to a river or stream. It

Water-sharing plans [15.170] Water-sharing plans have been developed for 46 water source areas Statewide. These water sources provide approximately 80% of the water extracted for consumptive use. An up-to-date list with links to the plans and the program to review and replace the plans in accordance with the Murray Darling Basin Plan is maintained by the Office of Water at: http://www.water.nsw.gov.au/water-management/water-sharing/plans-review.

Water sources

originally extended to the use of the water for irrigation purposes as long as it did not result in a diminution of flow (see Embrey v Owen (1851) 6 Ex 353 and H Jones and Co Pty Ltd v Kingborough Corporation (1950) 82 CLR 282). The Water Act 1912 (ss 5 - 7) had modified the common law riparian right by restricting use to:

• • •

domestic purposes watering of cattle or other stock watering a garden area not exceeding five acres.

[15.180] The Dictionary to the Water Management Act 2000 defines a water source as being the

Rights under the Water Management Act

whole or any part of "one or more rivers, lakes or estuaries, or one or more places where water occurs naturally on or below the surface of the ground".

[15.220] The Water Management Act 2000 (s 52) allows an owner or occupier to take water,

There may be both a river and a groundwater system in a valley. For example, the Murrumbidgee catchment has a water-sharing plan for part of the Murrumbidgee river and a separate groundwater-sharing plan.

and construct a water supply work to use water, for:

• •

domestic purposes stock watering purposes.

The section defines domestic as being for normal household purposes. Stock watering does not include:

The term "water source" is an imperfect policy tool. Most water bodies have interrelationships with other adjacent water bodies. For example, the Gwydir river interacts with several groundwater systems. If the river is low, water may drain from the groundwater system into the river bed but when the river floods into the floodplain, the groundwater system can recharge.

• •

However, some adjacent groundwater systems may float above each other and may have entirely different physical characteristics (eg, salinity and pH). Such systems may not mix at all, and may even flow in different directions.

There are some areas where subdivisions are common (eg, the north coast of NSW). In these areas more water is extracted under section 52 because every time there is a subdivision, each new block gets a right to take water for stock and domestic purposes. In these cases, the Minister may restrict or regulate such use (s 52). To date no regulations have been gazetted which restrict the growth of stock or domestic rights upon subdivision.

the watering of stock intensively on a commercial basis stock kept permanently, or for a substantial period of time, in a feedlot or housed in a building.

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[15.230)

Harvestable rights [15.230] If the Minister has published an order in the Gazette, landholders are allowed to construct dams to retain for on-farm use water that would normally leave their property after rainfa ll (s 54 ). The orders must specify what proportion of water can be retained. The proportion cannot be less than 10% and may be more.

• •

Two such harvestable rights orders have been made by the Minister: one relating to the eastern and central division of NSW, which allows for 10% of the average regional rain runoff to be harvested and used on-farm one relating to the western division, which allows for the capture for on-farm use of all rain runoff in dams on all minor streams.

Both orders commenced on 31 March 2006 (see http://www.nsw.gov.au/sites/default/files/ pdfs/2006/3 lst_March. pdf#page=36).

Native title

[15.280)

• the Barwon-Darling • the Namoi • the Gwydir • the Lachlan • the Macquarie-Cudgegong • the Murray-Lower Darling • the Murrumbidgee • the Hunter. All other rivers in NSW are unregulated. The website of the Office of Water supplies more detailed information on the parts of these rivers, and their tributaries, that are regulated. It also publishes the Ministerial water allocations under the Act, in the form of available water determinations and supplementary water orders (http://www.water.nsw.gov. a u/wa ter-management/wa ter-a vaila bili ty/wa ter-alloca tions).

[15.240] NSW was the only State that specifically provided for native title rights in relation to

water. Section 55 of the Water Management Act 2000 provides that a native title holder (see [19.290]) is not required to obtain an approval to take and use water in the exercise of native title rights. The native title rights to water can be used for a range of purposes - personal, domestic and non-commercial communal purposes such as manufacturing traditional artefacts, hunting, fishing and gathering, and recreation, cultural and ceremonial purposes. The regulations may prescribe a maximum amount of water that may be used by a native title holder in any one year for domestic and traditional purposes (s 55(3)). As yet no limit has been prescribed. It is arguable that any such limit would be effective against native title holders.

Bulk water supply [15.250] Bulk water is untreated water supplied directly from rivers to irrigation and town

water supplies. The capacity to maintain a stable and controlled supply of bulk water is vital to rural communities such as Griffith, Tamworth, Dubbo and Broken Hill.

A good map is also available from State Water. Most of the bulk water consumed in NSW is from regulated rivers. Because of the limited water sources in NSW, and the inevitable tension between consumptive and non-consumptive water users, the first water-sharing plans were prepared for regulated rivers, or parts of regulated rivers, that have the highest commitments to bulk water users.

Objects of the Water Management Act [15.280] Under section 3, the overall object of the Water Management Act 2000 is "to provide for the sustainable and integrated management of the water sources of the State for the benefit of both present and future generations".

• • •

[15.260] The regulation of rivers is the process of capturing and storing water by constructing

What rivers ore regulated? [15.270] The following rivers are regulated within the meaning of the Water Management Act

2000:

Section 3 also sets out the following particular objects: applying the principles of ecologically sustainable development (see [1.190]) protecting, enhancing and restoring water sources, associated ecosystems, ecological processes and biological diversity and their water quality recognising and fostering the social and economic benefits to NSW that result from the sustainable and efficient use of water, including: -

Regulation of rivers dams and weirs. The captured water is then managed, in the context of natural river and groundwater flows, to provide a stable long term water supply. The large dams which regulate NSW's rivers also provide a valuable flood mitigation service to rural NSW.

chapter 15 Water supply

• • •

benefits to the environment benefits to urban communities, agriculture, fisheries, industry and recreation benefits to culture and heritage benefits to the Aboriginal people in relation to their spiritual, social, customary and economic use of land and water

recognising the role of the community, as a partner with government, in resolving issues relating to the management of water sources providing for the orderly, efficient and equitable sharing of water from water sources integrating the management of water sources with the management of other aspects of the environment, including the land, its soil, its native vegetation and its native fauna

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• encouraging the sharing of responsibility for the sustainable and efficient use of water between the Government and water users • encouraging best practice in the management and use of water. The objects of the Act should be referred to when construing provisions of the Act (see Kirby J's remarks in Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 at 537 and Spigelman CJ's comments in Nature Conservation Council (NSW) Inc v Minister Administering the Water Management Act 2000 (2005) 137 LGERA 320; [2005] NSWCA 9 at [91]).

Water management principles [15.290] Section 5(2) of the Water Management Act 2000 sets out the following general water management principles:

• Water sources, floodplains and dependent ecosystems (including groundwater and wetlands) should be protected and restored. Where possible, land should not be degraded. • Habitats, animals and plants that benefit from water or are potentially affected by managed activities should be protected. Habitats should be restored. • The water quality of all water sources should be protected and, wherever possible, enhanced. • The cumulative impacts of water management licences, approvals and other activities on water sources and their dependent ecosystems should be considered and minimised. • Geographical and other features significant to Aboriginal people should be protected. • Geographical and other features of major cultural, heritage or spiritual significance should be protected. • The social and economic benefits to the community should be maximised. • The principles of adaptive management should be applied, and should be responsive to monitoring and improvements in understanding of ecological water requirements. Section 5 also provides specific water management principles in relation to:

• water-sharing

• water use

• drainage management • floodplain management • controlled activities • aquifer interference activities. The water-sharing principles ins 5(3) provide that sharing of water from a water source must:

• protect the water source and its dependent ecosystems • protect basic landholder rights • sharing or extraction of water under any other right must not prejudice these protections.

Under section 9, anyone exercising functions under the Act must do so in accordance with these water-sharing principles and must promote them in the order which they are _set out in section 5(3).

[15,320]

chapter 15 Water supply

Chief Justice Spigelman has held that the intention of sections 5 and 9, when read together, is that decisions about water-sharing should "give priority to protecting the water source and its dependent ecosystems" (Nature Conservation Council (NSW) Inc v Minister administering the Water Management Act 2000 (2005) 137 LGERA 320; [2005] NSWCA 9 at [54]).

The State Water Management Outcomes Plan [15.300] Section 6 of the Water Management Act 2000 provides for a State Water Management Outcomes Plan (SWMOP). The initial SWMOP, which was gazetted in 2002, lapsed in 2007 and has not been replaced. It set the overarching policy, targets and strategic outcomes for the development, conservation, management and control of NSW water sources. The SWMOP needed to be consistent with government policy in relation to the environmental objectives for water quality and river flow.

Government agreements and policies [15.31 0] There is a need for the Water Management Act 2000 (NSW) and its regulatory plans to be consistent with any intergovernmental agreement or government policy. This includes Schedule F of the Murray-Darling Basin Agreement 1992, which limits further extractions from the overallocated Murray-Darling Basin. Schedule F is known as the "Murray-Darling Basin cap".

The Basin Plan has now set an extractive limit of 10,873 GL per annum as the environmentally sustainable level of take. This limit has replaced the Murray-Darling Basin cap. The Basin Plan establishes sustainable levels of take for each water resource area, known as sustainable diversion limits (SDLs) and shared recovery target contributions and a local water resource targets for each water source. There is a process provided for in the Basin Plan which reviews the constraints to environmental water delivery, and projects that may provide greater water use efficiency or more effective environmental water delivery and can be used as a basis for adjusting the SDL, either up or down. This adjustment cannot be more than 5%, or 540 GL. The States must nominate projects and a public adjustment figure be announced by the Murray Darling Basin Authority by mid-2016. After consultation, but before 2019 when the SD Ls become effective, the Minister will need to determine the final adjustment. A factsheet on the process is available at: http:// www.mdba.gov.au/sites/default/files/pubs/Fact-sheets/How-the-limits-on-take-in-MDBA-canchange. pdf. More than two thirds of the recovery targets have already been contracted or arranged through State and Commonwealth arrangements to date. For details on the recovery process to date, refer to the following detailed table prepared by the MDBA: http://www.mdba.gov.au/sites/ default/files/EWR-estimates-30-June-2015-detailed.pdf.

Water management plans [15.320] Under the Water Management Act 2000, the Minister can choose to prepare one of two types of plan:

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• •

(15.330)

[15.370)

a water management plan on advice of a water management committee (ss 15 - 18, 35 - 44)

Case study: How much of a river's water can be allocated?

a Minister's plan (s 50).

The Minister may make this choice whether or not a draft plan has been submitted by a water management committee. A Minister's plan is not a secondary or subordinate form of plan (see Chief Justice Spigelman's comments in Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11; (2005] NSWCA 10).

[15.350] In Nature Conservation Council (NSW) Inc v Minister Administering the

Water Management Act 2000 (2005) 137 LGERA 320; [2005] NSWCA 9, the Nature Conservation Council challenged the validity of the water-sharing plan for the Gwydir regulated river water source, which was a Minister's plan. One of the grounds of challenge was that the Minister's plan did not provide water for the river's environmental health as required by sections 8(2), 9(1)(6), 20(1)(a), and 50 when read together. Section 48 also requires the Minister to take all reasonable steps to ensure that any environmental water rules established by the plan are observed.

What plans con deal with [15.330] Water management plans may deal with:

• water-sharing (ss 19 - 21) • water uses (ss 22 - 24) • drainage management (ss 25 - 27) • floodplain management (ss 28 - 30) • controlled activities and aquifer interference activities (ss 31 - 33) • environmental protection (s 34).

Clause 14 of the Minister's plan did reserve water for the environment, but only water in excess of the long term extraction limit. The Gwydir river is generally acknowledged as an overallocated regulated river system - that is, more water can be legally extracted than is available. The effect of clause 14 was to require water above the long term extraction limit to be reserved for the environment. The Court of Appeal held that clause 14 inverted the statutory requirement for a water-sharing plan. The legislation required that a bulk access regime be established having regard to the environmental water rules; instead, clause 14 established environmental water rules having regard to the bulk access regime (at (68]).

A plan need not deal with all these matters. Section 17 of the Water Act 1912 provides a list of matters that may be included in a water management plan. These include provisions for:

• preserving and enhancing water quality • imposing conditions that require monitoring and reporting • imposing mandatory conditions for access licences and approvals • how, and how much, the Minister may amend the management plan while it is in force.

The last provision is important because it relates to compensation that may be available to water access licence holders under section 87(1). If a water-sharing plan is amended in a way that is not as set out in the plan, and this reduces the access entitlement, compensation may be payable (s 87(2)).

Formulating a pion [15.340] When formulating a water management plan, a water management committee must have due regard to (s 18):

• the socioeconomic impacts of the proposals being considered • the provisions of any relevant catchment action plan • whether activities outside the water source area will have impacts on the water source. This is a weaker obligation than that under section 9 (see (15.320]).

chapter 15 Water supply

However, the Court of Appeal held (at (94]) that the Minister's failure to observe the requirements of a legislative scheme did not mean that the plan was invalid because a substantial volume of water would still flow to the environment.

Making a plan [15.360] Part 3, Division 8 of the Act sets out the process for making a water management plan, and this is outlined below.

A Minister's plan may adopt the same process, or may dispense with one or more of the procedural requirements of Part 3, if the Minister' s plan relates to one or more water sources or water management areas (s 50(2A)). In Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11; [2005] NSWCA 10 at (141] the NSW Court of Appeal noted the flexibility the Minister has when dealing with one or more management areas. It should be noted that this is now the basis for all of the proposed Macro Water Sharing Plans (see (15.480]).

What is required in a plan [15.370] A water management plan must have (s 35):

• • • •

a VlSlOn

objects strategies performance indicators to measure the strategy's success.

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(15.380)

Notification of preparation of a plan [15.380) Under section 36, when the Minister forms a view that a draft water management plan

(15.470)

• •

chapter 15 Water supply

re-exhibit the plan refuse to make the plan.

should be prepared, notification must be given to:

• • • • • •

councils in the water management area

Concurrence of the Environment Minister

catchment management authorities in the water management area access licence and approval holders in the water management area any other persons the Minister may determine. The notification must contain: the general objectives of the plan the source to which the plan relates.

Those notified have a period of 28 days (or longer, if specified) to make submissions to the Minister on the preparation of the draft water management plan.

[15.420) The Minister must obtain the concurrence of the Environment Minister before:

• • •

[15.390) After the draft water management plan has been prepared, the water management

committee must submit it to the Minister (s 37). If the Minister forms a view that the draft plan does not meet the requirements of Part 3, the Minister can send the draft plan back to the committee.

Exhibition of the plan [15.400) Once the Minister is satisfied that the draft water management plan is suitable, the plan must be publicly exhibited (s 38). If it contains environmental protection provisions, the Minister must consult with the Planning Minister.

• •

The notice of public exhibition must: show the locations at which the draft plan may be inspected how copies may be obtained

• allow at least 40 days for submissions to be made.

making a water management plan (s 41) amending or repealing a plan.

Amending or repealing a plan [15.430) A water management plan may be amended by a subsequent water management plan

(s 42).

However, even if notification did not take place, the management plan is valid (s 36(3)).

After the draft is prepared

making a Minister' s plan (s 50(3))

• • •

The Minister may amend or repeal a plan if (s 45): it is in the public interest to do so the plan provides for such an amendment or repeal the Land and Environment Court makes a finding that requires such an amendment or repeal.

Duration and time limits [15.440) A water management plan has effect for 10 years if made on 1 July of any year. If it is not made on that date, it has effect for 10 years from 1 July in the following year (s 43 ).

All the currently gazetted water-sharing plans have effect for 10 years from 1 July following the date of the proclamation under s SSA of the Water Act 1912 (Water Management Act 2000, Schedule 9, cl 63). Most water sharing plans expire 30 June 2014.

Extensions: water-sharing plans

Copies of the submission must be sent to the water management committee, unless it is a Minister's plan (s 39).

[15.450) If the water management plan is a water-sharing plan, and the Natural Resources Commission makes a recommendation to the Minister, the Minister may extend the plan's duration before its expiration for a further period of 20 years. A plan can be extended more than once, and does not require the concurrence of the Environment Minister (s 43A).

After submissions are received

Review

[15.410) Once the water management committee has considered the submissions and finalised the draft water management plan, it must resubmit the plan to the Minister (s 40). The Minister is required to consult the water management committee before making any alterations to the draft water management plan, unless it is a Minister's plan.

[15.460) In the fifth year of its operation, a water management plan must be reviewed m consultation with the Environment Minister (s 43).

• • •

The Minister, having considered the resubmitted plan, may (s 41 ):

Minister's plans

make the plan

[15.470) Under section 50, the Minister may make a water management plan if:

make part of the plan make alterations to plan as they see fit

• •

the area affected is not within a water management area, or the area affected does not have a water management plan, or

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a water management plan is in force but does not deal with the matters to be dealt with by the Minister's water management plan. In general terms, a Minister's plan:

• must address any matter that a water management plan must deal with • can address any matters that a water management plan may deal with. How water-shoring plans hove been developed in practice [15.480] In practice, all of the 46 gazetted water management plans are Minister's plans and all of them are water-sharing plans. Most plans came into effect on 1 July 2004.

They were developed in draft form by water management committees appointed by the Minister. These water management committees were initially provided with very little direction, and until the SWMOP was gazetted in 2002 (see [15.490]) these draft water-sharing plans differed widely in content and quality. The draft plans were exhibited for public comment by the Department, which considered the public submissions, revised the draft water-sharing plans and sent them back to the committees for review and acceptance. Once the water management committee had endorsed the watersharing plan, the plan was gazetted.

[15.500]

• managing water quality outcomes in line with the Water Quality and Salinity Management Plan • some aspects of water trading • managing the water for sustainability of the resources including recognising the local impacts of take and accounting for water management • setting out Indigeneous values and uses of water based on consultation • risks to the resources • taking into account potential and emerging threats to the water resource including extreme events • use of information and data and recognising compliance requirements • monitoring, reviews of the WRPs and using the best available data The MDBA has prepared a useful guide for practitioners on the Water Resource Plan requirements: see http://www.mdba.gov.au/sites/default/files/WRP-Handbook-forPractitioners.pdf. The NSW Department of Primary Industry - Water has proposed a timetable for reviewing the current Water Sharing Plans, and preparing Water Resource Plans which is as follows: Commencing July 2017

Understanding water-sharing plans [15.490] Water-sharing plans have been criticised for their complexity. Justice McClellan has said (in Murrumbidgee Ground Water Preservation Association v Minister for Natural Resources [2004] NSWLEC 122 at [135]):

I very much doubt whether most people affected by the plan could ever understand it ... if the literal meaning of some clauses is adopted, the plan cannot operate. The plans are further complicated by the technical terms that are used. Many of the terms used in water-sharing plans (such as long term average annual diversion limits or daily flow rules in coastal rivers) are explained in water policy advisory notes available on the website of the Office of Water (www.water.nsw.gov.au/Wa ter-Management/Water-sharing/Advisory-notes/ default.aspx).

chapter 15 Water supply

Alluvium • Gwydir Gwydir surface water'" • Lachlan Alluvium • Macquarie/Castlereagh • Alluvium • Macquarie/Castlereagh surface water'' Murray Alluvium • Murrumbidgee • Alluvium • Namoi Alluvium

Commencing July 2018

Eastern Porous Rock • Intersecting • surface waterStream Lachlan surface water • Namoi surface water • NSW Border • Alluvium Rivers Great Artesian • NSW Basin Shallow • Western Porous Rock

Commencing July 2019

Barwon Darling surface • water Alluvium • Darling Murrumbidgee surface • water and South West • Lachlan Fractured Rock England Fractured • New Rock and Northern

• •

Basalts NSW Border Rivers surface water NSW Murray/Lower Darling surface water

The process of review has already commenced for Batch 1, which will commence in July 2017.

Water Resource Plans [15.500] The Basin Plan, in particular at Chapter 10, sets out the requirements for all water resource plans made by States to meet to be accredited as a Water Resource Plan.

Each Water Resource Plan will need to provide:

• water resource management arrangements consistent with Basin Plan, including ensuring extraction is consistent with the SDL for that Water Resource Area • providing for environmental watering to occur in a way that is consistent with the Environmental Watering Plan and the Basin-wide environmental watering strategy

Each Water Resource Plan will have not only a new accredited Water Sharing Plan/s, but also the following documents:

• • • • •

a water quality management plan an index document which details how Basin Plan provisions are addressed in the various WRP documents an overview document which summarises the information used in the plan development a risk assessment report relevant policy documents.

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[15.510)

While not part of the water resource plans, the Long Term Environmental Watering Plans (development to be led by the NSW Office of Environment and Heritage) are proposed to be developed concurrently to ensure these two management documents are aligned.

Licences [15.510] The Water Management Act 2000 provides for three main types of licence or approval:

• water access licences • water use approvals • water management works approvals.

If someone wishes to extract water for use on their land, they require all three types of approval.

[15.570)

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The table below compares the features of licences to access water under the Water Act 1912 and the Water Management Act 2000. Features

Water Act

Water Management Act

term

5 year term (generally)

status of licence volume or share? conditions

attached to land

effectively perpetual; plans in place for 10 years or more separate from land title

holders entitled to a given volume of water conditions variable, without compensation difficult to trade entitlement

holders entitled to a share of the available water changes to conditions are usually compensable fully tradable, with some restrictions

cannot use licence for security

security interests are registered and have priority

entitlement tradable? usable as security?

Transitional arrangements [15.520] There are approximately 7,000 water licences and approvals issued under the Water Act 1912. All licences will eventually be converted to Water Management Act 2000 licences in accordance with the process outlined in Schedule 10 to the Water Management Act 2000. This process is complete for approximately 80% of the water volume extracted in NSW.

Part 2, Chapter 3 of the Water Management Act 2000 sets out how licences under the Water Act 1912 are converted to licences under the new Act. As each part of NSW or a water source is declared under section SSA, the old licences under the Water Act 1912 will be converted into licences under the Water Management Act 2000. Currently approximately 3,000 licences are managed under the Water Management Act 2000 and are maintained on the water access licence register kept by Land and Property Information.

Transferring from a water licence (15.530] In practice, the Office of Water writes to each licence holder and verifies their

ownership and details of the licence. Existing licence holders will receive, under the Water Management Act 2000:

• a water access licence • a water use approval • a water management works approval.

Water access licences [15.550] A water access licence allows the holder to (s 56):

• have access to a share of the water available under a water-sharing plan • have that access at a certain place in the water management area • have that access at certain times, rates or circumstances. It should be noted that while projects declared under the Environmental Planning and Assessment Act 1979 to be State significant development or State significant infrastructure (see [18.490]) are exempt from a range of regulatory requirements, water access licensing is not one of them.

How much is the entitlement? [15.560] The licence does not guarantee the amount of water the holder is entitled to in a given

year. This is determined by the availability of water in the water source. Available water determinations are made by the Minister and may be varied throughout the water year according to the prevailing weather and storage circumstances (s 59). Previously, for regulated rivers, water allocations were made as annual allocation announcements.

[15.540] Water access licences do not require renewal unless they are cancelled, because the

Under both the current and previous arrangements, unregulated rivers operate on "cease to pump" rules. This means that the pumps may operate when the water is above a certain level in the river, but must cease once the river levels fall below a certain level.

licence holder breaches the conditions of the licence or the water management plan (see [15.320]).

Water allocation accounts

Water use and works approvals last for two years, or until the expiry of the existing approval, if that is a longer period. Applications can be made to extend the approvals for a period of a further ten years.

[15.570] Under the Water Management Act 2000, all water access licences have a water allocation account (s 85) This account will show how much water is available to a licence holder at any given time. It shows:

Renewals

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[15.580)

the share component (in units) the available water determination (in megalitres per unit). Every time the licence holder extracts water, the water allocation account is debited.

All water accounts are credited and debited by the Department on a year that commences 1 July and ends 30 June each year.

Determining the entitlement

[15.660)

•

chapter 15 Water supply

high and general security licences (see below).

If water allocations have to be reduced, under section 58 there is a hierarchy of priorities between the different types of water access licences. Priority, from highest to lowest, is as follows: 1

local water utility access licences, major utility access licences and domestic and stock access licences

2

regulated river (high security) access licences

3 4

access licences, which have priority between themselves as prescribed by the regulations supplementary water access licences.

[15.580] To find out how much they are entitled to extract, a holder must multiply the number

of units they are entitled to by the current available water determination. If a licence holder has 100 shares at the beginning of the water year, and the available water determination is 0.75 megalitres per unit, they must multiply 100 by 0.75. In this case, the licence holder may extract 75 megalitres over the entire water year.

Varying the available water determination [15.590] If dam levels rise, Water NSW informs the Office of Water, which may announce a

further available water determination. This revises the amount of water per unit that can be extracted. The Department maintains an available water determination summary on its website (http://www.water.nsw.gov.au/water-management/water-availability/available-waterdeterminations/water-allocations-summary).

Crediting a water allocation account [15.600] Water allocation accounts may be credited in one of two ways. The licence holder may:

• •

carry over an unused portion of last year's entitlement, or purchase a water entitlement, either temporarily or permanently.

High and general security water licences [15.630] A licence that gives the holder access to a regulated river may be either high security, general security and supplementary (s 57).

High security licence holders enjoy a greater degree of security in relation to their access entitlements. For example, in the 2015 water year, high security licence holders in the Lachlan and Macquarie-Cudegegong Rivers had access to 100% of their entitlements. In contrast, general security licence holders had access to 0% of their water. After several years of drought, the difference in security between water licences has been crucial.

Supplementary water licences [15.640] Supplementary water is water that is available to all supplementary water licence

holders for a fee when a supplementary water event is announced. This is water that flows into a system and is not required to meet any of the other licensed water entitlements or environmental water requirements. It is often the result of a localised rain event below a dam which results in a significant water flow which would otherwise flow to the end of the water source, usually a wetland or the Murray Darling in inland NSW. Not all water sources have supplementary water licences. Supplementary water licences are not subject to compensation (see below) should they be reduced by new water reforms (s 87).

Water allocation accounts must be kept with a credit balance (s 341).

Licence conditions If the entitlement is exceeded [15.61 OJ Licence holders who unintentionally extract more water than they are entitled to have a 48 hour period within which to purchase additional entitlement from another licence holder. If they do not do so (s 85B):

• •

• •

five times the amount of water extracted unlawfully may be deducted from their account at the start of the next water year, and a civil penalty is imposed of five times the cost of the water, regardless of whether a prosecution has occurred.

Types of access licence [15.620] There is a wide range of water access licences (s 57). Some examples are:

•

[15.650] When accessing water under a water access licence, licence holders should be careful to

adhere to:

licences for regulated and unregulated rivers

the term and conditions of the licence the water-sharing plan. Registration and trading of water access licences are discussed on (15.740).

Mandatory and discretionary conditions [15.660] Water access licences are issued subject to conditions (s 66), which may be:

• •

mandatory and imposed by the water management plan (s 66(1)(a)), or discretionary and imposed by the Minister (s 66(1)(6)).

If there is an inconsistency between a mandatory and a discretionary condition, the mandatory condition prevails (s 66(2)).

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[15.670)

[15.700)

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Duration [15.670) An access licence has effect until it is cancelled in the register (s 69).

Changing licence conditions [15.680] Licence conditions may be changed (s 67).

Mandatory conditions may be changed whenever it is necessary to give effect to a water management plan (s 67(2A)). There is no right of appeal against the imposition of a mandatory condition. Discretionary conditions may not be imposed after the grant of a licence unless the Minister has:

• • •

given notice under section 67(1) given a reasonable opportunity for the licence holder to make submissions, and taken any submission into consideration.

The share or extraction component of a licence can be amended by the Minister if it is in accordance with the management plan (s 68A). This may give rise to compensation under section 87 (see below).

Overollocotion [15.690] Under the old system, licence holders had rights to access 500% of the long term average annual flow in some parts of the Murray-Darling basin. Because the new legislation confers secure property rights in the form of entitlements to a share of available water, these levels of overallocation could not continue. The critical issue was how to adjust from the old system to a sustainable extraction limit shared equitably between licence holders.

Before creating a property right relating to water, Parliament did not impose a State wide system for dealing with over allocation. Instead, each individual water-sharing plan devised a process to eliminate overallocation. ·

Case study: How should existing entitlements be reduced? Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [15.700] In Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11; [2005] NSWCA 10, the appellant challenged the validity of a Minister's water-sharing plan for the lower Murrumbidgee groundwater sources.

This plan proposed a system that progressively reduced the amount of groundwater that could be extracted under supplementary water access licences over

the life of the plan. Licence holders with a higher history of use of their entitlements were issued with supplementary licences. The Minister's plan also facilitated water trade within the water source. The practical effect of this proposal was to reduce the theoretical entitlement of licence holders to approximately 52 % of their original entitlement. The theory was that, if a licence holder required more water, they would buy entitlements from licence holders who had not fully used their entitlement. The appellants submitted that an across-the-board proportionate reduction in entitlement was irrational, and treated the water source as a single body of water. The groundwater source defined in the water sharing plan was in fact a series of groundwater sources which had different degrees of interconnectivity. In practice, transfers of groundwater across the entire plan area was not feasible. Therefore a proportionate cut would adversely affect those who could not purchase any more entitlement in their groundwater area. This would result in a windfall to some and a hardship to those who fully utilised their entitlements. Chief Justice Spigelman reviewed sections 2l(e) and 50 of the Water Management Act 2000, and held {at [144]) that: Inevitably when significant changes are made to an established regulatory regime, there will be winners and losers. Considerations of equity are quintessentially matters for political decision-making. The judge held that the Minister was entitled to implement a scheme "which operates to the detriment of some persons and to the advantage of others". He held that this choice made by the Minister raised issues of equity that were inappropriate for judicial review {at [151]). Lee v Commonwealth of Australia

In Lee v Commonwealth of Australia (2014) 229 FCR 431; [2014] FCAFC 174, Mr Lee and Mr Gropler, operators of irrigated horticultural enterprises in Victoria and South Australia respectively, challenged the validity of the Water Act 2007 (Cth) insofar as it purported to limit the right to use River Murray water and thereby be properly characterised as a law relating to interstate trade or commerce. They also claimed damages for the loss alleged to be suffered from the impairment by acquisition and abridgment of their property rights, namely water entitlements, and other losses, and for injunctive relief to restrain further loss. The appellants failed in their appeal against the primary judge's findings. It is now clear that the reduction in the amount of water available to license holders does not amount to an acquisition of property (at [173] - [177]): Mutual Pools & Staff Pty Ltd (1994) 179 CLR 155; [1994] HCA 9 at [185] per Deane and Gaudron JJ; ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; [2009] HCA 51 at [147] per Hayne, Keifel and Bell.

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[15.710)

Approvals

[15.770)

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water sharing plans are revised to be consistent with the Water Act 2007 (most States, including NSW by July 2019) the regulatory uncertainty will be much reduced for a period of 10 years. See www.nationalwatermarket for more information on current water trades.

Water use approval [15. 71 OJ A water access licence merely enables a volume or share of water to be extracted within a water source. A water use approval allows the holder of the approval to use water for a particular purpose at a particular location in a water management area (s 89).

• •

For example, such an approval may allow a holder to: spray irrigate an area of 40 hectares irrigate in accordance with conditions of the water use approval, and subject to any development consent that may be required under the Environmental Planning and Assessment Act 1979 (see Chapter 5).

Water management work approvals [15.720] A water management work approval allows the holder to use a certain type of water management work at a certain location. For example, it may allow a holder to pump water from the Murrumbidgee River in accordance with specified conditions.

There are three types of water management work approval (s 90):

• water supply work • drainage work • flood work.

The water access licence register [15. 750] The Minister is required to keep a water access licence register (s 71 ). Information that must be kept on the register includes (s 71A):

• • •

any dealing such as sale or assignment dealing in water when an allowance has been exceeded any security interests.

As far as possible, the registration provisions in the Water Management Act 2000 replicate those in the Real Property Act 1900 in relation to:

• •

the sale and purchase of access licences the creation and registration of security interests such as mortgages.

The register is maintained by Land and Property Information and is available at: http:// www.lpi.nsw.gov.au/land_titles/public_registers/water_access_licence_register .

If a transaction, such as the sale of an access licence, must be recorded in the general division of the access register, it has no effect unless and until it is recorded (s 71B). This means that an access licence is a system of title by registration, similar to Torrens land title. However, unlike Torrens title, the register must be searched to ensure that there is an unbroken chain of ownership prior to dealing.

What is included on the register?

Activity approvals [15.730] Activity approvals are required when a certain activity (such as road construction or mining) is likely to affect waterfront land or to interfere with an aquifer (s 91).

Trading water [15. 740] Water access licences may be traded:

• within the water source • to another water source in NSW, or • interstate.

The Productivity Commission has estimated that, as water use becomes more efficient, water trading in the southern Murray-Darling basin will increase the value of water by between $201 million and $555 million per annum, depending on the rainfall in the particular year. Further information is available at http://www.monash.edu.au/policy/regional/appelsld.pdf. Considerable uncertainty associated with the drought and the introduction of the Commonwealth's Water Act 2007 has reduced water trade projections. However once the States

[15. 760] Each water access licence is issued with its own folio number. Information that must be kept on the register includes:

• • • • • •

ownership details secured interest the share and extraction component the water source the expiry date the conditions of the licence.

Water trade within NSW [15.770] For most water dealings, an application must be made to the Minister (s 71L). The Minister can consent to the dealing only if it is in accordance with (s 71 Y):

• • •

the water management principles (s 5) the access licence dealing principles (s 71Z) any relevant access licence dealing rules found in the water-sharing plan.

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• • •

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Ministerial consent is required for most trades including: permanent or term transfers (ss 71M - 71N) assignments (s 71Q) conversions from low to high security (s 710).

There is no guarantee that an access licence can be traded in a particular manner, for instance many water sharing plans preclude the trade of water upstream. Justice Pain noted this in Murrumbidgee Horticultural Council Inc v Minister for Land and Water Conservation (2003) 127 LGERA 450 at [42].

Access licence dealing principles [15.780] The Minister has issued the Access Licence Dealing Principles Order 2004 (http://

www.austlii.edu.au/au/legis/nsw/consol_reg/aldpo2004299/), setting out principles applicable to dealing in water access licences. In summary they require the Minister to consider generally the effect of a transaction on:

• environmental water and water dependent ecosystems identified in water management plans (cl 7) • indigenous cultural, heritage and spiritual matters (cl 8) • water users (cl 9).

Clause 10 refers to the importance of maximising social and economic benefits to the community.

•

There are also more specific considerations that relate to certain types of trades: A licence may be converted from general to high security under section 71 O only if there are arrangements in place to protect environmental water, basic landholder rights and the availability of water to other access licence holders (cll 11 and 19).

• A licence holder may change the water source to which they have access under section 71R

only if there are arrangements in place to protect environmental water, basic landholder rights and availability of water to other access licence holders (cl 15).

• The Minister must not consent to a trade of a water access licence, or an assignment of

water to another water source area, unless the two water source areas are hydrologically connected - that is, water cannot be traded between water sources that are not physically connected. This applies to intrastate and to interstate transfers (cll 17, 18). There are further restrictions on the transfer of water access licences between regulated and unregulated water sources and between groundwater sources (cl 17).

•

Water utilities, such as local town water supplies, cannot make interstate assignments of water unless the Minister has approved both a demand management plan and a drought management plan.

chapter 15 Water supply

(15.810]

Interstate water trading [15. 790] The Minister may enter into an agreement with a Minister from any other State or Territory for the trade of water access licences (s 71U). If an application is made under the agreement, the Minister may either refuse the application or grant consent with conditions in accordance with the water management plan.

Rural councils and the price of property rights in water [15.800] One of the major concerns of the Local Government and Shires Association during the negotiation of the Water Management Act 2000 was that the trade of water out of local government areas would have an adverse impact on the local and regional economies generally.

The Associations also had a specific concern about the rating implications of valuing the irrigable water right as a separate property right from the land title. Land valuations would drop very significantly in some parts of NSW, and this would reduce some shires' base rate. Forty four shires had a base rate derived, in part, from rates associated with irrigated farmland. Accordingly, the NSW Government delayed implementation of that part of the legislation until a framework to manage the risk was introduced by the Local Government & Valuation of Land Amendment (Water Rights) Act 2005, which commenced on 1 July 2005. This legislation repealed section 530 of the Local Government Act 1993, which required shires to rate farmland at the lowest rating value. Irrigated farmland is a category of farmland. This repeal will allow irrigated farmland as a subcategory of farmland to be rated at a higher level than it was previously to offset the loss in the area of irrigated farmland due to trade of water out of the shire. To balance concerns that some councils may increase rates for irrigated land unfairly, the Water Rights Amendment Act 2005 capped the annual rate increase to 20%.

Compe nsation [15.810] Central to the concept of creating property in water access rights is the idea that compensation should be paid if water access rights are decreased or cancelled. Under the Water Management Act 2000, compensation is applicable only to:

• • •

reductions in water shares some adjustments to water-sharing plans (s 68A) compulsory acquisitions in the public interest (s 79). Compensation is not payable for reductions in available water.

Under section 87, compensation is payable if there is a variation to the bulk access regime of a water management plan. Compensation is not payable, however, if:

• the variation has occurred because an earlier plan has expired and a new water management plan is being put in place • a water management plan has been made for the first time • the amendment is in accordance with the management plan under section 45

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• • •

(15.820]

the amendment is to give effect to a decision of the Land and Environment Court.

(15.870]

chapter 15 Water supply

Irrigation areas

The Minister, on the advice of the Valuer General, determines (ss 87(4), (5)): whether compensation is payable how much should be paid.

This decision, or a delay in such a decision, may be appealed to the Land and Environment Court (s 87(7)). The amount of compensation payable is to be determined by the Valuer General, having regard to the market value of the water foregone. A person who is dissatisfied with the amount of compensation offered has a right of appeal to the Land and Environment Court (s 87(7)).

Irrigation corporations [15.850] Part 1 of Chapter 4 of the Water Management Act 2000 relates to irrigation corporations. Schedule 1 lists the irrigation corporations recognised by the Act. Prior to the Water Management Act 2000, irrigation corporations were constituted under the Irrigation Corporations Act 1994, and the areas were originally delineated under the Irrigation Act 1912. Irrigation corporations are required to apply for and operate under a water access licence and a water management work approval (Water Management Act 2000, ss 118, 90).

In ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51 the High Court held that the replacement of groundwater licences under the Water Act 2007 with licences under the Water Management Act 2000 which resulted in a significant reduction in the amount of water that could be taken did not require the payment of compensation under section 51(.xxxi) of the Constitution (see [1.370]).

An irrigation corporation holds a single water licence for the irrigation area. Shareholders of the irrigation corporation are issued shares and pay annual fees to the corporation. Shareholders are issued rights to individual holdings within the irrigation area; they agree to abide by the corporation's management plans and agree that their access to water and their land management practices are regulated by the corporation under land and water management plans (see below).

Community participation

Applications may be made to include land in an irrigation area (Chapter 4, Part 1, Division 4) or exclude land from one (Division 5). Applications to include or exclude land are made jointly by the corporation and the owner or owners of the land.

[15.820] Community participation in the broader management of water resources is limited to

comment on draft water management plans. Except where plans are Minister's plans (s 50(2A)), these must be exhibited under section 38 of the Act.

If there is no water management plan [15.830] If the Minister receives an application for a water access licence in an area where there is no current water management plan, the Minister must give public notification in accordance with the regulations (s 61). Objections can be made and the Minister must notify the applicant of the grounds of objection. The Minister may also facilitate negotiations between the applicant and the objector (s 62).

Challenges to the validity of a plan [15.840] Section 4 7 prohibits any challenges to the validity of a water-sharing plan unless they are made within three months from the date the plan (or an amendment to the plan) was gazetted. Such a prohibition is known as a privative clause (see [2.510]).

However, the courts have imposed some limits on the scope of these clauses, allowing judicial review to take place in certain limited circumstances, despite the privative clause (see generally, [2.360]). It may be that review could take place even after the three month period has expired if there has been a "manifest" defect. Such a defect might exist if the authority did not have the power to make the water management plan in a particular form - for example, a water-sharing plan that did not provide for environmental water. (See Chief Justice Spigelman in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; (2004] NSWCA 422 at [69]-[85].)

The irrigation corporations are:

• Coleambally Irrigation Limited • Jemalong Irrigation Limited • Western Murray Irrigation Limited • Murray Irrigation Limited • Murrumbidgee Irrigation Limited. Each irrigation corporation owns (s 119), manages and operates all irrigation infrastructure in the irrigation districts in its area of operations (s 120).

Operating licences [15.860] In addition to a water access licence and a work approval, an irrigation corporation must also obtain an operating licence from the Water Administration Ministerial Corporation (s 122). The operating licence is issued subject to terms and conditions (ss 123, 124). Irrigation must be in accordance with the operating licence; sanctions include (s 125):

• • • •

a reprimand an order requiring rectification a penalty of up to $150,000 cancellation of the operating licence.

Land and water management plan areas [15.870] A land and water management plan may be prepared only by the irrigation area corporation (such as the Murrumbidgee Irrigation Area or the Colleambally Irrigation Area).

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[15.880]

Exemption from development consent [15.880] In areas where a land and water management plan applies, there is an exemption from the requirement to obtain development consent under the Environmental Planning and Assessment Act 1979 for certain water supply works such as:

• farm dams • irrigation channels • use of land for irrigated farming.

This exemption is created by State Environmental Policy No 52-Farm Dams and Other Works in Land and Water Management Plan Areas (SEPP 52).

Where development consent is required [15.890] Under SEPP 52, development consent is required for artificial storage bodies if (cl 6):

• they have a storage capacity of greater than 15 megalitres, or • they are within 40 metres of: - a public road - a watercourse - a tree clearing operation.

Private irrigation districts [1 ~-9~0] Private irrigation districts followed the early government investment in the larger 1rngat10n areas such as the Murrumbidgee and Murray Irrigation areas. Many private irrigation districts were established in the late 1960's and were subsequently granted statutory authority under the Private Irrigation Districts Act 1973. Some schemes are quite large such as the Broke Fordwitch in the Hunter Valley wine area, and West Corugan Private Irrigation district which serves 300 properties. Others are relatively small such as the Moira Private irrigation district which services 94 irrigation farms.

Chapter 4, Part 2 of the Act relates to private irrigation districts. Private irrigation districts are formed by petition to the Minister (s 142). They may be formed by people who are working three or more holdings, and may be for:

• a private water supply, or • a private water supply and irrigation district.

The private irrigation district is proclaimed by the Governor on the advice of the Minister (s 143). Upon commencement of Schedule 2 to the Water Management Amendment Act 2010, all private irrigation districts are constituted as private water corporations.

Boards of management [15.91 OJ Each private 1rngat10n district must have a board of management, which is a corporation (s 148).

[15.960]

chapter 15 Water supply

A private irrigation board may construct, operate and maintain any water supply works on an authorised site (s 155).

Toking over or constructing works [15.920] Private water corporation irrigation boards may give notice to landholders that they propose to take over or construct water supply works on land within the private irrigation area (ss 159 - 160). Compensation is payable to such landholders (ss 162 - 166).

Water allocations and rotes [15.930] Each year, as soon as possible after 1 July, the private irrigation board must fix the available water allocations (s 176), and the rates and charges that will be levied (s 167). Special rates and charges may also be levied (s 168).

Offences under the Water Management Act 2000 [15.940] The key offence provisions in the Water Management Act 2000 are:

• •

taking water unlawfully using water unlawfully.

Confidence in the capacity of the Government to regulate access and use of a water source is critical, particularly now that licence holders have a property right to protect.

Enforcing the Act [15.950] The Office of Water and State Water both employ officers with regulatory duties under the Water Management Act 2000. In practice, however, most unlawful access or use of water is reported by licence holders interested in maintaining the value of their asset.

Penalties [15.960] The maximum penalties are (s 348):

• •

for a corporation, 2,500 penalty units and a further penalty of 1,200 penalty units for each day the offence continues for an individual, 1,200 penalty units and 600 penalty units for each day the offence continues.

Offences may be prosecuted in either the Local Court or the Land and Environment Court (s 364). If proceedings are in the Local Court, penalties are capped at 100 penalty units for a corporation and 50 penalty units for an individual.

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The table below shows offences under the Water Management Act 2000, the section that deals with the offence and the section that specifies the relevant penalty. offence taking water from water supply work without, or in contravention of a water supply works approval taking water in contravention of licence conditions taking water without meter operating unlawful taking of water unlawful use of water unlawful water management work unlawful activities contravention of directions damage to works taking water from water supply fraudulent dealings with register unlicensed bore drilling exposure of underground pipes unlicensed plumbing work obstruction false and misleading information

section s 91B

penalty s 91B

s 91G

s 91G

s 911 s 341 s 342 s 343 s 344 s 345 s 346 s 347 s 347A s 349 s 350 s 351 s 352 s 353

s 911 ss 348, 85B s 348 s 348 s 348 s 348 s 348 s 348 s 348 s 349 s 350 s 351 s 352 s 353

The Sydney Water Catchment [15.970] After the giardia crisis in Sydney's drinking water supply in 1998, the NSW Government held an inquiry into the adequacy of the administration and policy relating to the protection of Sydney's drinking water supply (Peter McClellan QC, Sydney Water Inquiry: Final report (December 1998)).

One of the key recommendations of the inquiry was the establishment of a single authority to have the regulatory powers and responsibilities to protect Sydney's drinking water supply. The Sydney Water Catchment Management Act 1998 which constituted the Sydney Catchment Authority was the Government's response to the recommendations of the inquiry. In 2010 the Minister released the Final Report by the Hon Barry O'Keefe, Sydney Water Inquiry Ten Year Review. It audited the implementation of the 91 recommendations of the McClellan inquiry and found that while many recommendations had been implemented, there was still a failure to prioritise catchment protection as the first line of defence against organisms such as cryptosporidium which survive our current water treatment process, and to provide for adequate water quality monitoring.

chapter 15 Water supply

[15.990]

The State Water Corporation (State Water) was set up on 1 July 2004 by the State Water Corporation Act 2004. It was a statutory State-owned corporation (s 4). State Water was a government monopoly which operated regulated river structures such as dams and weirs and delivers bulk water in regulated river systems for irrigation and town water supply. Its prices were regulated by the Independent Pricing and Regulatory Tribunal (Independent Pricing and Regulatory Tribunal Act 1992, s 4(7)). State Water's principal objective was to capture, store and release water m an efficient, effective, safe and financially responsible manner (s 5). Water NSW is a continuation of State Water Corporation and is the new corporate name of that legal entity (see section 4 of the Water NSW Act 2014). Water NSW operates in accordance with an operating licence, see section 11 of the Water NSW Act 2014. Water NSW's principal objectives are established in section 6(1) of the Act: (a)

to capture, store and release water in an efficient, effective, safe and financially responsible manner, and

(b)

to supply water in compliance with appropriate standards of quality, and

(c)

to ensure that declared catchment areas and water management works in such areas are managed and protected so as to promote water quality, the protection of public health and public safety, and the protection of the environment, and

(d)

to provide for the planning, design, modelling and construction of water storages and other water management works, and

(e)

to maintain and operate the works of Water NSW efficiently and economically and in accordance with sound commercial principles.

Section 6(2) provides further objectives which are subsidiary to the principal objectives outlined above: (a)

to be a successful business and, to that end: (i)

to operate at least as efficiently as any comparable business, and to maximise the net worth of the State's investment in Water NSW,

(b)

to exhibit a sense of social responsibility by having regard to the interests of the community in which it operates,

(c)

to exhibit a sense of responsibility towards regional development and decentralisation in the way in which it operates,

(d)

where its activities affect the environment, to conduct its operations in compliance with the principles of ecologically sustainable development contained in section 6 (2) of the Protection of the Environment Administration Act 1991.

Water NSW: Activities and functions

WaterNSW [15.980] On 15 January 2015, the Sydney Catchment Authority and the State Water Corporation

were merged into a new entity, Water NSW pursuant to the Water NSW Act 2014.

[15.990] Water NSW delivers 80,000 gigalitres of water to approximately 6,200 customers some very large such as Sydney Water, Murray Irrigation Limited, Murrumbidgee Irrigation Limited - and a range of companies, and individuals. , It also provides 9,000 GL of planned

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environmental water in accordance with water-sharing plans where applicable. It charges a fixed and a variable charge for services including delivery of water (Water NSW Act 2014, s 39; Water A ct 1912, s 22C). Water NSW also collects charges on behalf of the Department from 17,300 customers who extract water from unregulated rivers or groundwater systems. Water NSW has been delegated some of the powers of the Minister under the Water Management Act 2000, including the right to:

• •

impose penalties (s 85B)

(15.1050)

chapter 15 Water supply

Water efficiency in cities [15.1030] Water efficiency is starting to be rewarded in urban environments, but again the

economics of investment in water efficiency do not yet offer sufficient incentives for public investment in water efficiency and self sustainability. Until large water utilities such as Sydney Water can develop products and services such as installation and maintenance of self sustaining home water systems, there is an economic disincentive for Sydney Water to encourage Sydney residents to use less water because a fall in water consumption will erode Sydney Water's income base.

suspend access licences or water management work approvals.

Catchment management

BASIX

[15.1000] The Governor is able by order in the Government gazette to declare catchment areas

[15.1040] As of 1 July 2007, most new residential developments in NSW are required to undergo a certification process, known as BASIX, before a development application can be lodged (see [10.420]). BASIX applies to all residential developments of more than $50,000 in value. It has now been integrated into the Building Code of Australia 2010.

(s 40 of the Water NSW Act 2014), special areas (s 47), and controlled areas (s 54) as part of the catchment protection and management function of Water NSW. The Governor is unable to reduce the size of the Sydney Catchment Area without tabling an Act of Parliament (s 40(3)). As Sydney forgets the lessons of the cryptosporidium crisis in 1998, the recommendations of the McClellan inquiry have been further diluted as the new legislative framework requires that a public authority or such other person appointed by the Minister develops the catchment health indicators and undertakes audits once every 3 years, making the Catchment Audit both less regular and independent.

BASIX is a web tool that assesses whether proposed developments meet certain ecological and efficiency targets. Applicants complete the process themselves. BASIX generates a certificate if a development achieves:

•

a 40% reduction in potable water consumption, and

• a 40% reduction in greenhouse gas emissions.

These reductions are assessed against the average residence in NSW.

How the water authorities operate [15.101 OJ Water NSW and Sydney Water are statutory State-owned corporations. They have an

operating licence, and are regulated by the Independent Pricing and Regulatory Tribunal. This tribunal establishes the appropriate pricing path for all water in NSW.

Water efficiency [15.1020] At a State level there is currently no policy or commercial incentive to encourage

water efficiency savings by licence holders. There is no mechanism by which water efficiency savings are measured, and no mechanism for allocating such savings to a user's account, to a new water access licence or to the environment. Water users indirectly benefit from efficiency savings because there is more water available: they gain a marginal increase in accordance with their water use approval and access licence. This is not an effective incentive because it does not reflect the true cost of water efficiency savings, and does not achieve good social, environmental and economic outcomes. For this reason, investment has not been encouraged in large-scale, more cost effective methods of water efficiency. For discussions of the type of water efficiency savmgs that are achievable, see http:// www.wjpratt.com.au.

BASIX assesses whether the proposed development achieves the reduction targets m the following areas:

• • • • •

energy water thermal comfort stormwater landscape.

It is a combination of the above assessments which informs whether the energy and water efficiencies achieved by the proposed development are sufficient to receive a Basix certificate. For more information, please go to: https://www.basix.nsw.gov.au.

Rainwater tanks [15.1050] For many years the installation of rainwater tanks was actively discouraged by regulatory authorities in NSW on numerous public health grounds, even though technological advancements in rainwater tank construction had dealt with these issues.

Regulatory authorities such as Sydney Water and the NSW Department of Health still discourage the installation of rainwater tanks for drinking water purposes on residential blocks. Both those authorities publish warnings on their websites against using rainwater tanks for drinking water.

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It is now claimed that such public health concerns have been met by the introduction of first flush systems, backflow prevention valves and design measures in properly installed rainwater tanks (see, for example, http://www.sustainablehouse.com.au). In 2002, the NSW Government gazetted an amendment to State Environmental Planning Policy No 4-Development without Consent (see [3.410]) to allow rainwater tanks up to 10,000 litres to be installed without development consent. Under the Standard Instrument LEP Template (see [12.1000]), the exemption is provided through individual local environmental plans (Standard Instrument Principal Local Environmental Plan Regulation 2006, cl 3.1 and Schedule 2) and State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. However, local water supply authority approval is required prior to plumbing a rainwater tank into a household water supply pipe (for use in toilets and washing machines).

16 Catchment management Dr Peter W illiams Faculty of the Built Environment University of New South Wales

Introduction .................................................................................................................................................................. [16. l OJ Integrated catchment management .............................................................................................................. [16.30] Catchment Management Authorities ......................................................................................................... [16.100] The Natural Resources Commission .......................................................................................................... [16.1 ? OJ Local Land Services .............................................................................................................................................. [16.210]

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Introduction [16.1 0] Examined in this chapter are the following issues:

• the significant role of integrated catchment management • the approach over time by government in NSW to catchment based planning and management • the current legislative and administrative regime for natural resource management at a catchment level in this State. Significant reform in this area occurred in the period 2013-2015, with legislative and organisational change occurring on several fronts as the State government sought to address the needs of multiple stakeholders. Governments, resource managers and planners need to respond to the challenges of resource exploitation and conservation by seeking more strategic (that is, proactive rather than reactive) approaches that will enable their projects and programs to deliver as many benefits as possible, with minimum adverse impact in terms of conflict and cost. Strategic approaches incorporate notions of forward planning, policy and land management integration, and identification of appropriate land management scales or units. Relevantly, specific approaches to be considered here include bioregionalism and integrated resource management - synthesised as "bioregional planning". A biogeographic region or bioregion is an area composed of a cluster of interacting ecosystems that are repeated in similar form across a landscape. Bioregion types seek to describe the dominant landscape scale attributes of climate, hydrology, geology, landforms and vegetation. Integrated resource management involves the incorporation of natural resources and environmental considerations into land use planning and management systems and decision-making. Bioregional planning involves the adoption of a regional approach to land use management and planning, with bioregional units such as ecosystems or catchments forming the basic unit of land management. Bioregional planning firstly assumes that both integrated resource management and investment decisions will be applied to the bioregional unit in question. A further idea relating to bioregional planning is linking land use planning to biophysical boundaries and hence processes. It is this second area of application of bioregional planning to land use planning that has been comparatively weak in New South Wales. Similarly, the law relating to land use and planning, natural resource management and catchment management has, historically, not been well coordinated, with land use planning under the Environmental Planning and Assessment Act 1979 (see Chapter 3) focused on historic local government boundaries rather than on interconnected landscape units. Reforms introduced in 2003 sought to establish a bioregional model for the development and delivery of integrated natural resource management through catchment management authorities (see [16.100]). These reforms recognised that it is often more appropriate to consider managing land use at a catchment or sub-catchment level. Further reform in 2013 transferred the responsibilities of catchment management authorities to a new organisation, the Local Land Services.

[16.40]

chapter 16 Catchment management

What is a catchment? [16.20] Physically, a catchment is a river basin: it is the area that supplies surface water to a common watercourse. Each catchment is separated by hills or ridges that direct the flow of water into a river or stream.

However, catchment areas in the legal sense are not necessarily the same as physical catchments. Legally, a catchment area may be all or part of a physical catchment, or contain parts of different catchments. In the past, their boundaries have followed local government area boundaries. However, in more recent times, catchment areas have centred on the larger NSW river systems, such as the Gwydir, Namoi, Murrumbidgee and Lachlan rivers.

Integrated catchment management [16.30] A fundamental question that arises is: what is the most appropriate bioregional unit (eg based on biodiversity, catchments, ecosystems or some other geophysical criteria) to adopt? A common bioregional unit is the river catchment or basin, and the management of this type is known as integrated catchment management (ICM). Integrated catchment management also goes by a number of terms such as total catchment management and integrated basin management. Irrespective of the terminology employed, it is a form of integrated natural resource management.

In ICM, consideration is given to the consequences of land use (or changes in land use) and there is an effort to prevent adverse environmental effects. Unfortunately, development issues have largely been considered in isolation: the attention has been on environmental impacts on a particular site instead of the effect of that development on the wider environment. This has contributed, in part, to much of the environmental degradation in NSW. ICM is important because the effects of poor land management may extend well beyond the land on which the activity occurs. The results of poor management can include: dryland salinity, soil erosion and degradation, and reduced water quality. In order to rectify some environmental problems, it is often necessary to address the land management issues for the whole catchment. ICM has the objective of integrating and improving the management of land, water and related biological resources in order to conserve and achieve the balanced use of these resources. ICM seeks the involvement of agencies, stakeholders and the general public as part of policy making, planning, and management to promote the sustainable use of natural resources, protect and improve the quality and quantity of water and the land from which the water originates. (See Australian Water Association, Catchment Management at http://www.awa.asn.au/Catchment_ Management.aspx) .

Catchment management before 2 00 3 [16.40] ICM - often under the mantle of total catchment management - has been referred to in

NSW government policy and legislation since the 1980s. Catchments remain fundamental natural resource management units in this State. In the past, however, there have been a variety of ways (not necessarily integrated) in which the law controlled activities that affected the whole_of a catchment. These laws included: the Environmental Planning and Assessment Act 1979; Native Vegetation Conservation Act 1997; Soil Conservation Act 193 8; Water Act 1912; and Catchment

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chapter 16 Catchment management

Early catchment management

under the CM Act (reg 3(1)). The Regulation stipulated that the total catchment purpose of a Board was to promote a healthy and productive catchment system. This was to be achieved by firstly, encouraging the protection and where appropriate, the restoration of a catchment, and second, by promoting and facilitating ecologically sustainable use, development and management of natural resources (reg 5 ).

[16.50] References in NSW to the concept of catchment management go back to the introductory debates to the Soil Conservation Bill in 1938. A key aspect of the introductory debates and discussion on the NSW Soil Conservation Bill was the perception that soil, water and forests needed to be managed on a catchment basis. As a consequence, the Soil Conservation Act 1938 contained a number of specific "catchment" provisions, including experimental and research work (s 6), areas of erosion hazard (s 17), protected land (s 21) and catchment committees (s 23). The NSW Government's first official policy position on catchment management was outlined in the 1987 document published by the Soil Conservation Service Total Catchment Management: A State Policy, which also contained the State's Tree Policy and Soils Policy.

By 2003, just prior to the Minister for Infrastructure, Planning and Natural Resources announcing major reforms to the protection for natural resources, catchment management in NSW was spread between: 18 CMBs, the Hunter Catchment Management Trust, two CM Cs (the Coxs River and Wollondilly Catchment Management Committees) and the Hawkesbury-Nepean Local Government Advisory Group (which had replaced the Hawkesbury-Nepean Management Trust in 2001). Twenty-one integrated catchment management plans - termed catchment blueprints - covering the whole state were prepared by these organisations and endorsed by the NSW Government in late 2002. Catchment blueprints did not have the same status as environmental planning instruments under the Environmental Planning and Assessment Act 1979. They did not have the force of law.

Management Act 1989. Further, the catchment management organisations m NSW have undergone significant transformation, as outlined below.

Total catchment management was subsequently given statutory expression under the Catchment Management Act 1989 (CM Act). This Act defined total catchment management as: "the coordinated and sustainable use and management of land, water, vegetation and other natural resources on a water catchment basis so as to balance resource utilisation and conservation" (s 4). The CM Act, which was repealed by the 2003 reforms (see [16.100]), required active management of catchment areas through the voluntary cooperation of members of the community.

Other authorities [16.70] In addition to the catchment management boards and a handful of remaining catchment management committees and trusts, a number of other bodies, some of them operating under a range of legislation and others non-statutory, had responsibility for aspects of natural resource management at a catchment level. These included the Healthy Rivers Commission, the Coastal Council, regional vegetation management committees, water management committees, State weir review committees and the State wetland advisory committee.

The CM Act set up an administrative hierarchy for catchment management in NSW, at the head of which was the State Catchment Management Coordinating Committee (SCMCC), comprising of representatives from all government bodies with an interest in land or water management, as well as representatives from local government and rural and environmental interests. The SCMCC reported to the Natural Resources Subcommittee of Cabinet. At the base of the hierarchy were the various catchment management committees (CMCs) and catchment management trusts (CMTs). At their numerical peak there were 45 CMCs and three CMTs in NSW. The fundamental difference between a CMC and a CMT was the ability of the latter to levy catchment contributions on land within its area. Following a review of total catchment management (TCM) in NSW in 1997, an intermediate level in this hierarchy, in the form of five Regional Catchment Coordinating Committees (RCCCs) was established. These were set up as sub-committees of the SCMCC to ensure a strategic regional focus on natural resource planning on the eastern side of the Great Dividing Range, where individual CMCs were too small to benefit from economies of scale or to ensure a strategic focus on catchment management planning. The RCCCs formalised the previous informal groupings of CMCs, to discuss cross-catchment issues and develop joint solutions.

During the late 1990s the number of committees and boards ballooned, along with the requirements for permits, approvals and consultation. Before any action that affected a catchment area took place, it was imperative that this was comprehensively assessed for their environmental impact. It was also vital that the public was advised of natural resource management plans and proposals and had the opportunity to comment on them. However, during this period there was a profusion of legislation that delegated to lay committees the task of reviewing and preparing plans and coordinating community responses. Often, particularly in remote areas, the same individuals held positions of responsibility on various committees, stretching their personal resources and leading to committee fatigue.

Catchment management boards

2003 reforms

[16.60] Further reform was to occur as a consequence of the 1997 review of TCM. In 1999 this framework was changed by dismantling most of the CMCs and creating 18 Catchment Management Boards (CMBs) through the Catchment Management Regulation 1999. Legally, the CMBs were created as Catchment Management Trusts, and so possessed all the powers of a Trust

Many of the committees operated in an advisory capacity only, but others (such as the vegetation management committees) could make legally enforceable plans. Many of these boards and committees relied on voluntary cooperation and on coordination of policies and activities by public authorities, groups and individuals. This approach was specifically advocated by the CM Act (ss 5 (1 )(a), (b) ).

Blueprint for a Living Continent [16.80] In November 2002, while much of Australia was gripped by drought, the Wentworth

group of concerned scientists published their Blueprint for a Living Continent (see http://

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www.wentworthgroup.org/blueprints/blueprint-for-a -living-continent). The Wentworth group recognised that much of Australia's agriculture is economically marginal and involves serious degradation to rivers, wildlife, wetlands, estuaries and coastal waters. The Blueprint proposed ways to restore degraded rivers and to rebuild the landscape in a way that creates a viable agricultural system that would be able to support rural communities. One impediment to this, the scientists said, was the amount of bureaucratic red tape that prevented efficient investment in landscape management. The Wentworth group advocated a streamlined model for regional catchment management, driven by a national Natural Resources Management Commission and underpinned by regional institutions that would develop and implement catchment plans. This approach appealed to the then NSW Premier Bob Carr, who took steps to implement some of the Blueprint' s recommendations.

NSW Government reforms [16.90] Recognising the relationship between vegetation clearing, water management, salinity and overall catchment health, in April 2003, the Native Vegetation Reform Implementation Group was appointed by the Premier to identify ways to improve the management of native vegetation. The group delivered its final report (the "Sinclair Report") in October 2003, and provided the impetus for reform of natural resource management in NSW. The report recognised that fundamental to the success of a new model for landscape management was simplifying the overwhelmingly complex structures that then existed, and advocated significant reforms to the institutional arrangements relating to native vegetation and natural resource management in NSW. It recommended the establishment of:

• • •

chapter 16 Catchment management

In 2009, the Department of Environment and Climate Change became the Department of Environment, Climate Change and Water. This meant that one department had overall responsibility for all aspects of natural resource management. In 2011, the incoming Coalition Government gave responsibility for catchment management to the Department of Primary Industries. The Department of Planning and Environment remains the authority primarily responsible for decisions related to development and land use planning, in particular preparing environmental planning instruments under the Environmental Planning and Assessment Act 1979 (see Chapter 3).

Of the three bodies set up as part of the Government's 2003 natural resource management reforms, only the Natural Resources Commission remains. The Natural Resources Advisory Council (NRAC) was established in 2004, with constituent representatives from primary industry, peak environmental organisations, the scientific community, local government, and indigenous interests. Instituted by the NSW Government as an independent body, the advisory council had 27 members representing key stakeholders (including stakeholders from forestry, fishing, farming, mining, rural women, environmental and indigenous groups) and their interests in the management of natural resources in NSW. The NRAC was disbanded by the State Government in September 2011. CMAs continued to operate in NSW until the end of 2013. However, following the enactment of the Local Land Services Act 2013, CMAs were abolished and their role subsumed into new a new organisation, Local Land Services, from January 2014. In replacing the CMAs, eleven Local Land Services Regions were established in the NSW Primary Industries portfolio.

a Natural Resources Commission (see [16.170]) a Natural Resources Advisory Council, and Catchment Management Authorities (CMAs) (see [16.100]).

These bodies would oversee and coordinate natural resource management throughout NSW, and were duly set up in 2004. Several recommendations concerned the establishment and role of CMAs. Implementation of these recommendations resulted in 72 existing natural resource management bodies - water management committees, regional vegetation management committees, CM Cs, CMTs and CMBs - to be replaced by 13 CMAs. As part of the NSW Government's 2003 natural resource management reforms, new natural resource legislation was introduced and in operation by early 2004:

• • •

[16.100)

Natural Resources Commission Act 2003 (see [16.170]) Catchment Management Authorities Act 2003 (see [16.100]) Native Vegetation Act 2003 (see [12.1370]).

These Acts joined other recently enacted natural resource management legislation in the form of the Water Management Act 2000 (see Chapter 15). These Acts constituted a significant change to the way in which native vegetation, water and other natural resources were managed. The Government departments with the responsibility for catchment management, planning, vegetation management and water management have gone through a number of iterations since the 2003 reforms. In April 2007, the responsibilities were divided between two new government departments: the Department of Water and Energy and the Department of Environment and Climate Change.

Catchment Management Authorities [16.100] The Catchment Management Authorities Act 2003 (CMAAct) created 13 CMAs which

replaced the catchment management boards, trusts and two remaining committees (see above) (s 6). These authorities were formally constituted in January 2004 and covered the following catchments (Schedule 1):

• Border Rivers-Gwydir • Central West • Hawkesbury-Nepean • Hunter-Central Rivers • Lachlan • Lower Murray-Darling • Murray • Murrumbidgee • Namoi • Northern Rivers • Southern Rivers • Sydney Metropolitan • Western.

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The CMAs were statutory bodies representing the Crown and therefore subject to the direction of the relevant State M inister. Each CMA had a responsible and accountable Board which reported directly to the Minister.

Catchment activities were broadly defined in the CMA Act as "activities relating to natural resource management" and extended to include (s 4 ): planting trees; removing of weeds and obstructions; carrying out of works; and education or training.

Structu re of the authorities

Natural resource management was also defined (s 4) as including the management of issues relating to: water; native vegetation; salinity; soil; biodiversity; coastal protection; marine protection; and forestry.

[16.110] Each CMA was controlled by a board of between five and seven members (including a chairperson) who collectively had skill and knowledge of (s 8): primary production; environmental, social and economic analysis; state and local government administration; negotiation and consultation; business administration; community leadership; biodiversity conservation; cultural heritage; and water quality.

Schedule 3 of the CMA Act set out how board members were appointed, with the criteria for appointment to be based on skill, expertise and experience in matters relevant to catchment management. These criteria were in contrast to those that applied to catchment management boards under the old Catchment Management Act 1989: under that Act, representatives were nominated by various groups, such as farmer organisations, local government, indigenous groups and conservation groups.

The role of catchment management authorities [16.120] The objects of the CMAAct included (s 3):

• providing for proper natural resource planning at a catchment level • ensuring that decisions about natural resources take into account appropriate catchment issues • requiring that decision at the catchment level take into account State-wide standards and involve the Natural Resources Commission in catchment planning where appropriate • involving communities in each catchment in decision-making • ensuring the proper management of natural resources in the social, economic and environmental interests of the State • applying sound scientific knowledge to achieve "a fully functioning and productive landscape" • providing a framework for financial assistance and incentives towards natural resource management by landholders. It is interesting to note that, unlike most other environmental legislation in NSW, neither the objects of the CMAAct nor the Natural Resources Commission Act 2003 included a reference to encouraging ecologically sustainable development (see [1.190]).

Functions of catchment management authorities [16.130] A CMA's function was to carry out or fund catchment activities in accordance with the CMA Act (s 14). The Act was not concerned with the control of development, which was regulated under the provisions of the Environmental Planning and Assessment Act 1979 (EPA Act) (see Chapter 8) .

While this list did not expressly refer to the management of land, many of the matters covered directly related to land management. In this respect, the natural resource management system provided a framework for the management of existing land uses. In contrast, the development of land was, and remains, governed by a separate land use planning system (see Chapter 5).

Catchment action plans [16.140] A major function of the CMAs was the preparation of natural resource-based catchment action plans (s 15). The CMA Act provided that, as soon as practicable, each CMA was to prepare a draft catchment action plan (s 19) for approval by the Minister. Despite the replacements of CMAs by Local Land Services, catchment action plans remain in operation until replaced by local strategic plans under the Local Land Services Act 2013 (see [16.290]). A catchment action plan must include (s 20(1)):

• • •

the results expected from the plan and when they are expected the priorities for funding or carrying out catchment activities anything else the Minister directs to be included in the plan.

In addition, the plan may include provisions relating to water quality and non-regulatory water management issues; and must include provisions required to give effect to any environmental water functions which have been given to the authority under section 389A of the Water Management Act 2000 (s 20(1A): see below).

What action plans must consider [16.150] A catchment action plan must have regard to:

• • • •

any environmental planning instrument (see Chapter 3) that applies to the land any other natural resource management plans for the area the need to comply with any State-wide natural resource management standards the need to promote any State-wide targets adopted by the Minister (CMAAct, s 20(2)) .

By comparison, draft environmental planning instruments do not have to consider catchment action plans. In fact, environmental planning instruments are able to effectively override catchment action plans by permitting development activities that may be inconsistent with natural resource management actions being promoted by the catchment action plan. The CMA Act and the catchment action plans focus on providing funding and incentives to alleviate the results of existing and proposed land use, rather than developing guidelines to prevent inappropriate development in the future . Again, this highlights the separation between land use planning decisions and natural resource management decisions.

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Making catchment action plans [16.160] The CMAAct contained provisions for public consultation in relation to the catchment action plan (s 21). Details of the procedure to be followed for public consultation were to be provided in regulations, but these were not made. In the absence of regulations, each CMA adopted its own process for consulting with stakeholders in the development of the plans. The 2008/2009 Natural Resources Commission's audit of CMAs and their implementation of catchment action plans found that most CMAs had developed strong community relationships, particularly with private landholders.

Once a draft plan was prepared, the CMA referred it to the Minister and the Natural Resources Commission (s 22). The Commission provided advice to the Minister in his or her assessment of the draft plan. The Minister then decided whether to approve the plan (with or without alteration) or to refer it back to the authority for further consideration (s 23 ). After a plan had been published, the CMA had to review it regularly and also when the Minister so directed. Plans were required to be audited by the Natural Resources Commission (or an independent audit panel appointed by the Minister) at intervals of no more than 5 years (s 26).

The Natural Resources Commission [16.170] Amongst the recommendations of the Final Report of the Native Vegetation Reform

Implementation Group (the "Sinclair Report") adopted by the State Government was the establishment of an independent Natural Resources Commission (NRC). The NCR, created in 2004 under the Natural Resources Commission Act 2003, is an independent body with broad investigative and reporting functions designed to assist Government find evidence based solutions to complex natural resource problems. Its purposes include (s 3 ):

• establishing a sound scientific basis for managing natural resources in NSW • making it possible to adopt State-wide standards and targets for natural

resource

management issues. The NRC comprises a full time Commissioner (s 7) and Assistant Commissioners (s 8) and has been established to provide the Government with independent advice on natural resource management (s 12). The Commission is not subject to Ministerial control in respect of the preparation and contents of any advice or recommendation, but in other respects, is subject to the control and direction of the Minister (s 11).

Role of the Commission [16.180] The primary tasks of the Commission are to (s 13 ):

• recommend State-wide standards and targets for natural resource management issues • audit the effectiveness of catchment action plans (now local strategic plans) and other natural resource management issues • coordinate or undertake natural resource and conservation research, assessments and inquiries as required by the Minister • undertake inquiries on natural resource management issues as required by the Minister

[16.190]

chapter 16 Catchment management

• assist in the reconciliation of particular complex natural resource management issues referred to it by the Minister • advise the Minister on priorities for research concerning natural resource management issues • gather and disseminate information on natural resource management issues. The NRC is required to report to the Minister on all audits and on progress in achieving State-wide standards and targets, including the effectiveness of the implementation of local strategic plans under the Local Land Services Act 2013 (s 15). The Commission can enter into arrangements with government agencies and others to provide it with relevant information (s 16(1)). In addition, the NRC may enter into arrangements with the Scientific Committee under the Threatened Species Conservation Act 1995 (and other associated committees) for advice regarding:

• • •

matters of a scientific nature relating to threatened species, populations and communities matters of biological diversity matters relating to the social and economic impact of natural resource management (s 16A).

Policy and advice [16.190] In accordance with responsibilities assigned under s 13 of the Natural Resources

Commission Act 2003, the NRC prepared the Standard for Quality Natural Resource Management (the Standard) for the NSW Government in September 2005. The Standard was designed to apply to natural resource management at all scales including at the state, regional or catchment, local and property levels. Specifically, the development and implementation of catchment action plans by CMAs had to comply with this Standard under ss 13(c) and 13(d) of the Natural Resources Commission Act 2003 and s 20(2)(c) of the Catchment Management Authorities Act 2003. The Commission has subsequently developed a draft standard for landscape management that sets performance expectations for Local Land Services which builds on the existing Standard. The Commission's former responsibility of recommending approval of catchment action plans was revoked in 1 January 2014 upon repeal of the CMAAct and commencement of the Local Land Services Act 2013. The NRC provided advice on the assimilation of CMAs to Local Land Services and developed a Better Practice Guide in 2013 on the transitional process for adapting catchment action plans so that they aligned to Local Land Services boundaries. Based on examples of better practice demonstrated in nine catchment action plans assessed by the NRC in 2013, the Guide sought to ensure that the strategic intent of the transitional catchment action plans was maintained and all legislative requirements were met. These transitional plans guide natural resource management investment in the regions until the adoption of Local Land Services' state and local strategic plans.

Catchment Action NSW is the NSW Government's regionally-delivered project funding to address state natural resource management priorities. Since 2008, the NSW Government has used the NRC's decision making process to allocate Catchment Action NSW funding. Under the current funding agreement for Catchment Action NSW, the Office of Environment and Heritage has conferred responsibility to Local Land Services for distributing the funds between the 11

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Local Land Services regions. The NRC now provides advice to Local Land Services on the allocation of Catchment Action NSW funds between Local Land Services regions.

Auditing natural resource management [16.200] As part of its statutory responsibilities, in 2008 and 2009 the NRC completed the first

round of catchment action plan audits. Nine CMAs demonstrated a very high or high level of effectiveness in implementing their catchment improvement plans, and four demonstrated a fair level of effectiveness. The NRC conducted second audits in 2010-2012 of the latter four CMAs to understand how catchment action plan implementation had progressed. Legally, until such time as the State's 13 catchment action plans cease to operate, the NRC retains the statutory role to audit whether these are being implemented effectively to comply with the Standard (s 13(1)(c)). With the establishment of Local Land Services on 1 January 2014, the NRC works closely with this organisation to assist it in auditing, evaluating and reviewing plans, programs and operational performance. The NRC has responsibility for conducting independent performance audits of LLS consistent with the requirements of the Local Land Services Act 2013 (ss 24, 44 and 54).

[16.240)

chapter 16 Catchment management

• animal welfare • chemical residue prevention, management and control • natural resource management and planning • travelling stock reserves and stock watering places • control and movement of stock • related services and programs. Organisational structure [16.220] The Local Land Services comprise of eleven LLS regions each managed by a local board with its own chair. The chairs in turn constitute a state-wide Board of Chairs. Each region has a General Manager who is responsible for operational performance and staff providing service to landholders and communities from offices in cities and towns throughout NSW.

LLS regions [16.230] There are eleven LLS regions, managed by 11 local boards that cover NSW. These

Local Land Services [16.210] Local Land Services (LLS) commenced operation on 1 January 2014, bringing together the functions and activity of CMAs, Livestock Health and Pest Authorities (LHPA) and some agricultural extension and advisory services of the Department of Primary Industries. The Local Land Services Act 2013 (LLS Act) established LLS and repealed the following NSW Acts: Rural Lands Protection Act 1998, the Rural Lands Protection Amendment Act 2008 and the Catchment Management Authorities Act 2003. The LSS Act is supported by the Local Land Services Regulation 2014 which, like the Act, commenced on 1 January 2014.

Establishment of LLS was largely an outcome of NSW Government concerns over biosecurity (expressed, for example in the State Plan NSW 2021), which in turn led to commissioning the Review of the NSW Livestock Health and Pest Authority (LHPA) Model. The report of this review (the "Ryan Report") was released in February 2012 and, amongst its findings they recommended that a new regional service delivery organisation be created to provide a broader array of the services previously provided to landholders separately by the state wide LHPAs, CMAs and Department of Primary Industries. The LLS represents a significant reform of the State's agricultural services. In bringing together the functions of these organisations, the LSS has a wide remit, covering programs and advisory services to landholders and the community on agricultural production, biosecurity, natural resource management and emergency management. "Local land services" include the following (LLS Act, s 4):

• agricultural production • biosecurity, including animal pest and disease and plant pest and disease prevention, management, control and eradication • preparedness, response and recovery for animal pest and disease and plant pest and disease

emergencies and other emergencies impacting on primary production or animal health and safety

reg10ns are:

• Central Tablelands • Central West • Greater Sydney • Hunter • Murray • North Coast • Northern Tablelands • North West • Riverina • South East • Western Each region is responsible for delivering services that add value to local industries, enhance natural resources, protect industries from pests and disease, and help communities respond to natural emergencies like flood, fire and drought.

Local Land Seroices {LLS) boards [16.240] Each local board is comprised of seven members - with four Government appointments

(one as chair) and three ratepayer elected positions. (However, the Western Local Land Services has a 5:4 ratio due to its size.) Local boards have the primary responsibility for the strategic direction of the organisation including: service delivery, project administration and engagement with their local communities. Each board is required to establish one or more local community advisory groups for its region (LLS Act, s 33(1)) to provide input to board decisions. A local

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· d ·sory group is to consist of persons to serve on the group and be suitably commumty a vi • · A . e of the interests of the local community (LLS ct, representa t1v . and stakeholders . . m. the reg10n . s 33(2)). Each local board is required to consult with local commumues, mcludmg landholders and Aboriginal groups (LLS Act, s 29(1)), to develop ope~ational _m~~agement plans that prioritise service delivery on a regional basis, reflecting reg10nal pn~nt1es. Boards are also required to prepare local strategic plans (LLS Act, s 29(1)(a)). Until these are developed, catchment action plans continue to apply.

Local Land Services (LSS) Boord of Choirs [16.250] The LLS Board of Chairs, comprised of an independent Chair and the Chairs of eac~ of

the 11 Boards, is responsible for the delivery of state-wide programs and has an overs~ght, policy, procedural, and agency interaction guidance role. All decisions relating ~o- ~he funct10ns of LLS are made by or under the authority of the Board (s 10(1)). A key respons1b1lity of the LLS B_oar_d of Chairs is the preparation of a State strategic plan. The Chair of the Board of Chairs 1s responsible for the day-to-day management of the affairs of LLS, subject to the policies and directions of the Board (s 10(2)).

State strategic plan [16.260] The State strategic plan produced by the LLS Board o~ Ch~irs sets the vis_ion, priorities and overarching strategy to guide the delivery of local land services m the State, with a focus on appropriate economic, social and environmental outcomes (s 36(1)). Once approved by the Minister the State strategic plan has effect for the period of 10 years (s 36(2)).

[16.300]

•

chapter 16 Catchment management

any other matters that the Minister may direct to be included in the plan.

Pion-making process [16.280] The LLS must consult widely on a draft State strategic plan, giving such public notice of the preparation of the plan and providing such public exhibition of the plan as required by the regulations or the Minister (s 39). After submission of a draft State strategic plan to the Minister for approval (s 40), the Minister may approve the plan with or without alteration, or refer the plan back to LLS for further consideration (s 41(1)). Before making any alterations to a draft State strategic plan, the Minister must consult LLS (s 41(3)). The Minister must not approve a draft State strategic plan unless the Minister (s 41(2)):

• is satisfied (having received appropriate advice) that the plan promotes the achievement of any State priorities for local land services • has sought the advice of any person or body engaged to conduct an independent audit of the activities of LSS under s 24 of the Act • has obtained the concurrence of the Minister administering the Native Vegetation Act 2003 , in relation to those parts of the draft plan that relate to natural resource management.

A State strategic plan may be amended or replaced by a subsequent plan prepared and approved in accordance with the provisions of the LLS Act (s 43(1)). The Minister may revoke a State strategic plan either wholly or in part (s 43(2)). LLS must ensure that the State strategic plan is regularly reviewed, and the Minister must ensure that the plan is independently audited at least every five years (s 44).

Local strategic plans Preparation and content [16.270] The LLS must prepare a draft State strategic plan for local land services in NSW that

complies with the provisions of the LLS Act (s 37(1)). In preparing a draft State strategic plan the LLS must consider (s 37(3)):

• any State priorities for local land services • the provisions of any environmental planning instrument under the EPA Act that applies to a reg10n • any other existing natural resource management plans for a region including the State Water Management Outcomes Plan and any management plan under the Water Management Act 2000 sound evidence-based practices to support primary industries, resilient communities and

• healthy landscapes • the need for engagement of the community, including the Aboriginal community. • •

A draft State strategic plan must include (s 38): the outcomes that are expected to be achieved by the implementation of the plan and the timeframes for achieving those outcomes requirements for reporting on whether those outcomes and timeframes have been achieved

[16.290] Guided by the State strategic plan, a local strategic plan is required to be developed for each LLS region after community consultation and public exhibition. A local strategic plan sets the vision, priorities and strategy in respect of the delivery of local services in the region, with a focus on appropriate economic, social and environmental outcomes (s 45). A local strategic plan is effective for five years after it is approved by the Minister. Until a local strategic plan is developed, the existing relevant catchment action plan continues to operate.

Preparation and content [16.300] A local board must prepare one or more draft local strategic plans in respect of the delivery of local land services in its region and submit each plan for approval by the Minister (s 46). A draft local strategic plan must include (s 47(1)):

• • •

the outcomes that are expected to be achieved by the implementation of the plan in relation to the region and the timeframes for achieving those outcomes requirements for reporting on whether those outcomes and timeframes have been achiev_ed any other matters that the Minister may direct to be included in the plan.

A draft local strategic plan for a region may also include provisions that relate to water quality or other non-regulatory water management issues in the region (s 47(2)).

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In formulating a draft local strategic plan for its region, the local board is to have regard to the

following (s 47(3)):

• • • • • •

any State priorities for local land services the State strategic plan the provisions of any environmental planning instrument under the EPA Act that applies to the region any other existing natural resource management plans (including any such plans in the course of preparation) for the region including the State Water Management Outcomes Plan and any management plan under the Water Management Act 2000 sound evidence-based practices to support primary industries, resilient communities and healthy landscapes the need for engagement of the community, including the Aboriginal community.

Plan-making process [16.310] A local board must consult widely on a draft local strategic plan, by giving public notice of the preparation of the plan and undertaking its public exhibition as required by the regulations or the Minister (s 48). A local land board has to refer each draft local strategic plan prepared by it for a region to LLS for review. Under s 49(2) the LLS must review a draft local strategic plan having regard to the same matters listed under s 47(3) above.

LLS may request a local board to amend a draft local strategic plan before submitting the plan to the Minister for approval (s 49(3)). In assessing a draft local strategic study, the Minister is required to seek and take into account advice, including advice from LLS (s 50). The Minister may approve a draft local strategic plan with or without alteration, or refer it back to LLS for further consideration (s 50(1)). Before making any alterations to a draft plan, the Minister must consult LLS (s 51(3)) . The Minister must not approve a draft local strategic plan for a region unless (s 50(2)) the Minister:

• • •

is satisfied that the plan promotes the achievement of any State priorities for local land services so far as they relate to the region has sought the advice of any person or body engaged to carry out an independent audit of the activities of LLS under s 24 of the LLS Act has obtained the concurrence of the Minister administering the Native Vegetation Act 2003, but only in relation to those parts of the draft plan that relate to natural resource management.

A local strategic plan may be amended or replaced by a subsequent validly prepared and approved local strategic plan and the Minister may revoke a plan wholly or in part (s 53). The LLS must ensure that each local strategic plan is kept under regular and periodic review, while the Minister must ensure that each plan is independently audited with three years of its approval and, at the Minister's discretion, at any other time considered appropriate (s 54).

[16.330]

chapter 16 Catchment management

Other legislation [16.320] This section examines how other legislation may assist in managing catchments in an integrated way. If total catchment management is to be achieved, there is a need for integration of planning and decision-making across all relevant legislation, plans and agencies.

Historically, land use, water use, native vegetation and biodiversity have been managed separately. This exacerbates environmental degradation of catchments because the relationship between vegetation clearing, soil erosion, salinity, water availability and water quality is not recognised. Environmental planning instruments developed at all levels have largely failed to address the effect of planning decisions on elements of natural catchments such as water, native vegetation, soil and biodiversity. This problem has been exacerbated because there has been little or no coordination between the plans developed by government agencies. The result is that decisions about planning for land development are often made in isolation. The introduction of catchment action plans went some way to improving integrated catchment management - in particular for vegetation and water. Whether local strategic plans lead to better integrated land use decisions including catchment and natural resource management - remains to be seen. Some opportunity for limited integration may occur under the plan-making process. Specifically, in preparing draft State and local strategic plans, the LLS must have regard to the provisions of any relevant environmental planning instruments made under Part 3 of the EPA Act. Reciprocal requirements do not exist under the EPA Act, however, when planning authorities are preparing environmental planning instruments, consideration of relevant State and local strategic plans are not required. Unfortunately, like catchment action plans before them, there are no sanctions for noncompliance with State and local strategic plans. Furthermore, as was the case with CMAs, there appears to be only limited involvement of Local Land Services boards in relation to land use planning decisions. For example, development assessment under Part 4 of the EPA Act requires decision makers to consider existing and draft environmental planning instruments (EPA Act, ss 79C(l)(a), (6)), but there is no requirement to consider other natural resource management plans, such as catchment action plans and State and local strategic plans. This notwithstanding, there are regulatory provisions in other legislation that may affect catchment management, in particular:

• • • •

the Water NSW Act 2014 the Environmental Planning and Assessment Act 1979 (see Chapters 3 and 5) the Native Vegetation Act 2003 (see Chapter 12) the Water Management Act 2000 (see Chapter 15)

The Water NSW Act [16.330) Water NSW was established under the Water NSW Act 2014 and commenced operations on 1 January 2015. Water NSW replaced the Sydney Catchment Authority and State Water (that is, the State Water Corporation, which continues as a legal entity, but with the new corporate name of Water NSW (Water NSW Act 2014, s 4)). The Sydney Water Catchment Management Act 1998 and the Sydney Water Corporation Act 2004 were repealed upon commencement of the Water NSW Act 2014.

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Prior to the establishment of Water NSW, State Water was NSW' s rural bulk water delivery agency that maintained and operated major infrastructure to deliver bulk water to licensed water users on the state's regulated rivers, along with associated environmental flows. The Sydney Catchment Authority was responsible only for land within the Sydney drinking water supply catchments. The catchments managed and protected by the SCA covered an area of 16,000 sq. km and encompassed 27 sub-catchments within the Hawkesbury-Nepean, Shoalhaven and Georges rivers. Fifteen local government areas fell within the catchments and they included over 485,000 ha of agricultural land. With the creation of Water NSW this organisation is responsible for managing raw water supply across the State. Specifically it is responsible for the provision of infrastructure for improved water supply and reliability, protecting water quality in its designated catchments ("declared catchment areas"), catchment protection in the Sydney drinking water catchments, asset management, flood operations and mitigation. Water NSW has two sets of objectives primary "principal" objectives, and secondary "other" objectives. Its principal objectives include to (s 6):

• • • • •

capture, store and release water in an efficient, effective, safe and financially responsible manner supply water in compliance with appropriate standards of quality ensure that declared catchment areas and water management works in such areas are managed and protected so as to promote water quality, the protection of public health and public safety, and the protection of the environment

(16.340]

• • • • •

• •

Water NSW also has a number of specific "listed functions" including relevantly to (s 7):

• capture and store water and to release water to entitled users and for any lawful purpose, including the release of water for environmental flows • supply water to the Sydney Water Corporation • protect and enhance the quality and quantity of water in declared catchment areas • manage and protect declared catchment areas and water management works vested in or under the control of Water NSW • undertake flood mitigation and management • undertake research on catchments generally, and in particular on the health of declared catchment areas • undertake an educative role within the community. In terms of catchment management, the activities of Water NSW are focused on "declared catchment areas". One such area is the Sydney catchment area, which has the same meaning and boundary as the catchment area (including division into "inner" and "outer catchments.") under the repealed Sydney Water Catchment Management Act 1998 (Sch 2, cl 17). Functions and powers in relation to catchments under the Water NSW Act 2014 include:

catchment health indicators - appointment by the Minister of a public authority or other person to develop and approve catchment health indicators in relation to the Sydney catchment area and any other declared catchment area (s 41) catchment audits - an auditor to be appointed by the Minister to conduct audits of the catchment health (having regard to catchment health indicators approved under s 41) for the Sydney catchment area and other declared catchment areas (s 42) incorporation of catchment audit findings - evaluation by Water NSW of the findings of a catchment audit and their incorporation into Water NSW's programs and activities relating to catchment management (s 43) reporting - where a catchment audit has been conducted for a declared catchment area ' Water NSW must report to the Minister on progress to achieve improvements, prevent degradation, and to maintain existing, catchment health (s 44) special areas and controlled areas - the Governor, on the recommendation of the Minister, may declare specified land to be a special area (s 47) or a controlled area (s 54).

Compliance and enforcement provisions under the Water NSW Act 2014 empower a "Regulatory Authority" (the Minister or an appointee) to exercise functions in relation to "targeted activities". A targeted activity is an activity in special area or controlled area that has, or is likely to have, caused damage to, or detrimentally affected, the quality of any water, or the catchment health of land, in the area concerned (s 76). Compliance and enforcement powers include:

provide for the planning, design, modelling and construction of water storages and other water management works maintain and operate the works of Water NSW efficiently and economically and m accordance with sound commercial principles.

chapter 16 Catchment management

•

catchment correction notices - whereby the Regulatory Authority can direct a person, reasonably suspected of carrying out a targeted activity, to take corrective action specified in the notice; failure to comply with the notice is an offence carrying maximum penalties of $250,000 in the case of corporations and $120,000 for individuals (s 77) catchment protection notices - being preventive action available to the Regulatory Authority to direct a person carrying on a targeted activity, to take such action to ensure the activity is either not commenced, is no longer carried on, or if carried on in the future, will not detrimentally affect the quality of any water or the catchment health of any land; failure to comply with the notice is an offence carrying maximum penalties of $250,000 in the case of corporations and $120,000 for individuals (s 81) compliance cost notices - where a Regulatory Authority may require a person to whom a catchment correction notice has been given to pay costs incurred in connection with monitoring action required to be taken by the notice and ensuring compliance with the notice (s 86).

Environmental planning instruments [16.340] The Environmental Planning and Assessment Act 1979 allows State environmental planning policies (SEPPs) and local environmental plans (LEPs) to be made to manage natural resources on a catchment basis. Formerly, regional environmental plans (REPs ) were also made under the Act but they were removed from the hierarchy of environmental planning instruments in NSW on 1 July 2009. REPs which remain relevant have been retained and are now treated as SEPPs.

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[16.370)

All consent authorities in a catchment (usually local councils, not LSS boards) must apply the requirements of these environmental planning instruments in making land use decisions that may affect the catchment.

• •

Where a catchment extends beyond a local government area and its management involves more than one agency, it is clearly helpful to have a framework that applies to all concerned. Thus, where a river runs through areas managed by several local councils, it is beneficial to have consistent development standards that can maintain the integrity of the whole river system - for example, by protecting scenic features or preventing sedimentation and erosion of the river bank.

•

chapter 16 Catchment management

provide for healthy water catchments that will deliver high quality water while permitting development that is compatible with that goal provide that a consent authority must not grant consent to a proposed development unless it is satisfied that the proposed development will have a neutral or beneficial effect on water quality support the maintenance or achievement of the water quality objectives for the Sydney drinking water catchment

The SEPP sets out obligations relating to planning and regulating new development in the catchments. These include:

Using environmental planning instruments at catchment level [16.350] For the most part, SEPPs and REPs have not traditionally been used to achieve strategic catchment level planning objectives. Instead, they have been used in an ad hoc way, focusing on specific issues rather than broader regional catchment aims. Examples of such instruments include:

• SEPP 55-Remediation of Land (see [9.2880]) • SEPP 30- Intensive Agriculture (see [11.50]) • SEPP 26-Littoral Rainforests (see [14.430]) .

However, there are some examples of planning instruments used to regulate activities m catchments. These include:

• •

incorporation of Water NSW's current recommended practices and standards in any development or activity proposed in the catchments (cl 9) development assessments under Part 4 of the Environmental Planning and Assessment Act 1979 (see Chapter 5) must include an assessment of whether the activity will have a neutral or beneficial effect on water quality (cl 10)

Under the SEPP, the concurrence of the Regulatory Authority under the Water NSW Act 2014 is ordinarily needed before consent can be given to proposed development on land to which the policy applies. The Regulatory Authority must consider the following factors when deciding whether to grant concurrence (cl 11):

• •

whether the development incorporates Water NSW's current recommended practices and standards;

• Sydney REP (Sydney Harbour Catchment) 2005 (see [14.500]) • SEPP (Sydney Drinking Water Catchment) 2011 (see [16.360]) • Sydney REP No 20: Hawkesbury-Nepean River (No 2 - 1997) • Greater Metropolitan REP No 2 - Georges River Catchment • Murray REP No 2 - Riverine Land.

•

In particular, one case where the environmental planning instrument process has been used, to limited success, is in the Sydney water catchment, where SEPP (Sydney Drinking Water Catchment) 2011, formerly the Drinking Water Catchments REP No 1, applies.

In all cases, the SEPP is deemed to prevail over all other environmental planning instruments in the case of inconsistencies, regardless of whether the plans were made before or after the SEPP (cl 8) .

if the development does not incorporate those practices and standards, whether the alternative practices that relate to the protection of water quality that have been adopted in relation to the development will achieve at least the same outcomes as Water NSW's practices and standards; and whether the development will have a neutral or beneficial effect on water quality.

SEPP (Sydne y Drinking Water Catchme nt) 20 11 [16.360] SEPP (Sydney Drinking Water Catchment) replaced the Drinking Water Catchments REP No 1 in 2011. The SEPP applies to the "hydrological catchment" which falls within the jurisdiction of the former Sydney Catchment Authority. It covers 27 sub-catchments (cl 7) supplying water to Sydney, the Blue Mountains and the Illawarra. The Policy focuses purely on development control, in that seeks to regulate only new development in Sydney's catchments, in contrast to the broader remit of the Drinking Water Catchments REP it repealed. The REP not only dealt with development proposals but also existing development through the formulation of rectification action plans, as well as performing a strategic planning role through strategic land and water capability assessments prepared by the Sydney Catchment Authority, which were required to be considered when preparing draft local environmental plans under Part 3 of the EPAAct.

The aims of the SEPP are to (cl 3):

The Native Vegetation Act [16.370] The Native Vegetation Act 2003 regulates the clearing of native vegetation. Under it, the Environment Minister may delegate to Local Land Services (which now has the catchment management functions of CMAs) his or her role as consent authority in relation to development applications for consent to clear native vegetation (s 48(2)). The Minister may also delegate the function of making decisions on property vegetation plans to the LLS under s 27 (see [12.1480]) and in practice, the LLS carries out the functions of negotiating and approving property vegetation plans. The Act also permits the Director-General of the Department of Primary Industries to delegate to Local Land Services any of his or her functions under that Act (s 48(1)) .

The Act also requires the Minister to consider any relevant provisions of local strategic plans (catchment action plans until these are developed) under the Local Land Services Act 2013 when determining whether to grant development consent for the clearing of native vegetation (s 14(2)).

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[16.380]

The Water Mana gement A ct [16.380] The Water Management Act 2000 is administered by the Minster for Primary

Industries and the NSW Office of Water within the Department of Primary Industries, and is responsible for the management of the state's surface water and groundwater resources. As the key water management legislation in NSW, the Water Management Act 2000 has an inevitable impact on catchment management. The Act aims to provide for the sustainable and integrated management of the State's water resources through seeking to (s 3)):

• protect, enhance and restore water sources, their associated ecosystems, ecological processes and biological diversity and their water quality • recognise and foster the significant social and economic benefits to the State that result from the sustainable and efficient use of water • recognise the role of the community, as a partner with government, in resolving issues relating to the management of water sources • provide for the orderly, efficient and equitable sharing of water from water sources • integrate the management of water sources with the management of other aspects of the environment, including the land, its soil, its native vegetation and its native fauna • encourage the sharing of responsibility for the sustainable and efficient use of water between the Government and water users • encourage best practice in the management and use of water. The Water Management Act 2000 controls:

• extraction of water from watercourses (s 89) • carrying out works in watercourses (s 90) • in some circumstances, undertaking activities in watercourses (s 91). Under the Act, the Minister can declare any land or body of water to be a water management area. These areas need not follow water catchment boundaries, or any other boundaries. The controls that apply in such an area are determined by its water management plan (see (15.320]). Water management plans can contain environmental protection provisions which (s 34 ):

• identify zones in which development should be controlled to minimise any harm to water sources • identify when and how development should be controlled • impose constraints on State agencies and local authorities (including local councils) when taking action and making decisions about development • set out requirements for development consent and concurrence (if necessary) by the Minister • require action plans that encourage: - the abandonment of existing uses that cause harm to water sources - measures to minimise or alleviate harm already caused to water sources by existing uses. These provisions recognise the need for coordination between water management plans under the Water Management Act 2000 and environmental planning instruments under the

[16.390]

chapter 16 Catchment management

Environmental Planning and Assessment Act 1979. The Acts recognise that different agencies are responsible for different aspects of catchment management, but that those agencies should be operating in a consistent framework. Section 389A of the Water Management Act 2000 allows the Minister to confer certain water management functions on Local Land Services:

• • •

assisting the Minister or a management committee in the development and implementation of management plans managing adaptive environmental water under access licenses monitoring water quality and other environmental health objectives of management plans.

Further, with Ministerial approval, Local Land Services may acquire, hold and deal with access licences.

Conclu sion (16.390] There has been significant legislative reform and administrative/organisational

restructuring in recent years in the natural resource management area in NSW. However, whether responsibilities and functions are better integrated as a consequence of these changes is difficult to ascertain. Specialist legislation (that is, the Catchment Management Authorities Act 2003, the Sydney Water Catchment Management Act 1998 and the Sydney Water Corporation Act 2004) has been repealed, the CMAs and Sydney Catchment Management Authority has been abolished, and State Water incorporated into a wider Water NSW. New organisations with broader responsibilities have been created - Local Land Services, Water NSW - along with their own enabling legislation. Other organisations remain - the Natural Resources Commission, Office of Water, Department of Primary Industries and the Department of Planning and Environment again with their own legislation. These changes, driven by benefits such as more integrated local service delivery to landholders, will hopefully not diminish the gains accrued in integrated natural resource - and particularly catchment - management and planning in NSW in recent decades.

785

17 Heritage conservation Judith Preston Solicitor Sessional Lecturer at Macquarie University

Jeff Smith Executive Director EDONSW

The international framework .............................................................................................................................. [17.20] The role of the NSW Government ................................................................................................................... [17.70] Environmental planning instruments ......................................................................................................... [17.510] State records ............................................................................................................................................................ [l 7.580] The National Trust ................................................................................................................................................ [17.590] Historic Houses Trust ......................................................................................................................................... [17.700] The role of the Commonwealth ...................................................................................................................... [17.710] Historic shipwrecks .............................................................................................................................................. [17.940] Overseas Places of Historic Significance to Australia ...................................................................... [17.950] Other legislation protecting heritage ........................................................................................................... [l 7.950]

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[17.10]

(17.10] Heritage protection and conservation are unlike all other areas of environmental law because their planning and project control provisions are so intertwined. Heritage is an exclusively anthropocentric concept, a gloss placed by human beings on artifacts and natural objects. In this view, the value of a forest does not consist simply in its biodiversity: it is an item of our natural heritage. This dependence on human evaluation means that we must use planning systems to identify specific heritage items, although there are exceptions where the law attempts to identify general categories of items (for example, historic shipwrecks and objects of significance to indigenous people).

A decision to accord heritage protection to objects is often controversial, as it can be difficult to identify the many aspects of a nation 's heritage that are worth protecting. Heritage must not simply include the aesthetically pleasing, but must be representative of all stages of culture and all as~ects of the ~nvironment. Hence, examples of brutalist architecture are listed as heritage obiects _along with examples of fine art and federation-style buildings. Very often a panel of professwnal experts will be appointed by statute to identify heritage items and places, but these experts cannot represent all sectors of a diverse society. Although attempts are made to overcome these problems, many remain. For example, the fact that indigenous people view their cultural heritage as an intrinsic part of their identity is often at odds with Eurocentric definitions of heritage. " _A~o_ther ~robl~m is that protection is often only afforded to places that have "outstanding" or s1~n~ficant hentage values, and it can be difficult to reach consensus on whether a place satrnf,~s these_ t~sts. !h~s it is important to have mechanisms that allow for effective public part1c1patwn m 1dent1fymg and managing a nation's heritage.

The international framework [17.20] Protection of both cultural and natural heritage in Australia has been influenced by develo~ments at an international level. The main international convention with respect to protectwn of cultural heritage is the Convention Concerning the Protection of the World Cultural and Natural Heritage (the World Heritage Convention). The United Nations Scientific and Cultural Organization (UNESCO) administers the World Heritage Convention and other international conventions relating to cultural and natural heritage. Such conventions include:

• The Agreement on the Importation of Educational, Scientific and Cultural Materials (1950) 131 UNTS 25; (1992] ATS 12 (the Florence Agreement) • The Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954) 249 UNTS 240; (1984] ATS 21 • The Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and

Transfer of Ownership of Cultural Property (1970) 823 UNTS 231 10 ILM 289; [1990] ATS 2

• The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (UNIDROIT Convention) (1995) 34 ILM 1322 • The Convention for the Safeguarding of Intangible Cultural Heritage (2003) 2368 UNTS • The Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005)

[17.40]

chapter l 7 Heritage conservation

Burra Charter [17.30] The International Council on Monuments and Sites (I CO MOS) adopted the International Charter for the Conservation and Restoration of Monuments and Sites (the Venice Charter) in 1965. It heralded a shift in focus for heritage conservation from monuments and buildings towards a concept of places, which can include "archaeological sites, ruins, buildings, engineering structures, groups of buildings and whole urban areas".

In 1977, the Australian ICO MOS reviewed the application of the Venice Charter to Australian heritage places. In 1979, the Australia (ICOMOS) charter for the conservation of places of cultural significance (Burra Charter) was adopted in Burra in South Australia. The Burra Charter adopted the principles and concepts of the Venice Charter, drafting them in a way that would be practical and useful in Australia. Since its publication, the Burra Charter has been reviewed a number of times. In 1999, Guidelines to the Burra Charter were prepared to assist in the conservation of specific heritage places. The Burra Charter should be read in conjunction with the Guidelines. The Charter's aim is to provide guidance for the conservation and management of cultural heritage places. It advocates a management policy based on the precautionary principle and inter-generational equity (see [19.60]). This policy requires a cautious approach to change, so that only as much as necessary is done to care for a place and make it useable. Otherwise, little change is to occur, so that the place's cultural significance is retained. Use management and change at a heritage place are guided by a conservation policy which is prepared after the assessment of significance and investigation of issues impacting on the heritage place's future (Walker, Understanding the Burra Charter, Australia ICOMOS, 1996). Article 1.2 of the Burra Charter recognises not only the cultural significance of a specific place, but also the cultural significance that can be embodied in the fabric, setting, use or associations that accompany that place.

World Heritage Convention [17.40] The Convention Concerning the Protection of the World Cultural and Natural Heritage

(World Heritage Convention) was adopted by the UNESCO General Conference in 1972, ratified by Australia in 1974 and came into force in 1975. As of August 2014, 191 states and 1,031 properties had ratified the Convention. The objective of the World Heritage Convention is to protect treasures of cultural and natural heritage. Each country must, "to the utmost of its own resources", identify, protect, conserve, present and transmit to future generations cultural and natural heritage "of outstanding universal value" located on its territory (Convention Concerning the Protection of the World Cultural and Natural Heritage, Art 4 ). In addition, each country must "in so far as possible" nominate properties for inclusion in the World Heritage List (Convention Concerning the Protection of the World Cultural and Natural Heritage, Art 11). Properties cannot be included on this List without the consent of the country where they are located (Convention Concerning the Protection of the World Cultural and Natural Heritage, Art 11). The World Heritage Convention (WHC) includes nominated properties for cultural and natural heritage value which have outstanding universal

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value and meet a test of authenticity on the World Heritage List (Art 11). What constitutes outstanding universal value is decided by the WHC in compliance with the Operational Guidelines for the Implementation of the Word Heritage Convention (UNESCO 2013 ). State parties to the World Heritage Convention are required as far as possible for each country to prioritise cultural heritage in the life of the community and to integrate it into the planning system (Art 11(4)). Other responsibilities for State parties include: 1.

establishing services for the protection, conservation and presentation of cultural heritage

2.

development of research and programmes to mitigate threats to cultural heritage

3.

take appropriate measures for identifying, protecting, conserving, presenting and rehabilitating cultural heritage

4.

supporting national and regional training and research centres (Art 15).

While the World Heritage Convention seeks to protect both cultural and natural heritage, it has had a particular influence on the protection of Australia's natural areas. Places located in NSW that are on the World Heritage List include the Greater Blue Mountains, Willandra Lakes (listed for both its cultural and natural values), the Gondwana Rainforests of Australia (in north-east NSW and south-east Queensland), Lord Howe Island and the Opera House. In 1983, the Commonwealth Government passed special legislation to implement Australia 's obligations under the Convention in the form of the World Heritage Properties Conservation Act 1983 (Cth). This has now been replaced by provisions in the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). Protection of world heritage properties under the EPBC Act is further discussed at [17.40] of this chapter. The EPBC Act provides that the Commonwealth can only submit properties located in NSW for inclusion on the World Heritage List if it has used its best endeavours to reach agreement on the proposed submission, as well as the management arrangements, with any owners/occupiers and with the NSW government (s 314).

World Heritage in danger [17.50] The World Heritage Committee has compiled and maintains a list of properties that are in danger of being removed from the World Heritage Convention List. The properties included on this World Heritage Danger List (the List) are facing serious and specific dangers. When a property is placed on the List and publicised, the Committee works with the country concerned to respond to this threat. This may also happen when a property is in danger of being included on the list such as when the Great Barrier Reef in Northern Queensland was at particular risk due to mineral and other development activities in and around the Galilee Basin in 2012.

Overview of heritage law in NSW

[17.80]

chapter 1 7 Heritage conservation

(NSW) which is also related to heritage protection by local governmen~. There is also legis~ati?n relating to heritage protection by statutory bodies such as the Nat10nal Parks. and Wildlife Authority (National Parks and Wildlife Act 1974 (NSW)), the National Trust (National Trust ~f Australia (New South Wales) Act 1990 (NSW)), and the Historic Houses Tr~st (the Htsto_ric Houses Trust 1980 (NSW)). These laws protect the public interest in hent_age. Protective covenants under the Conveyancing Act 1919 (NSW) can provide heritage protection through the regulation of interests in land.

The role of the NSW Government [17.70] The Heritage Act 1977 (NSW) (Heritage Act) provid_es for_ the conser~ation of items of environmental heritage in NSW. Section 3 of the Act sets out its obiects. These mclude:

• promoting an understanding of the State's heritage • encouraging the conservation of the State's heritage • providing for the identification and registration of items of State heritage significance • providing for the interim protection of items of State heritage significance • encouraging the adaptive reuse of items of State heritage significance • constituting the Heritage Council of New South Wales • assisting owners with the conservation of items of State heritage significance.

The Heritage Act uses the term "environmental heritage" wh_ich it defines as items or places that are of State and/or local heritage significance (s 4(1)). They mclude:

• places • buildings • works • relics • moveable objects • precincts. Definitions [17.80] A precinct under the Heritage Act is an area, a part of an area, or any other part of the State (s 4(1)) that contains one or more heritage items.

An item of State heritage significance is significant to the State due to its historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value. An item of local heritage significance is similarly defined but refers to significance to an "area" as opposed to the entire State (s 4A(1)).

[17.60] Heritage is protected by legislation related to environmental and planning law along

with specific heritage legislation. The Heritage Act 1977 (NSW) is the main piece of legislation which also binds the Crown (s 5). Other important laws include the Environmental Planning and Assessment Act 1979 (NSW) which defines the increasingly significant role of local government in protecting heritage found within local council areas, and the Local Government Act 1993

In this section of the chapter, "Minister" refers to the NSW Minister administering the Heritage Act 1977, currently the Minister for Heritage.

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(17.90]

The Heritage Council [17.90] The Heritage Council of NSW was established by the Heritage Act and plays a significant role in implementing that Act. The Council consists of nine members each appointed for up to three years. Eight members are appointed by the Minister (the appointed members). The other three member is the Secretary of the Department of Planning and Environment. Five of the appointed members are to be persons who, in the Minister's opinion, possess suitable qualifications, knowledge and skills in areas such as archaeology, architecture, natural heritage and the building, development and property industries, conservation of environmental heritage, property, economics, rural interests and cultural landscapes. The Minister appoints the Chair of the Heritage Council. The Heritage Council may appoint committees to assist with carrying out its functions (s 21A).

Functions of the Heritage Council

(17.130]

chapter 1 7 Heritage conservation

below) is about to be harmed. No further work, other than work specified in the order, is to be carried out within a 40 day period from the date of the order (ss 136(1), 137). Orders under section 136 may be used to protect both built and natural heritage (Corkhill v Hope (1991) 74 LGERA 33 and Deerubbin Local Aboriginal Land Council v Minister Administering the Crowns Lands Act [1997] NSWLEC 119). Section 136 orders take effect from the date on which a copy of the order is annexed to the building or place (s 136(2)). This can create practical problems if the items are a great distance from Sydney. Within 40 days of an order being made, the Heritage Council must advise the Minister as to whether an interim heritage order (see below) should be made (s 136(3), (5)). At any time after receiving the Heritage Council's advice, the Minister can revoke the section 136 order (s 136(6)).

If a section 136 order is in place, any order under other legislation is void if it permits the item to be harmed, unless it is an order for fire safety under section 121B of the Environmental Ptanning and Assessment Act 19 79 (NSW) (Heritage Act) (s 13 7 A).

[17.100] The functions of the Heritage Council are set out in section 21 and include:

• advising the Minister in relation to his/her functions under the Heritage Act and its regulations • making recommendations to the Minister in relation to measures for the conservation, exhibition or display of, provision of access to, and publication of information concerning, items of environmental heritage

• carrying out investigations, research and inquiries relating to heritage matters • making submissions about environmental studies, draft environmental planning instruments and environmental impact statements as they relate to the environmental heritage • maintaining the State Heritage Inventory, which lists items of State and local heritage significance • conducting community education about the State's environmental heritage • providing opinions, statements or other information about environmental heritage.

The Heritage Council maintains registers required under the Heritage Act, makes submissions on: environmental studies, proposed environmental planning instruments, environmental impact studies and statements with respect to potential impact on items of environmental heritage. The Heritage Council publishes written submissions in relation to State significant developments which are on the internet for access by the public.

Interim heritage orders [17.120] Under the Heritage Act, the Minister can make an interim heritage order if he or she considers that an item might be found to be of State or local heritage significance after further inquiry or investigation (s 24(1)). There is no right of appeal from the Minister's decision (Sandig v Ku-ring-gai Municipal Council [2001] NSWLEC 74). The Heritage Council must provide advice to the Minister on the making of interim heritage orders, either at its own initiative or at the request of the Minister (s 24(2)) .

The Minister can also authorise a local council to make interim heritage orders for items in that council's area (s 25(1)). The Minister's authorisation to a council can be given subject to conditions and may be withdrawn or changed by notice published in the Gazette (s 25(5)). (See Byron Ventilink Pty Ltd v Byron Shire Council [2005] NSWLEC 395). The local council may make an order if it considers that (s 25(2)):

• the item may, on further investigation, have local heritage significance •

the item is likely to be harmed.

The local council cannot make an order if the item is already subject to an order made by the Minister, or is listed on the State Heritage Register (s 25(3)).

Notice of an interim heritage order

Protect ion under the Heritage Act Emergency orders [17.11 0] Under section 136 of the Heritage Act, the Minister or chairperson of the Heritage Council can order work to cease if they believe that a building, work, relic or place which is not currently protected by an interim heritage order or a listing on the State Heritage Register (see

[17.130] Neither the Minister nor an authorised local council is required to notify anyone who will be affected that they intend to make the order (s 26) . However, once such an order has been made, the Minister or council must (s 28(1)):

• publish it in the Gazette • notify the chairperson of the Heritage Council • notify the affected owner or occupier.

Notice of the order must also be published in a newspaper circulating in the area where the item is situated within 7 days of publication in the Gazette (s 28(1)(d)) .

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[17,140]

The notice given to the owner or occupier must include an explanation of the effect of the order, and a statement of reasons for making it. An affected owner or occupier may appeal to the Land and Environment Court of NSW against the making of an interim heritage order by a council (but not by the Minister) within 28 days after the order takes effect (s 30). An appeal to the Land and Environment Court does not stop the order from operating unless ordered by the Court (s 30(3)).

Date of effect and duration [17.140] An interim heritage order takes effect from the date of publication in the Gazette, and remains in force for 12 months, unless a shorter period is stipulated in the order, or the order is revoked in the meantime (s 29(2)).

Revoking an interim heritage order [17.150] The Minister may revoke an interim heritage order made by the Minister or by a local

council (s 29(3) ). A council can revoke its own order but it cannot revoke that of the Minister or of another council. Revocation of the order must be published in the Gazette and in a local newspaper, and affected owners and occupiers must be notified (s 29(5)). The listing of an item on the State Heritage Register automatically revokes any interim heritage order made in respect of that item (s 29(6)).

Places subject to an interim heritage order

[17.200]

•

Listing on the Sta te H eritage Register [17.170] Another important function of the Heritage Council is to keep the State Heritage

Register. Listings and their removal can only be made at the direction of the Minister (s 31). The Minister may direct that a place or item be listed on the Register if it is considered to be of State heritage significance, but the Heritage Council must first recommend the listing (s 32(1)) .

the council where the item is situated.

Some items are automatically listed on the Register, including items that are owned by government bodies and identified as being of State heritage significance.

Procedure for recommending a listing [17.190] Before recommending the listing of an item on the State Heritage Register, the Heritage

Council must (s 33(1)): give each affected owner or occupier written notice of its intention to recommend the listing of the item publish the notice of intention in a newspaper within 14 days of notifying the owner

• • •

invite submissions on the proposed listing.

The Heritage Council must consider the submissions received and then decide whether or not to recommend the listing. The listing criteria used are available at http:// www. environment. nsw. gov.au/resources/heritage branch/heritage/listings/criteria. pdf . Submissions may argue (among other things) that the subject of the proposed listing 1s (s 33(2)):

• • • •

[17.160] There are 12 items or places across NSW subject to an interim heritage order as of

September 2015: (http://www.environment.nsw.gov.au/heritageapp/lnterimHeritageList.aspx).

chapter 1 7 Heritage conservation

• • •

not of State heritage significance does not require long term conservation would mean the item could not be reasonably or economically used would cause undue financial hardship to the owner. Notice of the recommendation must be given to: the owner or occupier the local council in whose area the item is situated each person who made a submission.

As soon as possible after making the decision to recommend a listing, the Heritage Council must inform the Minister (s 33(l)(f)) .

Procedure for deciding on a listing [17.200] Within 14 days after the Heritage Council makes a recommendation for listing, the

While items of local heritage significance can be protected in the short-term by an interim heritage order (see above), protection over the longer term depends on provisions in local environmental plans made under the Environmental Planning and Assessment Act 1979 (see [17.120]).

Minister must decide whether or not to direct listing of the item on the State Heritage Register, and must inform the Council of the decision (s 34(1)(a)).

The State Heritage Register is accessible on the Heritage Council of NSW website at http://www.heritage.nsw.gov.au.

• •

Including places or items on the register [1_7.180~ The Heritage Council can make a recommendation for listing on the State Heritage

List. This may be (s 32(2)) on its own initiative or at the request of:

• the Minister • the owner of the item

After receiving a recommendation to list an item from the Heritage Council, the Minister must decide to (s 34(1)): decide whether or not to direct the listing and inform the Heritage Council of that decision,

• • •

or request the Planning Assessment Commission (PAC) to review the matter.

If the matter is referred to the PAC, within 14 days the Minister must (s 34(2)): consider the advice decide whether or· not to direct the listing inform the Heritage Council of the decision.

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• •

[17.210]

[17.280]

chapter 1 7 Heritage conservation

Where there is a review by the PAC, those entitled to appear before it include (s 36):

Other State Registers

those with a legal interest in the land affected by the listing

[17.240] The Heritage Council maintains other registers which are not part of the State Heritage Register. These include a public register of items subject to interim heritage orders, orders made and notices served under the Heritage Act and heritage agreements made under the Heritage Act, s 22(1).

the owner of the heritage relic or item the local council the Heritage Council of NSW

• the Director-General of the Department of Premier and Cabinet or a nommee of the Director-General • those given leave to appear. After the review, the PAC prepares a report which is submitted to the Minister.

If the Minister decides to list the item, then copies of the PAC report should be made available to the public (s 36(2)). The Heritage Council must, within 14 days notify each affected owner or occupier and make the listing (s 37(1)), which takes effect on the date of publication in the Government Gazette (s 37(2)).

Removing a listing from the register [17.210] The Minister may direct the removal of a listing from the State Heritage Register if the Minister considers that the item is not of State heritage significance and if the Heritage Council also recommends its removal (s 38(1)). The procedure for removal of a listing is the same as that for listing (s 38(3)).

• •

Other registers include: Heritage and Conservation Register - Kept by government instrumentalities listing details of environmental heritage items (ss 170(3), (4)). Items are those which are prescribed by the Heritage Regulation 2012 (cl 22(1)) and are owned, occupied or in the control of the instrumentality. State Heritage Inventory - Items protected by heritage schedules to local and regional environmental plans and the State Heritage Register are included on the State Heritage Inventory (s 21(1)(e)).

Public inspection of registers [17.250] The public may inspect all registers maintained by the Heritage Council of New South Wales (s 22(3)). For a prescribed fee, members of the public may obtain a certificate from the Heritage Council which states whether an item or parcel of land is subject to an interim heritage order or notice or order under the Heritage Act (ss 167, 120M). The Heritage Council may issue a certificate stating whether an item or land is or was listed on the State Heritage Register (s 151).

Heritage certificates Judicial review [17.220] A decision by the Minister under the Heritage Act to decide whether to list or remove an

item from the State Heritage Register is not subject to appeal on the merits but is reviewable on procedural grounds (Nettheim v Minister (1988) 16 ALD 796; see [2.360]).

[17.260] Under section 149 of the Environmental Planning and Assessment Act 1979, councils can issue planning certificates that contain information about a piece of land and set out the legal ground rules for development of that land (see [3.710]). Orders and notices issued under the Heritage Act are not covered in these section 149 certificates, but an application can be made to the Heritage Council for a certificate that specifies whether buildings, works, relics or places are protected under the Heritage Act (s 167).

Items and places on the State Heritage Register [17.230] Items and places currently listed on the State Heritage Register include both cultural and natural sites, such as:

• the Albury Post Office, built in 1880 • the Argyle Cut in the Rocks, built between 1843 and 1868 • the Banco Court (in the Supreme Court House, King Street), built between 1895 and 1896 • Caroline Chisholm Cottage, East Maitland • the Blue Mountains walking tracks • Jenolan Caves Reserve in the Blue Mountains • the Royal Botanical Gardens, Sydney • the Woolloomooloo finger wharf.

The effect of an order or listing [17.270] When an item is subject to an interim heritage order or listed on the State Heritage Register, it is an offence to do various things without the approval of the approval body (s 57). The approval body is (s 56):

• where an interim heritage order is made by the Minister or an item is listed on the State Heritage Register: the Heritage Council, or • where an interim heritage order is made by a local council: the council. Offences

[17.280] If a place or item is the subject of an interim heritage order or placed on the State

Heritage Register, it is an offence under section 57 to:

• demolish the building or work • damage or despoil the place or precinct

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•

[17.290)

[17.340)

move, damage or destroy the relic or moveable object

• excavate any land for the purpose of exposing or moving the relic • carry out any development on the land • alter the building, work, relic or moveable object • display any notice or advertisement on the place or precinct • damage or destroy any tree or other vegetation on the land.

held that the decision not to consider making an order under the Heritage Act was invalid.

Approvals under the Heritage Act ·

[17.310] Under section 59, an app lication to carry

out an activity otherwise prohibited by

section 57(1) may be made by:

Exceptions [17.290] There are a number of exceptions to section 57:

• Where an interim heritage order is made by a council, it does not apply to development or • •

•

demolition of a building or work that is carried out by or on behalf of the Crown (s 57(1A)) Section 57 does not apply to anything that is exempted by a Heritage Agreement (s 57(1B)) The prohibition against excavating any land for the purpose of exposing or moving a relic does not apply to a relic protected by an interim heritage order made by a council (s 57(1C)) Approval under the Heritage Act is not required for State significant development or infrastructure approved under the Environmental Planning and Assessment Act 1979 (ss 89(1)(c), 115ZG(l)(c)); see [11.70]).

If the Heritage Council recommends it, the Minister may grant an exemption from the requirement to obtain the Heritage Council's approval for any of the activities prohibited under section 57. This extends to interim heritage orders made by local councils (s 57(2)). The Minister publishes such exemptions by order in the Government Gazette. If a local council has made an interim heritage order, it has the same powers to grant exemption from the requirement to obtain approval from the Heritage Council (s 57(3)).

Case study: Protecting natural heritage under the Heritage Act [17.300] The Heritage Act has seldom been used to protect items of natural

heritage, leaving these to be protected under provisions in nature conservation legislation (see Chapter 12). However, this does not mean that it could not be used for this purpose. This was confirmed by Justice Stein in the case of Corkill v Hope (1991) 74 LGERA 33. In this case, there was an attempt to have an order under the Act made over an area of State forest threatened by logging. The Minister had decided in 1988 that the Heritage Act should be directed towards the protection of built or cultural items. However, Justice Stein applied the general rule of administrative law that, although decision-makers are entitled to use a general policy to guide decisions, they must consider each case on its merits, and contemplate possible departures from a policy. The court found that the Minister simply applied a general policy not to look to the Heritage Act to protect the natural environment in those situations where a State agency as land manager had assumed responsibility to look after the State's heritage. Instead, the Minister had simply followed the environmental assessment provisions of Part 5 of the Environmental Planning and Assessment Act 1979. It was

• an owner of an item or land • a person with the written consent of the owner • a lawful occupier of Crown land. Making an application

.

. 1

11320] Applications must be made to the relevant approval body (that is, the :Ientage Cou:c1

~r iocal council) (s 60). This body makes the initial decision about the application is 6_3_). W ere the a roval body believes that allowing the activity would materially affect_ the s1gmf1cance o: .t:! it must advertise the application in a statewide daily newspaper and mv1te mspection o ;:e1 ro' osal at its offices during the following three weeks (s 61 and see Lend L~ase Management p p · C ·1 (1986) 68 LGRA 61) Anyone can then make wntten subm1ss1ons Pty Ltd v Sydney City ounci · regarding an application (s 61(3)).

Considering an application . · · r · h 1 body has considerable scope m [17.330] In reaching a dec1s1on on an app 1cat10n, t e approva deciding what matters to take into account. It must look at (s 62):

• the impact of the proposal on the item's heritage significance • conservation aspects • any submissions made under section 61(3).

In addition it can consider such other matters as seem relevant. This allows the a~p~ov~l bo!y to take econ;mic factors into account - for example, hardship to the person app ymg or t e approval or community feelings about the item. The approval body can attach conditions to any approval granted (s 63). This_can include a requirement for security to ensure the work _is sati~factorily completed, or conditions to ensure public safety and convenience where demoht10n 1s mvolved (s 63(4)). . . There is one substantial limitation placed on the approval body' s b~o~d d1scret10n. It must refuse applications that would involve the demolition of the whole of_bmldmgs or w:rks t:at are sub·ect to interim heritage orders or listed on the State Heritage Register, exce_pt w e_re t e~ ~re 1 b 1 d ( 63(2) (3)). There is no appeal agamst this dec1s10n dangerous or are to e re ocate s , (s 64(2)(6)).

Determining an application

.

.

.

. . . b . . writing Where the apphcat10n is 40] The determination of the apphcat10n is to e given m . . . f h (113 · b · d r ants given notice o t e refused or granted subject to conditions, reasons must e given an app 1C right to appeal (s 64).

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The Environmental Law Handbook

(17.350]

Approvals may be deferred until the applicant satisfies the approval body that a specified condition has been met (s 63A(l)). The approval must clearly set out that it is deferred and identify the conditions that relate to the deferment as opposed to conditions of the approval generally (s 63A(3), (4)). Approvals may also be partial, or conditional on a separate approval being obtained (s 63B).

Modifying an approval [17.350] On application, an approval body can modify an approval if satisfied that the modified

approval is substantially the same as the original one, or to correct minor mistakes (s 65A).

Appeals against approvals

[17.390]

there is a requirement for both development consent under the Environmental Planning and Assessment Act 1979 and approval under the Heritage Act, s 57(1). It should be noted however that an exception for the need for heritage approval exists. This relates to approval from a local council for State significant development and Crown development subject to an interim heritage order made by that council (s 57(1A)). The second process applies where approval under the Heritage Act is required and, in addition, an application listed in section 56 of the Heritage Act is made (a "prescribed application").

•

[17.360] If approval has been granted to carry out a prohibited activity relating to a heritage

item, objectors have no appeal rights. The applicant can appeal to the Minister (s 70(1)) if the Heritage Council:

• refuses to grant approval (other than on the ground that demolition is involved), or • attaches conditions with which the applicant is unhappy. The applicant can also appeal to the Minister if refusal is deemed because of a failure to make a decision within a set time (s 65). Appeals are available to the Land and Environment Court if the application for approval involves a determination of the Heritage Council in relation to integrated development (s 70) and from determinations by councils (s 70A). An applicant must ordinarily appeal within 12 months after receiving notification of the determination unless an extension of time is allowed by the Minister or the Court (ss 70(1), 70A(l)). The Minister can request a report from the Planning Assessment Commission to assist with the appeal decision (s 71). People are entitled to appear before the Commission if they have made prior representations about the item which is the subject of the appeal (s 72).

If an applicant is dissatisfied with a determination of a local council in relation to an application for approval, or modification of an approval, they can appeal to the Land and Environment Court (s 70A). Where an approval is granted, objectors have no right of merit appeal under the legislation, but they can bring proceedings for judicial review (see (17.220]). Under section 153, any person has standing to bring proceedings to restrain a breach of the Heritage Act.

Approvals under other legislation [17.370] If there is a proposal to undertake a "controlled activity" (Heritage Act, Pt 4, Div 2) in relation to an item subject to an interim heritage order or listing on the State Heritage Register, and permission is required under other legislation as well as approval under the Heritage Act, there are separate processes to deal with two different situations. Each process is intended to ensure that primacy is given to Heritage Act considerations.

The first is where the development has to be dealt with as an integrated development under the Environmental Planning and Assessment Act 1979 (see [14.580]). This covers situations where

chapter 1 7 Heritage conservation

• •

This includes: an application to a consent authority under Part 4 of the Environmental Planning and Assessment Act 1979 that is not an integrated development or State significant development (see [14.580]) an application to a local council required under section 68 of the Local Government Act 1993 (see [8.60]) (for example, to carry out water supply, stormwater or drainage works) certain applications relating to strata developments.

In these circumstances, approval under the Heritage Act must be obtained before these other applications can be determined, and conditions attaching to any approvals given must not be inconsistent with the Heritage Council' s approval (ss 67, 68). If the conditions are inconsistent, the part of the approval that is inconsistent is void. The entire approval is void if it was given before the Heritage Council made its determination (ss 67, 69). If an applicant carries out any unauthorised controlled activity under the Heritage Act, pursuant to this approval, the consent authority could be liable for any loss and damage suffered by the applicant (s 69).

Appeals relating to "prescribed applications" [17.380] Any appeal against an adverse decision under the other legislation mu~t- be made initially to the Minister rather than the Land and Environment Court (s 76). The Mm1ster must decide whether the issue at stake has special significance for the conservation of an item of environmental heritage. If it does have special significance, the Minister can then determine both the appeal under the Heritage Act and the related appeal under the other legislation. Where_ the Minister decides to determine an appeal, the Minister may request a report and recommendations from the PAC to assist in that decision (s 78). People are entitled to appear before the PAC if they have made prior representations about the item which is the subject of the appeal (s 79).

If the proposal does not have special significance for the conservation of an item of environmental heritage, the appeal under the other legislation must be referred to the Land and Environment Court (s 77).

Additional legal requirements (17.390] Even though an item is protected by an interim heritage order or listing on the State

Heritage Register, there may be other legal requirements to consider.

• •

These may arise from: other legislation an environmental planning instrument (see Chapter 3), or

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The Environmental Law Handbook

•

[17.400]

a restrictive covenant (see (3.220]).

In this situation, the Minister may set aside or modify the competing requirements through an order published in the Government Gazette if the need to conserve the item justifies it. The agreement of any other Minister concerned with the implementation of the requirements in question must first be obtained (s 129). The Minister's power in this situation is considerable. For example, the Minister could set aside a prohibition against a particular development contained in a local environmental plan, and allow a redevelopment to proceed on the grounds that major modifications are the only economically viable way of conserving the heritage item (Leichhardt Municipal Council v Minister for Planning (1992) 77 LGRA 64).

Remedies and penalties Stop work orders [17.400] The Minister or Chairperson of the Heritage Council can make a stop work order if he or she are of the opinion that an item is about to be harmed and approval for this is required under the Heritage Act (s 79C). The order takes effect when it is simply attached to the item (s 79C(3)). Work must not be undertaken in respect of an item subject to an order for a period of up to forty days (s 79C(2) ). A stop work order may also be made in respect of items not subject to any interim heritage order or listing on the State Heritage Register (s 136). Once this order has been made the Minister requests the Heritage Council for priority advice on whether an iterim heritage order should be made over the item (s 136(3)). It is an offence for non-compliance of a "stop work" order or order restricting harm under s 79C ors 136 of the Heritage Act.

• •

the offence was committed without their knowledge they were not in a position to influence the corporation's conduct

• they used all due diligence to prevent the offence. See Burrell v Jacenko [1998] NSWLEC 164.

Orders prohibiting development or use [17.430] If the owner of an item of environmental herit~ge _~as been c~nvicte~ of an offence

involving demolition or damage, the Minister has another s1gmficant sanct10n available. An order can be made restricting development or use of the land for a period of up to ten years, except to restore the item to the condition it was in before the offence was committed (s 161). Before the order is made, the owner must first be given a chance to make a submission against an order being made (s 160(1)). An order must be published in the Government Gaze~te (s 161(1)) and can be revoked at any time by the Minister (s 163). A soon as practicable after as publication, the Minister must serve notice of the order on the owner and the Hentage Council (s 162).

Protection of relics [17.440] The Heritage Act provides for the conservation of relics that ~re_not ~!ready protect~d

by an interim heritage order or listing on the State Register (s 139). A relic 1s defmed as a deposit, object or material evidence that: (a) relates to the non-Aboriginal settlement of NSW; and (b)

Civil proceedings in the Land and Environment Court [17.410] If the Minister or Chairperson cannot be persuaded to make a stop work order any

person can bring proceedings in the Land and Environment Court for an order to restrain a breach of the Heritage Act (s 153). If the damage to the item has already been done, an order can be sought to remedy the situation by, for example, requiring the offender to restore a damaged building (s 154(2)).

Prosecutions [17.420] It is also a criminal offence to breach the provisions of the Heritage Act (s 156). The maximum penalty is a fine of 10,000 penalty units and six months' imprisonment (s 157) or both. Proceedings for offences against the Act may be instituted in either the Local Court or the Land and Environment Court (Heritage Act, s 158; Land and Environment Court Act 1979, s 21(e)). However, the Minister's consent is required before proceedings can be brought in the Land and Environment Court (s 158(3)). Penalties in the Local Court are much lower; the maximum is a fine of 200 penalty units and three months' imprisonment or both.

Prosecutions must be commenced within 12 months of the date the alleged offence was committed (s 158A(l)), or within 12 months after the evidence of the alleged offence came to the attention of an authorised person (s 158A(2)). Where an offence is committed by a corporation, a director or employee is guilty of the same offence and liable to be punished as an individual unless they satisfy the court that (s 159):

chapter 1 7 Heritage conservation

[17.440]

is of State or local heritage significance (s 4(1)).

A person requires an excavation permit from the Heritage Council if t~ey kn~w - or h~ve reasonable cause to suspect that disturbance or excavation will or may result m a relic, mcludmg a historic shipwreck, being discovered, exposed, moved, damaged or destroyed (s 139). However, exemptions can be granted, including in situations where an archaeologi_cal assessment approved by the Heritage Council indicates that there is little likelihood of there bemg any relics present (s 139(4)(d)). Those who believe that they have discovered a relic, whether or not they have a permit, must notify the Heritage Council within a reasonable time (ss 146, 146A). In most circumstances, relics which are found are forfeited to the Crown, without payment of compensation (ss 146B - 146C). Anybody who finds the remains of a ship or an article associated '"":it~ a ship in wate~s covered by the Act must, as soon as practicable, notify the Commonwealth Mm1ster for the Environment, giving a description and location (Historic Shipwrecks Act 1976 (Cth), s 17). They can be rewarded for this (s 18). Anybody in possession, control or custody of a declared article is required to notify_ the Minister within 30 days, stating its location (Historic Shipwrecks Act 1976, s 9). The MmIS t er also has the power to issue notices requiring the provision of information to t~ose suspected of having possession, control or custody of declared historic shipwrecks and relics (s 10), and to issue directions relating to their preservation and custody (s 11).

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The Environmental Law Handbook

[17.450]

Heritage agreements [17.450] The Minister may enter into a voluntary heritage agreement to conserve an item that is listed on the State Heritage Register (Heritage Act, s 39). Before entering an agreement with the owner, the Minister must first obtain and consider the advice of the Heritage Council.

A heritage agreement can cover a number of issues, including (s 40):

• conservation of the item • financial, technical or other professional advice or assistance required for the conservation of the item • restrictions on the use of the item or the land on which it is situated • requirements for the carrying out of specified work • restrictions on the kind of work that may be carried out • exemption of certain activities from interim heritage orders and listing on the State Heritage Register • the carrying out of work and the standard of the work and repayment of any assistance money • public appreciation of the State heritage significance of the item • availability of the item for public inspection. A heritage agreement is not a regulatory instrument and accordingly cannot be suspended under s 28 of the Environmental Planning and Assessment Act 1979 (Heritage Act, s 46; see [17.450]).

Varying or terminating on agreement [17.460] The Minister, after obtaining and considering the advice of the Heritage Council, may

vary or terminate a heritage agreement provided the owner of the item agrees (s 41). The agreement takes effect and expires on a date specified in the agreement (s 42).

Agreements run with the land [17.470] Where a heritage agreement relates to land, the agreement can be registered by the Minister, provided that each person with an interest in the land agrees to this (s 43(1)). An agreement is registered on the title to the land (s 43). Once an agreement is registered, it is binding on and enforceable against the subsequent owners of the land, as if they had entered into the agreement personally (s 43(3)).

chapter 1 7 Heritage conservation

[17.510]

If the Court believes that it is desirable to do so, it may grant an interim injunction pending the determination of the application (s 44(3)). The Court cannot require the Minister to give an undertaking as to damages, as would usually happen when an interim injunction is granted (s 44(4), see [7.810]).

Financial assistance The Heritage Incentive Fund [17.490] Under s 45 of the Heritage Act, the Minister may arrange for fina~cial, tech~ical _or other assistance to be given to the owner of the item to ensure its conservat10n. The fmanc1al assistance is to be provided out of a Heritage Incentive Fund established under the Act (ss 45,

105A).

The Heritage Conservation Fund [17.500] In addition to financial assistance with land tax, duty and rates under section 45, assistance is available from the Heritage Conservation Fund (s 103). Money for the fund (s 104)

consists of:

• money appropriated by Parliament • money borrowed by the Corporation (defined in s 101) set up under section 103 of the Heritage Act • fees, charges and penalties collected under the Heritage Act • any other money received by the Corporation, by way of gift, for example. The purposes for which the Fund can be used (s 105), include:

• payment of all charges, costs and expenses of the Minister and the corporation in exercising their functions under the Heritage Act • conserving any item of environmental heritage that has been vested in the corporation • making grants or loans so as to promote or assist the conversation of items of environmental heritage. The Corporation can also make grants or loans, or guarantee loans, to promote or assist the conservation of items of environmental heritage (s 106).

NSW Heritage Grants [17.51 0] The NSW Heritage Grants program provides funding under the following streams:

Injunctions to restrain breaches of agreement [17.480] If the Minister makes an application, the Land and Environment Court can grant an

injunction to restrain a threatened or possible breach of a heritage agreement, or the continuation of a breach (s 44(1) ). An injunction can be granted without the Minister having to show a likelihood of damage (s 44(2)).

• State Heritage Grants - available for owners and managers of State Heritage Register listed items. There are three programs under this stream: 1.

major works projects

2.

heritage reports

3.

emergency works projects.

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The Environmental La w H a ndbook

•

• •

[17.520]

Community, youth and seniors heritage projects - available for community, youth and semors groups, non-profit organisations, businesses, local councils and some State agencies. Ab~rigin_al he~itage _places projects - available for projects that benefit an Aboriginal hentage item either listed on the State Heritage Register or as an Aboriginal Place.

Local government grants - available for NSW local councils only. There are three programs under this stream: 1.

local heritage places grants

2.

local government heritage advisors

3.

local government heritage planning studies.

Details of the NSW Heritage Grants program is available at http://www.environment.nsw.gov.au/ Heritage/funding/index.htm.

Rotes and taxes [17.520] The Heritage Act incorporates special rating and taxing provisions where land is listed on the State Heritage Register. ~s soon as practicable after listing, the Minister must request a valuer to make a hentage valuat10n of the land for rating or taxing purposes (s 124). The level of rates or taxes payable on the land must then be re-determined on the basis of the heritage valuation (s 127).

Land tax [17.530] If land is listed on the State Heritage Register, the owner is also entitled to relief under the Land Tax Management Act 1956 (NSW). This Act provides for the payment of land tax on the unimproved capital value of land. Usually, the amount of tax payable is calculated on the basis of all of the parcels of land owned by an individual. However, under the Heritage Act the tax to be paid on land that is listed must be calculated separately from any other parcels of land owned by the person concerned (s 128).

Taxation relief for conservation [17.540] Taxation concessions for conservation are available under Commonwealth income tax

(17.570]

Maintenance of heritage items [17.550] The Heritage Act requires that minimum standards be met for maintenance and repair

of a heritage item that is listed on the State H eritage Register. Under section 118, the standards relate to:

• the protection of the relic from damage or deterioration due to weather (including weatherproofing of roof and doors) • the prevention of fire and the protection of the item from it • security, including fencing and surveillance to prevent vandalism • essential maintenance and repair necessary to prevent serious or irreparable damage or deterioration. The details of the minimum standards of repair are set out in clauses 9 - 20 of the Heritage Regulation 2012. Details of work deemed to be essential maintenance and repair are set out in clause 15. The work is to prevent serious and irreparable damage, including taking measures to control pests and maintaining a stable environment for archaeological relics.

Failure to maintain on item [17.560] It is an offence under section 119 if the owner fails to ensure that an item is maintained and repaired in accordance with the minimum standards imposed by the Regulations. Proceedings for such an offence, however, can be instituted only with the written consent of the

Minister.

Orders from the Heritage Council [17.570] If the Heritage Council is satisfied that the item is not being properly maintained and

repaired, it may give the owner an order to do certain things or to refrain from doing certain things (s 120). An order can be given whether or not the owner of the item has previously been prosecuted for, or convicted of, an offence in respect of the failure to maintain or repair the item (s 120(3)).

and capital gains tax legislation (Income Tax Assessment Act 1997), for example:

• Income tax deductions can be claimed for gifts to eligible environmental organisations (ss 30.15, 30.55, 30.250 - 285). • Tax deductions for certain heritage donations can be spread over a period of five years (ss 30.246 - 30.249D). • Income tax concessions may be claimable by landowners where the market value of their land decr_eases as a result of them entering into a Commonwealth approved perpetual cons~r~at10n c_ovenant (see [12.1590]) with a State or Commonwealth Government body or an eligible environmental organisation, for which they receive no material benefit (s 31).

• Concessional capital gains tax treatment may be available on the sale of land where a landowner has entered into a conservation covenant (ss 104.35, 104.47). For more information see http://www.environment.gov.au/about/tax/index.html.

chapter 1 7 Heritage conservation

To ensure procedural fairness, the following procedures must be complied with before giving an order (s 120(2)): The Heritage Council must give notice to the person of its intention to give the order, including the terms of the proposed order and the period within which the proposed order

•

• •

must be complied with (s 120A(l)). The person must be notified of their right to make written representations to the Heritage Council saying why the order should not be made (s 120A(2)). The person may make those representations to the Heritage Council (s 120B).

The Heritage Council is required to consider any representations made concerning the order, and may determine to give an order, with or without modifications, or refrain from giving the order (s 120C). The affected person is entitled to a statement of reasons for the Heritage Council's decision (s 120D).

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The Environmental Law Handbook

[17.580]

An order must specify a reasonable period within which the terms of the order are to be

complied with (s 120E(l)). An order may require intermediate compliance if there are circumstances that the Heritage Council believes constitute a serious risk to the building, work or relic concerned (s 120E(2)). A person may appeal to the Land and Environment Court against the provisions of an order (s 120L). When the Heritage Council gives the person notice of its decision, it must advise the person of their right to appeal and specify the period within which an appeal may be made (s 120F). On appeal, the Land and Environment Court can (s 120L):

• revoke, modify or substitute the order • hold that the order has been complied with • make orders for compliance • make other orders as it thinks fit.

See Byron Ventilink Pty Ltd v Byron Shire Council [2005] NSWLEC 395. Where a person fails to comply with an order made under section 120, the following consequences may follow (s 121):

• • •

the land on which the building or work is situated can be appropriated the Minister may direct that no development or use of the land {apart from conservation) be carried out for up to 10 years the Minister can direct that there be no development or use of the land other than development or use of the building itself (the "building envelope") occupied at the time the section 120 order was served.

[17.620]

•

chapter 1 7 Heritage conservation

the agency ceases to occupy or demolishes any place, building or work entered in its register.

Management of heritage items by State agencies [17.600] An agency must not only identify but manage heritage items on its register as well as

those listed on the State Heritage Register that are under its care or control. Maintenance must be in accordance with State Owned Heritage Management Principles approved by the Minister on the advice of the Heritage Council, and notified by the Minister to government agencies (s 170A(2)).

Environmental planning instruments Conservation provis ions in planning proposals [17.610] Direction 2.3, made under section 117(2) of the Environmental Planning and Assessment Act 1979, provides that conservation provisions must be included in planning proposals (see Chapter 3, [3.710]) lodged on or after 1 July 2009. These provisions must facilitate the conservation of:

• • •

Conservation management plans

items, places, buildings, works, relics, moveable objects or precincts of environmental heritage significance to an area, identified in an environmental heritage study Aboriginal objects or Aboriginal places that are protected under the National Parks and Wildlife Act 1974 Aboriginal areas, objects, places or landscapes identified by an Aboriginal heritage survey and provided to the relevant planning authority, which identifies the area, object, place or landscape as being of heritage significance to Aboriginal culture and people.

[17.580] The Heritage Council may endorse a conservation management plan for an item listed in the State Heritage Register (s 38A).

The Stan dard In strument LEP Heritage managed by State government agencies Heritage and conservation registers [17.590] All State agencies, including State-owned corporations, are required to keep a heritage and conservation register listing heritage items that they own that are listed as a heritage item in an environmental planning instrument, or subject to an interim heritage order or listed on the State Heritage Register or have been identified by the agency itself as having State heritage significance. Registers can be inspected by members of the public (Heritage Act, s 170; H eritage Regulation 2012, cl 22 ).

• •

Agencies are required to notify the Heritage Council when (s 170A(l)): items are removed from their register ownership is transferred

[17.620] The Standard Instrument Principal Local Environmental Plan (Standard Instrument LEP), which forms the basis for new local environmental plans, (see [3.100)) contains a compulsory provision on heritage conservation (cl 5.10). The clause covers both mapped heritage conservation areas, including places of Aboriginal heritage significance, and heritage items specified in an inventory available at council offices. Development consent is required from the consent authority for a range of activities, including (cl 5.10(2)):

• •

demolishing or moving a heritage item, or a building, work, relic or tree located in a heritage conservation area altering a heritage item and things (including trees) located in a heritage conservation area, including making structural changes to the interior of a built heritage item

• erecting a building on land on which a heritage item is located, or that is within a heritage •

conservation area, or subdividing the land disturbing or excavating archaeological sites or places of Aboriginal heritage significance.

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The Environmental Law Handbook

(17.630)

(17.670)

chapter 1 7 Heritage conservation

Where there is a proposal to develop an archaeological site or to demolish an item identified as being of State significance (even though it is not protected under the Heritage Act), the Heritage Council must be consulted (cl 5.10(7), 5.10(9)). Where a place of Aboriginal heritage significance is involved, local Aboriginal communities must be notified and their response considered (cl 5.10(8)).

finally made orders consistent with an amended proposal by the Applicant to achieve a balance of protection of the heritage values with the development of the site.

Apart from the matters that councils are required to consider under section 79C of the Environmental Planning and Assessment Act 1979 when deciding whether or not to grant consent (see (5.1180]), they must specifically consider the effect of the proposed development on the heritage significance of a heritage item or heritage conservation area (cl 5.10(4)). They have a discretion to require the preparation of a heritage impact statement (cl 5.10(5)). They can require the submission of a heritage conservation management plan before deciding whether or not to grant consent (cl 5.10(6)).

[17.650] Under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, complying development cannot be undertaken on land which is either an item listed on the State Heritage Register, or subject to an interim heritage order under the Heritage Act, or is identified as an item of environmental heritage or a heritage item by an environmental planning instrument (cl 1.17A{l}{d)), except in limited circumstances (cl 1.17A(2)).

In Harbour Port Constructions Pty Ltd v Woollahra Municipal Council [2004] NSWLEC 283, the Land and Environment Court (per Bignold J) refused consent to demolish a cottage as it was a significant contributory item to the relevant Heritage Conservation Area and to the specific local street precinct which was recognised under the relevant LEP and development control plan.

Conservation incentives [17.630] Even where development consent would not ordinarily be given under the provisions of the Standard Instrument LEP, it can be given if this facilitates the conservation of a built heritage item or the land on which it is located (cl 5.10(10)). However, the proposed development must be in accordance with a heritage conservation management plan. In addition, it must not affect the building's heritage significance and it must not have a significant adverse effect on the amenity of the surrounding area.

Development near heritage items [17.640] Under the Standard Instrument LEP, local councils have a discretion to require the preparation of a heritage impact statement where the land to be developed is in the vicinity of a heritage item or heritage conservation area (cl 5.10(5)). In Kimber v Ku-ring-gai Municipal Council (1990) 130 LGERA 117 (judicial review of a council decision to approve a development application involving a private hospital: see (12.930]), it was held that the council did take the impact of the proposed development on the heritage item found in the vicinity of the hospital grounds into account on the basis of the local knowledge of councillors, rather than commissioning an expert report and relying on it. See also Lyons v Sutherland Shire Council (2001) 117 LGERA 334; (2001] NSWCA 430. In Stanton Dahl Architects v Penrith City Council [2009] NSWLEC 1204, the Land and Environment Court allowed an appeal against a council refusal of an application to demolish a number of structures and to build a school (with school facilities) on grounds in the vicinity of a number of heritage listed buildings. These buildings possessed varying State and national significance including being listed on the State Heritage Register and the Register of the National Estate (see below), and by the National Trust. The Court took into account the provisions of the relevant regional environmental plan, the provisions of the Burra Charter (see (17.30]) and a draft Heritage Agreement (see (17.120]) between the relevant Minister and the owner. The Court

Complying and exempt development

Similar provisions limit the ambit of complying development under the Codes SEPP where the land is within a heritage conservation area or a draft heritage conservation area (see, for example, cll 1.19(1) and (5). Development cannot be classified as exempt development (see [5.290]) where it is to be carried out on land that comprises, or on which there are items listed on, the State Heritage register or subject to an interim heritage order (cl l.16(1)(c)). In addition many individual development types specified as exempt development in the SEPP contain specific standards relating to heritage items or places (see Part 2: Exempt Development Codes).

Development Control Plans (DCPs) [17.660] Some protection for heritage items may be achieved by inclusion in a development control plan (see [3.670]), for example within the Woollahra Development Control Plan 2015 are controls for 11 heritage conservation areas (HCAs) referred to as "neighbourhood HCAs". Those neighbourhood HCAs are identified in Schedule 5 of the Woollahra LEP 2014 and recognized as having particular cultural significance on the basis of values of aesthetics, history, scientific and/or society. Neighbourhood HCAs make a positive contribution to the character of the local area. See also National Australia Bank v Drummoyne Municipal Council (1988) 130 LGERA 299; [1988] NSWLEC 63.

Planning instruments and heritage provisions [17.670] There is a great deal of potential overlap between the protective provisio_ns o~ the Heritage Act and the Environmental Planning and Assessment Act 1979. Where an item 1s of more than purely local heritage significance, there may be a dual process of project control: interim heritage orders made by the Minister or listings on the State Heritage Register operate alongside consent requirements in local environmental plans. In these circumstances, applications for development consent will be dealt with as integrated development (see [14.580]). Furthermme, where a heritage approval is granted, development consent under the Environmental Plannmg and Assessment Act 1979 cannot be refused on heritage grounds (Environmental Plannmg and Assessment Act 1979, s 92). However, in particular cases, exemptions from the need to get approval under the Heritage Act can be granted (Heritage Act, s 57(2); see [17.290])).

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[17.680)

chapter 1 7 Heritage conservation

[17.710)

State records

involves the identification and assessment of cultural significance, including historic, aesthetic, social, scientific or other value. However, listing by the Trust in itself has no regulatory

[17.680] The State Records Act 1998 (NSW) provides for the protection of State records in NSW by each public office of NSW. Under the Act, it is an offence if a State record is (s 21):

consequences.

• abandoned • disposed of • damaged • altered • neglected. It is also an offence to transfer ownership of a State record.

Historic Houses Trust [17.700] The Historic Houses Trust is a statutory body established under the Historic Houses Act 1980 (NSW) (s 5(1)). The Trust has nine appointed Trustees (s 6). Committees may be appointed to assist the Trustees (s 9). It holds, manages and _maintain_s buildings as_ house museums. Buildings are chosen for their historic, social and architectural mterest. They mclude Elizabeth Bay House, Government House, Hyde Park Barracks Museum, the Mint and Rouse Hill House and Farm. The duties of the Trust are to:

Part 6 of the Act also provides that State records are accessible by the public 30 years after they came into existence. Further information regarding access to state records is available at http://www.records.nsw.gov.au.

• •

The National Trust

The Heritage Minister responsible for the Act has the ultimate decision as to the direction and functioning of the Trust and must approve the acquisition of buildings suitable as museums an_d conservation plans for historic houses (s 10). The Minister may divest land from a public authority and transfer it to the control of the Trust where appropriate (ss 4(3_), 20, 21). The Trus_t reports annually to State Parliament and auditing standards under the Public Finance and Audit

[17.690] The National Trust is a statutory body corporate established under the National Trust

of Australia (New South Wales) Act 1990 (NSW). The Trust has a Board of Directors including an Executive Director, a Board-appointed director, and 12 other elected directors. The directors have the same corporate duties as company directors under the Corporations Act 2001 (Cth). The National Trust is subject to parts of the Corporations Act 2001. The Trust has broad powers under sections 14 and 16 of the Act. Its functions and duties include:

• owning and operating house museums and galleries • surveying and assessing the built cultural and natural heritage of NSW • making submissions and providing advice to Federal, State and local governments.

Through donations, fundraising and memberships, the Trust maintains and operates many of Australia's most significant heritage properties including: SH Ervin Gallery, St Ignatius Convent School, Governor Macquarie's Tomb and Old Government House. Properties owned by the Trust have been acquired in different ways, such as by being bequeathed (for example, Ahimsa the house of Marie Byles, who was the first female solicitor admitted in NSW) or acquisition through Government pledge and corporate sponsorship (such as Juniper Hall). A register of land held by the Trust and its current use is available for public inspection (s 21).

provide educational and cultural services to promote public knowledge and enjoyment.

Act 1938 apply to the Trust.

The role of the Commonwealth [17.710] The main Commonwealth legislation dealing with the protection and conservation of heritage are the Environment Protection and Biodiversity Conservation Ac_t 1999 (Cth) _(EP~C Act) and the Australian Heritage Council Act 2003 (Cth) (AHC Act). Other important legislative

schemes for protecting cultural heritage are the: l. Protection of Movable Cultural Heritage Act 1986 (Cth) regulating the movem~nt of items of Australian Cultural heritage offshore including fine and ethnographic art documents and photographs which are listed on the National Heritage Control List 2.

Protection of Cultural Objects on Loan Act 2013 (Cth)

3.

Sydney Harbour Federation Trust Act 2001 (Cth).

The framework of the EPBC Act, including the environmental approval processes it conta_ins, is discussed in detail in Chapter 7. This section will examine those sections of the Act that directly relate to the protection and conservation of heritage at a Commonwealth level.

Where the Trust holds property under a trust, it can be varied with permission from the Attorney-General if the value is less than $500,000, or the Supreme Court if the value is over $500,000 (s 17(2) ). The Trust also maintains a Register of places which are determined, following assessment, to have cultural significance and conservation value. The Register has free and open access for inspection of all National Trust properties (s 21, National Trust of Australia (New South Wales) Act 1990). There are currently around 12,000 items on the Register. The listing procedure

conserve buildings and surrounding land and objects

In this section, "Minister" refers to the Commonwealth Minister administering the EPBC Act, currently the Minister for the Environment.

•

The objectives of the EPBC Act include (s 3(1)): the protection and conservation of heritage; and

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[17,720]

assistin~ in the. coop~rative implementation of Australia ' s international environmental responsibilities (mcludmg the World Heritage Convention: see above at (17.40]).

[17.760)

chapter 1 7 Heritage conservation

Case study: The EPBC Act

The · r·1ves, 1t · me · 1u des • • Actt specifically states in section 3(2) that in order to achieve 1·ts obJee prov1s10ns o:

Flying Foxes Case

• .enhance · · . the protection, conservation and presentation of w; r ld H entage properties

[17.740] The Act may regulate activities outside of world heritage properties. In

•

0

1dent1fy places for inclusion in the National Heritage List and the C lhH · L' d . ommonwea t entage 1st an to enhance the protect10n, conservation and presentation of those places.

Australian Heritage Council [17.720] The Australia Heritage Council (AHC) is established under the A t /' H · Council Act 2003 (Cth). Its functions include (s 5): us ra tan eritage

• ~d~isi~g t~e Minist~r on conserving and protecting places included or being considered for me us10n m the Nat10nal or Commonwealth Heritage List (see below) • nomina_ting places for inclusion on both the National and Commonwealth Heritage Lists • promotmg the identification, assessment, conservation and monitoring of heritage. . The AH~'s ~e°:bers~ip m_ust include two members with expertise in natural herita e two with expertise m h1stonc hentage and two indigenous members with expe t' · • d~ ' heritage (s 7(3)). rise mm 1genous

Protection of World Heritage [17-?~0J ~nder section 12 of the EPBC Act, an action is prohibited if it is likely to have a

s1gmf1ca~t impact ~n- the world heritage values of a declared world heritage property, unless it is appdrov_el . by the Mm1ster. The approval process and the civil and criminal penalties are discussed m eta1 m Chapter 7. ' The Act se~s out the process by which a property can be declared to be a world herita e property. Sect10n 1~ provides that the Minister may declare the property to be a World Heritage property by notice m the Commonwealth of Australia Gazette if: g

• fit has· been submitted by the Commonwealth to the World H ·t C · · l · en age omm1ttee as smtable or me us10n on the World Heritage List (s 14(1)(a)), or • thhe Minister is satisfied that the property has or is likely to have world heritage values and t ose values are under threat (s 14(1)(6)).

Befo7 making a _decl~rati~n, the Minister must inform the affected State or Territory of the prop_osa and provide I~ wit~ an opportunity to comment on the proposal. There is no requirement for consultat10n with the affected State or Territory if th M' · · d declaration and the world h . l f e mister mten s to make a entage va ues o a property are under imminent threat (ss 14(2), (3)).

Booth v Bosworth [2001] FCA 1453, a number of electric grids had been erected by a lychee farmer to protect his crop against damage by Spectacled Flying Foxes. His property was adjacent to the Wet Tropics World Heritage Area in Queensland which was part of the habitat of the flying foxes. The farmer's actions were at present and would in the future have a significant impact on the flying fox population by potentially halving the population within 5 years and endangering the remaining population. A successful application was made to the Federal Court for an injunction restraining the operation of the grid as it affected the flying fox, which added natural historical value to the character of the Wet Tropics World Heritage Area. The injunction was based on the operation of section 12 of the Act which prohibits actions which have a "significant impact on the World Heritage values of a declared World Heritage Property". The farmer subsequently was denied approval for the future operation of the grid. Shortly after the Queensland government announced it would no longer approve the operation of the grid. See also Queensland Conservation Council Inc v Minister for Environment and Heritage [2003] FCA 1463 (the Nathan Dam case), discussed in Chapter 7 ((7.500]).

Management of world heritage properties [17.750] The Commonwealth is responsible for the management of world heritage properties

only where they are located on Commonwealth land. A management plan must be prepared as soon as practicable after the property has been included in the World Heritage List and reviewed every 5 years (ss 316, 319). The plan must not be inconsistent with obligations under the World Heritage Convention and the Australian World Heritage management principles (ss 316, 323; Environment Protection and Biodiversity Conservation Regulations 2000 (EPBC Regulations), reg 10.01 and Schedule 5). Commonwealth bodies must not contravene management plans. Where a plan is not yet in force, they must take reasonable steps to make sure that their actions are not inconsistent with the Australian World Heritage management principles (s 318). Listed World Heritage properties in NSW which are not on Commonwealth land are ordinarily managed by the State. The EPBC Act simply provides that the Commonwealth "must use its best endeavours" to see that a management plan which is not inconsistent with Australia's obligations under the Convention is prepared and implemented in cooperation with NSW (ss 320, 321), perhaps offering financial or other assistance as an inducement (s 324) including annual grants to funding packages for specific projects, places and properties consistent with the Commonwealth government's employment and economic policies.

Protection of National Heritage [17.760] The EPBC Act provides for a place to be listed on the National Heritage List as a trigger for Commonwealth environmental assessment and approval processes (see Chapter 7). National

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(17.770]

heritage places are not confined to areas and properties owned or controlled by the Commonwealth. The National Heritage List consists of places that have National Heritage values (EPBC Act, ss 324C(2), 324D). The National Heritage value of a place is the value that results in it meeting National Heritage criteria set out in the EPBC Regulations (s 324D; reg 10.0lA). These require the place to have outstanding heritage value for the nation for at least one of a range of reasons covering both natural and cultural heritage, for example, the presence of uncommon, rare or endangered aspects of Australia's natural or cultural history or its potential to yield information that will contribute to an understanding of Australia's natural or cultural history or its importance as part of indigenous tradition.

[17.800]

Removing a place from the National Heritage List [17.780] After first obtaining and considering the advice of the AHC and comments from the

public invited by public notice (s 324M), the Minister can remove a place from the National Heritage List, or remove one or more of the National Heritage values for which it was originally listed, if satisfied that (s 324L): it no longer has any national heritage values, or the national heritage value in question, or

• •

removal is in the interests of Australia's defence or security. Reasons must be given.

Emergency listing on the National Heritage List [17.790] Where the Minister believes that a place has or may have National Heritage values, and

Notional Heritage List [17.770] The Australian Heritage Council (AHC) advises the Minister on conserving and

protecting areas included or considered for inclusion in the National Heritage List or the Commonwealth Heritage List; nominates places for these lists; advises the Minister on inclusion of places in, or removal of places from, the List of Overseas Places of Historic Significance to Australia; and assists in other heritage matters (s 5, AHC Act). To include a place on the National Heritage List the Minister must follow the consultation process set out in Part 15 of the Act. The process is based on annual cycles of 12 month periods (assessment periods), with the Minister deciding the start of the first assessment period (s 324G). The Minister can determine priority heritage themes for each assessment period, but this is optional (s 324H). The normal listing process then consists of the following steps:

• • •

before the start of each assessment period, the Minister invites people through the internet and a daily newspaper to nominate places for inclusion in the National Heritage List (s 324]; reg 16.05A). Anybody can make a nomination. Nominations containing the required information (reg 10.0lB) are passed on to the Australian Heritage Council (AHC) (s 324JA). the AHC prepares and delivers to the Minister a proposed priority assessment list (PPAL), comprising the places it considers should be assessed, including any which the AHC itself wishes to nominate, and assessment completion times (ss 324JB, 324JC, 324JD) the Minister has a broad discretion to determine the heritage themes for priority in an assessment period (s 324H), and to make changes, including additions and deletions before making the finalised priority assessment list (s 324JE)

• the AHC publishes the finalised priority assessment list (s 324JF) • after inviting public comment on each place in the finalised list, the AHC assesses whether it •

meets the National Heritage criteria and provides the assessment to the Minister within the time limit specified in the finalised list or an extended period of up to five years agreed by the Minister (ss 324JH, 324JI) the Minister decides whether the place has National Heritage value and should be included in the National Heritage List (s 324JJ).

The National Heritage List is available (s 324P) at http://www.environment.gov.au/heritage/ places/national/list.html.

any of those values are under a significant adverse threat that is both likely and imminent, the Minister may immediately include the place in the National Heritage List. This is done by notice including those National Heritage values supporting his/her decision which is published in the Gazette (s 324JL), with a copy posted on the internet (s 324JL(3)). In addition, all practicable steps must be taken to identify and advise owners (ss 324JL(3), (4)). Within 12 months of the place obtaining an emergency listing, the Minister must decide whether or not it is to remain listed (s 324JQ), or the listing lapses (s 324JQ(4)). Before making this decision, the Minister must obtain an assessment from the AHC of whether it meets any of the National Heritage criteria (ss 324JM, 324JQ(2)) and specify a time for completion of the assessment, although this can be extended (s 324JP). The AHC must carry out the assessment after inviting public comment and provide it to the Minister (ss 324JN, 342]0).

Regulatory consequences of Notional Heritage listing [17.800] The provisions of the EPBC Act prohibiting actions that are likely to have a significant

impact on the National Heritage values of a National Heritage place without Commonwealth assessment and approval (ss 15B, 15C) are much more complex than the provisions relating to other matters of national environmental significance identified in the Act as triggers for Commonwealth intervention (see [7.40]). This stems from the limitations placed on Commonwealth legislative power by the Commonwealth Constitution (see [l.450]). Most of the triggers for Commonwealth intervention are based on the external affairs power, and this ~l~ows the legislation to prohibit actions by anybody at all where they are likely to have _a s1gmficant impact on a matter for which the Commonwealth has obligations under an mternat10nal convention. The National Heritage trigger, on the other hand, is based on other Commonwealth heads of power, such as the corporations power and the trade and commerce power because National Heritage, as distinct from World Heritage, is not something which Australia is required to protect under an international convention. As a result the prohibition of actions that are lik~ly to have a significant impact on the National Heritage values of a National Heritage place applies to actions carried out by:

• Commonwealth bodies • foreign, financial and trading corporations • anybody for the purposes of international or interstate/Territory trade and commerce • anybody, where the likely significant impact is on indigenous heritage values

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[17.810]

[17.840]

chapter 1 7 Heritage conservation

anybody, where Australia has obligations in relation to the National Heritage place in question under Article 8 of the Convention on Biological Diversity (dealing with the in-situ conservation of biodiversity: see (12.40)).

activities that reflect Australia's development as a nation, for example, Admiralty House, Beecroft Peninsula and Cockatoo Island Industrial Conservation Area (http:// www.environment.gov.au/topics/heritage/heritage-places/commonwealth-heritage-list).

See Chapter 7 for a detailed discussion of assessment and approval processes relating to matters of national environmental significance, and exemptions from these processes.

The provisions in the EPBC Act dealing with the assessment, listing, emergency l_isti~g and delisting of Commonwealth Heritage places are virtually identical to those underpmmng the National Heritage List, discussed above (ss 34 lA- 34 lR}.

While Commonwealth bodies are bound by these provisions, the legislation goes on to impose a more general obligation on them. They must not take actions that have any adverse impact, regardless of how significant it is, on the National Heritage values of a National Heritage place unless there are no feasible and prudent alternatives and all reasonable mitigation measures are taken (s 34 lZC).

Management plans for Notional Heritage places [17.81 0] The Minister only has to make management plans to protect the national heritage

values of places on the National Heritage List if they are located in Commonwealth areas (s 324S(1)). Plans must not be inconsistent with the National Heritage management principles (ss 3245(4)(6), 324Y; reg 10.0lE and Schedule 5B) and must address matters spelt out in the Regulations (reg 10.0lC and Schedule 5A). The management principles include the use of best available knowledge, community involvement and technical and community input into decisions. The Minister must give notice of any proposed changes to management plans including the making, amendment, revocation and replacement of any plan (s 324S(2)). Plans must be made as soon as practicable and are to be reviewed at least every 5 years in relation to consistency with National Heritage management principles and effectiveness (s 324W). They are binding on Commonwealth bodies (s 324U). When a plan is not in force, Commonwealth bodies must still take all reasonable steps to ensure that their acts are not inconsistent with the National Heritage management principles (s 3240(2)). Where a place on the National Heritage List is not located in a Commonwealth area, legislation simply provides that the Commonwealth "must use its best endeavours" to see that a management plan which is not inconsistent with the National Heritage management principles is prepared and implemented in cooperation with the NSW government (s 324X), perhaps offering financial or other assistance as an inducement (s 324ZB).

The Commonwealth Heritage List [17.820] The EPBC Act also provides for a Commonwealth Heritage List (s 341C), which, for present purposes, covers places on Commonwealth land that the Minister is satisfied have Commonwealth Heritage value because they meet at least one of the Commonwealth Heritage criteria spelt out in the Regulations (s 341D; reg 10.03A) and must be entirely in a Commonwealth area or is owned or leased by the Commonwealth or a Commonwealth Authority (s 341C). Whereas to be listed on the National Heritage List, a place must have outstanding heritage value to the nation for one of a number of reasons, to be listed on the Commonwealth Heritage List, it must simply have significant value (reg 10.03A). The AHC may prepare a list of places to be assessed and call for public comment (ss 341JA, 341JB, 341JC, 341JF). This includes places connected to defence, communications and other government

Regulatory consequences of Commonwealth Heritage listing [17.830] Actions carried out by anybody on Commonwealth land _that are likely to have a

significant impact on the environment are prohibited unless they are first assessed and apprnved by the Commonwealth or they are otherwise exempted. So too ar_e act10ns taken outside of Commonwealth land that have a significant impact on the land's environment (ss 26 - 27 A) and actions taken by Commonwealth agencies that are likely to have a significant _impact on the environment (s 28) (see (7.320]). "Environment" is defined to include the hentage values of places (s 528). In addition, Commonwealth agencies must not take actions that have any adverse impact, regardless of how significant it is, on the Commonwealth Her'.tage values of a Commo_nwe~lth Heritage place unless there are no feasible and prudent alternatives and all reasonable mitigat10n measures are taken (s 341ZC) .

Strategies and management plans for Commonwealth Heritage places [17.840] Each Commonwealth agency must prepare a written heritage strate~y for managing

places under its control so as to protect and conserve their Commonwealth Hentage va~ue_s. The agency must provide a copy of the strategy to the Minister as soo~ as practicable (and withm two years) after the agency first owns or controls a place. In preparmg a strate~, the agency must take into account any advice received from the AHC. The strategy must be reviewed at least once every 3 years and a report prepared for the Minister (s 341ZA; regs 10.03E, 10.03F and Schedule 7C). The strategy must set out a timetable for carrying out a program to !dentify ~he Commonwealth Heritage values of places owned or controlled by it, producing a register settmg out these ".'alues for each place and reporting to the Minister (ss 341ZA, 341ZB). The strategy also _provides a timetable for the completion of management plans for each Commonwealth Hentage place (s 341S(l}) . Plans must not be inconsistent with the Commonwealth Heritage management principles (ss 3415(4)(6), 341 Y; reg 10.03D and Schedule 7B). Public submissions must be ~oug~t and considered before a plan is made (reg 10.03C), as well as the Minister's advice, m consultation with the AHC (s 341S( 6) ). But this is simply advice to be considered, and while the agency can seek the Minister's endorsement of the final plan, it is not required to ~o so (s ~4!T). At the same time, however, agencies have a duty to take all reasonable steps to assist the Mimst~r and the AHC to identify, assess and monitor the Commonwealth Heritage values of a place that it owns or controls (s 341Z). Commonwealth bodies must not contravene management plans. When no manage~ent pla~ is in place, they must take all reasonable steps to ensure that their acts are not inconsiS t ent with Commonwealth Heritage management principles (s 341 V).

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Plans must be reviewed at least every 5 years (s 34 lX).

Register of the National Estate [17.850] The Register of the National Estate was originally established under the Australian

Heritage Commission Act 1975 (Cth), which was repealed in 2003. The Australian Heritage Council Act 2003 (Cth) provides that the AHC continues to keep the Register (s 21), including all existing listings, along with any new listings (s 22(5) ), even after the National and Commonwealth heritage provisions of the EPBC Act (see above) came into operation in 2004. However, the Register was frozen on 19 February 2007 (s 24AA) and ceased to exist as a legislative list on 19 February 2012. Up to then, the Minister considered information contained in the Register when making decisions under the EPBC Act (for example, listing on the National Heritage List or Commonwealth Heritage List) (EPBC Act, s 391A). More than 13,000 places had been entered on the Register by the time of its handover to the AHC. Many of these places have now been incorporated into the heritage protection provisions in environmental planning instruments or the NSW Heritage Act, discussed earlier in this chapter, while some others have been included in the National Heritage List and the Commonwealth List (see http://www.environment.gov.au/heritage/places/rne/index.html). The theory now is that that each level of government should be responsible for protecting heritage at the appropriate level: local, State or national.

Sydney Harbour Federation Trust [17.860] The Sydney Harbour Federation Trust (the Trust) was established on 20 September 2001 pursuant to section 5 of the Sydney Harbour Federation Trust Act 2001 (Cth) primarily to manage, and to maximise public access to (s 6) former former defence sites around Sydney Harbour. These sites include Cockatoo Island, North Head Sanctuary, Headland Park, Chowder Bay, Woolwich Dock and Parklands, Macquarie Lightstation, Marine Biological Station, Snapper Island and HMAS Platypus (ss 3, 6; Schedules 1, 2).

The Objects of the Trust are set under section 6 of the Sydney Harbour Federation Trust Act 2001 and are as follows:

• to ensure that management of Trust land contributes to enhancing the amenity of the Sydney Harbour region • to protect, conserve and interpret the environmental and heritage values of Trust land • to maximise public access to Trust land • to establish and manage suitable Trust land as a park on behalf of the Commonwealth as the national government • to cooperate with other Commonwealth bodies that have a connection with any Harbour land in managing that land • to cooperate with New South Wales, affected councils and the community in furthering the above objects.

(17.890]

chapter 1 7 Heritage conservation

The Trust comprises eight members, including two members recommended by the NSW and someone G OV ernment ' an elected member of a local council in which Trust land is located, h d" . f h representing the interests of indigenous people (ss 3, 10 - 12). It is subject tot e irecuon o t e Minister (s 9). The Trust is responsible for preparing draft management plans complying with principles of ecologically sustainable development, after first inviting publi~ comment (s 28(2)). Draft pla_ns are placed on public exhibition before being finalised by the Mmister (ss 26 - 36A). Commumty advisory committees must be appointed (ss 57 - 57A). Commonwealth bodies must act in accordance with plans in carrying out their activities (s 3~). NSW planning, land use, building, environmental protection and heritage law does not apply m Trust areas (s 71).

Protect ion of moveable cultural heritage [17.870] Movable cultural heritage is protected in Austra~ia, under the ~rotection of Movable

Cultural Heritage Act 1986 (Cth), administered by the Office of the Arts, m the ~ommonw~alth Department of Prime Minister and Cabinet. This Act defines _movable cultur~l heritage as ob1_ects of importance to Australia, or a particular part of Australia, for ethnological, arch_aeolog1cal, historical, literary, artistic, scientific or technological reasons. These ob1ects must fall mto one or more of the categories set out in section 7, including: objects recovered from the soil, inland waters, coastal sea, or above the continental shelf of

• Australia • objects relating to indigenous inhabitants of Australia and the Torres Strait Islands • military objects • objects of decorative or fine art • books, records, documents or photographs. Export of items

_

[17.880] The Act provides for the control of exports and imports _of mova~le cultural heri~age.

The National Cultural Heritage Control List consists of categories of ob1ects that constitute movable cultural heritage of Australia and are accordingly subject to export control (s 8). Objects in various categories, including Australian Aboriginal _and To:res Strait Islan~~r items, archaeological items, natural science items and fine or decorative_ art items, are classified mto Class A and Class B objects (Protection of Moveable Cultural Heritage Regulations 1987 (Cth), reg 4 and Schedule 1). Class A objects are not to be exported from Australia unless a certificate of exemption is obtained from the Minister for the Arts under section 12 (ss 8(2)(a), 9). Class B objects, are not to be exported without a certificate under section 12 or a permit granted under sections 10 or l0A (ss 8(2)(6), 9). Class A objects [17.890] Examples of class A objects are: Victoria Cross medals awarded to Australian Defence Force service personnel

•

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[17.900)

• pieces of the suit of metal armour worn by Ned Kelly at the siege of Glenrowan in Victoria in 1880 • Aboriginal and Torres Strait Islander objects including sacred and secret ritual objects, human remains, and rock art.

Class B objects [17.900] Examples of class B objects are:

• objects relating to exploration • archaeological objects relating to: • •

- convict transportation - settlement objects of fine or decorative art including: - Aboriginal or Torres Strait Islander fine or decorative art - jewellery or paintings.

[17.940)

chapter 1 7 Heritage conservation

Exporting fossils [17.930] In The Queen v Edward Vaughan (unreported, Supreme Court of Western

Australia, Court of Criminal Appeal, 18 September 1998), Vaughan faced charges connected with the export of fossils. In April 1997, he was convicted of one count of conspiring to export Australian protected objects, and pleaded guilty to four counts of knowingly exporting Australian protected objects and one count of knowingly attempting to export Australian protected objects. Vaughan was sentenced to a three year suspended sentence of imprisonment and penalties and fines totalling $50,000. Vaughan appealed the conviction on the conspiracy count and the Crown appealed against the leniency of the sentences on all counts. The court allowed the appeal against Vaughan's conviction on the conspiracy count and ordered a retrial. The Crown appeal, however, was unsuccessful.

objects of documentary heritage including: - sound recordings - film, television or video production - photographs.

Historic shipwrecks (17.940] Legislation dealing with the conservation of historic shipwrecks in NSW (including

Import of objects protected by foreign countries

articles associated with shipwrecks: Heritage Act, ss 47, 138) can be complex.

~17.910] In addition to prohibiting the export of protected objects, the Act prohibits unlawful

Where they are located in NSW coastal waters, shipwrecks are protected by the provisions in the Heritage Act (NSW) relating to relics (s 138: see [17.440)) .

'.mports o_f protected objec~s of foreign countries which have been illegally exported. Objects imported m breach of a foreign country' s laws relating to cultural property are liable to forfeiture a_nd offenders are liable to a ~aximum penalty of a $100,000 fine and imprisonment for up to five years or both (s 14). Foreign cultural objects that have been loaned to Australian institutions are protected under the Protection of Cultural Objects on Loan Act 2013 (Cth).

Case studies: Protection of moveable cultural heritage Selling a painting to a foreign buyer [17.920] ~ _Waterhouse v Minister for Arts (1993) 43 FCR 175, the applicant had

sold a pamtm~ protected under the Protection of Movable Cultural Heritage Act 1986 to a ~oreign buyer for $1,760,000. He then applied to the Minister for a permit under section 10 to enable the painting to be exported to the purchaser. The Minister refused and the applicant sought review of that decision by the Administrative Appeal~ Tribunal, ~lleging that the decision amounted to an acquisition of property otherwise than on Just terms, in contravention of the guarantee in section 51(xxxi) of the Constitution . On referral on questions of law, the full Federal Court held that the Minister's refusal to grant the permit did not constitute an acquisition of property.

Shipwrecks can also be made subject to interim heritage orders or listed on the State Heritage Register. But where this has not been done (s 51(2)), shipwrecks and associated articles can be protected, whatever their age, by a historic shipwrecks protection order under the Heritage Act, made by the Minister on the advice of the Heritage Council (ss 47, 48, 50). Once an order has been made it must be recorded in the Register of Shipwrecks kept by the Heritage Council (s 49). It is an offence to damage or remove a historic shipwreck or associated article without either a historic shipwrecks permit (ss 51(1), 139(5)) or an excavation permit (s 51(3)). Diving on shipwrecks is allowed providing it does not cause damage. These provisions relating to historic shipwrecks protection orders do not, however, apply to NSW coastal waters to which Commonwealth legislation, the Historic Shipwrecks A ct 1976 (Cth), applies (s 52). The NSW Government has consented to the application of the Commonwealth legislation in "waters adjacent to the coast" of NSW (Historic Shipwrecks Act 1976, s 2(3)), and this includes the three nautical mile territorial sea (s 2(1); see [19.lO0]). The result is that the provisions in the Heritage Act relating to historic shipwrecks protection orders essentially operate only in relation to rivers, lakes, harbours and bays in NSW. Under the Historic Shipwrecks Act 197 6, the Commonwealth Environment Minister has made a general declaration that all remains of ships (including those not yet discovered) at least 75 years old (s 4A(l)) are "historic shipwrecks". Articles associated with the remains of such a ship, and ship's articles that entered the water over 75 years ago (including those not yet discovered) can be declared to be historic relics (s 4A(6)). This includes remains of ships and articles that have been removed from waters covered by the legislation (ss 4A(3) - (5), (8) - (9)).

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[17.950]

[17.990]

chapter 1 7 Heritage conservation

The Commo~:"ealth Minister can also proceed on a case by case basis, making declarations in relation to spec1f1c shipwrecks a~~ articles where they are believed to be historically significant, regard~ess of t~e1r_ ~ge (s 5) . Prov1s10nal declarations can be made where there is some doubt as to thelf h1stonc s1gmficance (s 6). These last for up to five years, but they can be renewed (s 6(5)).

might be affected (s 89(3)(c)). With reference to orders under the LG Act in respect to items of environmental heritage, a local council cannot give an order until after it has considered its impact on heritage items (s 142).

D~t~ils of ~eclarations can be found in the Register of Historic Shipwrecks, which is O en for public mspect10n (s 12). p

Conveyancing Act 1919 (NSW]

It ~s a criminal offence to interfere with or dispose of a historic shipwreck or relic without a permit (for exampl~, allowi,ng ex~loration/recovery), punishable by a maximum penalty of $10,000 and up to five years 1mpnsonment ($50,000 for corporations (ss 13, 15)). In addition, protected zones of u~ to 200 hec~ares c~n-~e declared around historic shipwrecks and relics (s 7). In th~se areas, _P?tentially da_mag~ng a~t1v1t1es are prohibited without a permit, including mooring of ships and dmng (s 14; Historic Shipwrecks Regulations 1978 (Cth), reg 4).

[17.980] Restrictive or positive covenants may be included on the title to land to protect heritage under the Conveyancing Act 1919 (NSW). The Crown or any public or local authority may impose conditions on the use of the land under its control (s 88D), or on land that is not vested in it with the consent of person with a legal interest in the land (s 88E). Covenants can include requirements to maintain, repair or insure structures or work on the land. Other covenants include conditions of performance or failures to perform those conditions in some circumstances.

Overseas Places of Historic Significance to Australia [17.950] The Minister for the Environment maintains a List of Overseas Places of H" t · S" "f IS OflC

1gm 1cance to Austra~ia. These are essentially symbolic listings. Before an item of this list is changed to add a new item or remove an item, consultation by the Minister must be undertaken with the Mi~is~er for Foreign P..ffairs and any other relevant Minister (ss 390K, 390M, EPBC Act). T~e Mm1ster may enter m~o ~ conservation agreement with persons who have a legal mterest m tha~ place to promote b10~1vers1ty, world heritage and Commonwealth heritage values. Agreeme~ts bmd the parties ~nd thelf successors in title to that interest. Financial, technical and other assistance may be provided to persons undertaking obligations under the agreement.

Other legislation protecting heritage [17.960] As ?u~li_ned a~ove at [17.970)-(17.990] other statutory bodies have responsibilities under other s1gmf1Cant pieces of legislation including:

• the Local Government Act 1993 (NSW) • the Conveyancing Act 1919 (NSW) • the National Parks and Wildlife Act 1974 (NSW).

Local Gove rnment Act 1993 [NSW] [17.970] L~cal government ~as a significant and expanding role in protecting natural and cultural hentage. Loc~l_councils hold ~o~munity land on trust for the public. Management plans must be prepared defmmg the use, ob1ect1ves, conditions and development controls with respect to the l~nd (ss 35, 36, Local Government Act 1993 (LG Act); Local Government (General) Regulations 20?5 (NSW): Pt~' Div 5; Pt 4_; Pt 9, Div 2). Applications for use of community land must ~e determm~d _by councils on the basis of compatibility with the public interest (s 89(2)). In assessmg the publIC mterest, proposed use must be considered in relation to heritage items which

An application may be made to the Supreme Court of NSW for injunctions to enforce or restrain the breach of a covenant and for an order for damages (s 88H). If a covenant made under the Real Property Act 1900 (NSW) is breached, the public authority administering the covenant may make an application for appropriation of the land (s 881).

National Parks and Wildlife Act 1974 (NSW] [17.990] The New South Wales Office of Environment and Heritage (OEH) is a division of the NSW Government Department of Planning and Environment. OEH is responsible for protection and conservation of the environment of NSW including items of natural and cultural heritage and reports to the Department of Planning and Environment. The OEH is an agency of the NSW Government and includes a number of independent bodies and committees.

The NSW National Parks and Wildlife Service (the NPWS) was established under the National Parks and Wildlife Act 1974 (NSW) (NPW Act) and protects heritage through the acquisition of land or under a conservation agreement. The National Parks and Wildlife Advisory Council and the Aboriginal Cultural Heritage Advisory Committee advise the Minister and the DirectorGeneral of National Parks and Wildlife (the Director-General) about the administration of the NPW Act (Pt 1, Div 4). The National Parks and Wildlife Service (NPWS) manages more than 850 protected areas of over 7 million hectares (8% of land area of NSW). These areas include national parks, nature reserves, historic sites, state conservation areas, regional parks and karst conservation reserves. Management of these areas involves a wide range of responsibilities and may be subject to a plan of management over the land (Pt 5). The Director-General prepares the management plans for public exhibition and consultation with advisory councils where necessary and submits them to the Minister for approval and adoption which gives effect to the plans (ss 73A, 73B). The Plans specify the permitted uses and developments permitted to encourage that activity (s 72AA(6). Interim protection orders may be made by the Minister under ss 91A and 91B of the NPW Act to protect land of natural, scientific or cultural significance. The orders must be kept in a register and be available for public inspection (s 911). The owner of the land affected by the operation of the interim protection order may appeal under s 91H of the NPW Act to the Land and Environment Court against the issuing of the order. The Court may consider hardship to the owner caused by the issue of the order.

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'Stop work' orders may be made to preserve protected native fauna and flora, Aboriginal heritage or other items of cultural heritage under the NPW Act (s 91AA). An appeal may be made against the stop work orders (s 91AA(6) - penalties accrue daily). Conservation agreements may be entered into between the Minister and parties with interests in heritage items on private land and leased Crown land (s 69B). A registered conservation agreement runs with the land and may be registered on the title and is enforceable against successors in title of the owner who entered the agreement (s 69E).

18 Mining Thomas Kwok James Innes

[~::!~l

Introduction_-········:···································································.·.·.·.·.:·.·.·.·.·.:·.·.·.·.·.·.:·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.:·.·.·.·.·.·.·.·.·.·.·.·.·.:·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·. Minerals leg1slatmn •··················································· [18.130] Approvals under the Mi~ing ~ct •········:··············································································.·.::·.·.·.:·.:·.·.·.·.·.:::·.·.·.·.:·.·.·.·.·.· [ 18.240] Where exploration or mmmg is restr~cted ................................................................... 8.430] Interaction with the planni.n~ le~islat1on •································································:::::::::::::::::::::::::::::::::: [~ . 8 5401 Public and landholder part1C1pation ····:······································································· [ 8.620] 1 Agency involvement in decision-making··································································································. [18.670] Compensating landholders•····························································································································· [18 710] Mine Subsidence Compensation•············:·················:·······_-··········································································· :730] 18 Non-mining development in mine subsidence d1stncts .................................................................... [ 18.75 0

•

l

Protection of the Environment ······················································································································· [ l 8.84 Offences and enforcement................................................... [l8.930]

Judicial processes under the Mining Act································································.·.·.··.·.·.·.·.·.·_-.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·_-.·.·.·. 18.950] Exploration and productmn of onshore petroleum............................................ . [ 1090 · l eg1s · lat·10 n ......................................................... ......................................... [18. 1150]l Petroleum and the p l anmng

. .

................. [18. 18.1240]

Offshore exploration an d mmmg ························:································ ··························.................... Offshore petroleum exploratmn and product10n ............................................. · · d l f ·1·t1·es .............................................. 1 Uranium mmmg an ........................................................................ nuc ear ao ····································:::::::::::::::::: .............................................. Extractive 1ndustnes .

[

[18. 127 0 l [18.1280]

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Introduction

[18.50]

chapter 18 Mining

as "dimension stone" which can be any rock (other than sandstone) that is "quarried in blocks or slabs for building, decorative or other purposes. "

The contribution of mining to the economy [18.1 OJ Mineral exploration and production is a major contributor to the economy in NSW.

Apart from_ the profits deri_ved by companies in selling minerals, the State benefits financially from royalties payable by mmers to the State. In the 2013-2014 financial year, royalty revenues in NSW totalled $1 .32 billion. Coal accounted for 9 3 % of this total. (NSW Department of Industry, see http://www.resourcesandenergy.nsw.gov.au/miners-and-explorers/enforcement/royalties).

Scope of this chapter [18.20] _This chapter dea!s primarily with the Mining Act 1992 (NSW) (Mining Act), as the explo_rati?n and _productron of minerals, in particular coal, remains the most significant contnbutron to mmerals activity in NSW. While there has been a significant amount of onshore petroleum exploration over the past 20 years, production of petroleum is still limited.

The emergence of petroleum as a prominent issue for both communities and Government however, requires. some treatment of the Petroleum (Onshore) Act 1991. There is currently n~ explor_atron for mmerals or petroleum in the offshore areas of NSW. As such, this Chapter will only give a broad overview of the offshore minerals regimes. This Chapter provides limited consideration to mine subsidence, uranium exploration and the control of extractive industries. Other legislative regimes, particularly under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and the Protection of the Environment Operations Act 1997 (NSW), also play a key part in the regulation of mining and petroleum projects in NSW. In this Chap~er, "Minister " refers to the Minister administering the mining legislation, currently the Mmister for Industry, Resources and Energy. At the time of publication the "Department" refers to the Department of Industry, Skills and Regional Development.' The Department's Division of Resources and Energy is responsible for matters relating to mining and petroleum.

Basic concepts in mining law What are minerals? [18.30] While the _"l_'ord "mineral" has a particular meaning in the field of geology, for the purposes of the Mmmg Act, a "mineral" is "any substance prescribed by the regulations as a mineral for the purposes of this definition, and includes coal and oil shale, but does not include petroleum". The Mining Regulation 2010 (NSW) (Mining Regulation) then prescribes a large number o~ substances as "minerals" (cl 5, Sch 1). The coverage is broad, including not only obvrous mmerals suc_h as coal, g?ld, _silver and copper, but also less common materials like peat, limestone and sapphrre. The legislative regime even creates a classification of "mineral" known

Who owns minerals? [18.40] The question of what a mineral is for the purposes of the Mining Act is distinct from the question of who owns an actual mineral resource. Minerals are generally owned by the State (the Crown), but not always. In some circumstances they are owned by the landowner. The Mining Act regulates the mining of minerals, regardless of who owns them, but does not regulate the ownership of minerals. Ownership depends on what minerals were reserved to the Crown, and therefore not transferred to private ownership, in the original grant or sale of land under relevant Crown lands legislation. The current list of minerals reserved to the Crown is found in Schedule 2 of the Crown Lands Regulation 2006 (see also Crown Lands Act 1989, ss 3(1), 171(1)). This list has been amended many times since 1884, and so reference to the land title is necessary to determine the ownership of particular minerals within any individual parcel of land.

The Mining Act treats the mining of privately owned minerals somewhat differently from publicly owned minerals, with an impact on how much royalty needs to be paid to the Government (see [18.220] for a discussion of privately owned minerals). Given this, ascertaining whether minerals are privately or publically owned can be a critical task, although it is not always simple. In the case of Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195; [2010] HCA 27, the High Court found that a 1688 Act from the reign of William and Mary of Orange had the effect that copper in certain land at Orange was conveyed into private ownership by New South Wales Crown grants in the mid-19th century. Under the Aboriginal Land Rights Act 1983, any transfer of lands to an Aboriginal Land Council under section 36 of that Act includes the transfer of the mineral resources or other natural resources contained in those lands, with exclusions for gold, silver, coal, petroleum and uranium.

Who owns coa l? [18.50] The history of coal ownership in NSW is long and convoluted. Most coal in NSW is now owned by the Crown, whether or not it was reserved in the original sale or grant of land. The Coal Acquisition Act 1981 provided that all privately owned coal would pass into Crown ownership, subject to the payment of compensation (Coal Acquisition Act 1981, ss 5, 6). The Coal Ownership (Restitution) Act 1990 then allowed those who had previously owned coal to apply to have their rights restored following the repayment of any compensation already received.

In 1997, the legislation was amended further to make it clear that the Minister could refuse to grant claims to have ownership rights restored, in particular where there would be a significant loss of revenues (that is, royalties) to the Crown (Coal Ownership (Restitution) Act 1990, s 7(1A)). Further, rights to coal that had been restored could be compulsorily re-vested in the Crown on payment of compensation, provided that this was done before the end of 1998 (Coal Acquisition Act 1981, s SA, now repealed).

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The payment of compensation to private owners of coal was administered by the Coal Compensation Board. The Coal Compensation Board closed at the end of 2007, having completed its task. In November 2007, the Coal Acquisition Legislation Repeal Act 2007 was passed to repeal legislation relating to the acquisition and restitution of coal ownership rights, including the Coal Acquisition Act 1981. At the time of writing, the Coal Acquisition Legislation Repeal Act 2007 had not fully commenced to achieve its full effect. As a result, the Coal Acquisition Act 1981 is still in force, including provisions allowing the Government to secure rights to coal granted under the Coal Ownership (Restitution) Act 1990 "by contract or other arrangement" (Coal Acquisition Act 1981, s SB).

[18.100)

chapter 18 Mining

Minerals legislation Key legislation [18.90] As is the case for all complex development, understanding the way in which mining projects are regulated m NSW requires an appreciation of a range of legislation and their

interaction. Four primary pieces of legislation, together with supporting regulations, regulate the exploration and production of minerals and petroleum in the onshore and offshore parts of the State. They are the:

What is exploration or prospecting?

1.

Mining Act 1992

[18.60] The Mining Act does not use the term "mineral exploration". Instead, the relevant term

2.

Petroleum (Onshore) Act 1991

in the Act is "prospecting", which the Act defines to mean "to carry out works on, or to remove samples from, land for the purpose of testing the mineral bearing qualities of the land."

3.

Offshore Minerals Act 1999

4.

Petroleum (Offshore) Act 1982.

As stated above, this Chapter will focus primarily on the Mining Act.

What is mining? [18.70] The Mining Act defines the word "mine" as follows:

• •

(noun) - any place, pit, shaft, drive, level or other excavation, drift, gutter, lead, vein, lode, reef or salt-pan (whether occurring naturally or artificially created) in, on or by means of which, any mining operation is carried on (verb) - to extract material from land for the purpose of recovering minerals from the material so extracted or to rehabilitate land (other than a derelict mine site) from which material has been extracted, but does not include any activity declared not to be mining by a regulation under section 1 lA of the Mining Act or by an order made under such a regulation.

Clause 13 of the Mining Regulation describes activities on three specific projects and sites taken not to be mining. Clause 13 also declares that the recovery of certain salts from evaporation basins is not mining, subject to the Secretary of the Department being notified before recovery.

What are extractive industries? [18.80] As indicated above, the Mining Act is only concerned with the regulation of activities involving "minerals", which excludes substances which are not reserved as minerals under the Mining Act. The Standard Instrument Principal Local Environmental Plan (and the environmental planning instruments that are based on it) define "extractive materials" to mean "sand, soil, gravel, rock or similar substances" that are not minerals under the Mining Act. Operations to obtain "extractive materials" are known under planning law as "extractive industries", but they are more commonly known as "quarries". Regulation of extractive industries is discussed at [18.1280].

Changes to the Mining Act Mining Amendment Act 2008 [18.100] The Mining Amendment Act 2008 was assented to in May 2008 following an extensive

period of development commencing in 2002, including the release of the then Department of Primary Industries' Position Paper: Proposals for Amendment to the Mining Act in June 2005 for public comment. A key focus of the Mining Amendment Act 2008 was to amend the environmental management provisions in the Act which had not been updated since 1992. According to the NSW Government, the key aims of the Mining Amendment Act 2008 were:

• to incorporate the principles of ecologically sustainable development within the Mining Act through a new objects clause • to broaden the definition of the "environment" to identify all potential impacts of activities • to strengthen certain environmental management conditions by making them statutory requirements • to strengthen enforcement provisions of the Mining Act • to streamline the administration of mining in NSW and to reduce unnecessary red tape.

Only a few provisions which did not require preparation of new regulations were commenced at an early date (1 August 2008). The commencement of the great majority of the Mining Amendment Act 2008 was delayed pending preparation of new regulations, which in turn were absorbed into a complete review of the Mining Regulation 2003. This led to the exhibition of the proposed revised Mining Regulation in mid-2010, and gazettal of the final version of the Regulation and simultaneous commencement of most of the amendments to the Mining Act on 15 November 2010. Various amendments remain uncommenced.

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Recent changes [18.110] Since 2010, there have been a range of amendments to the Mining Act. Some key

amendments, in summary, are as follows:

•

• • • • • •

•

• •

the Mining and Petroleum Legislation Amendment (Land Access) Act 2010 narrowed the definition of landholder to prevent any obligation to agree to an access arrangement for exploration with a "secondary landholder" (eg mortgagees, and easement holders) and allowed multiple access arrangements with different landholders the Petroleum (Onshore) Amendment (Royalties and Penalties) Act 2012 significantly increased penalties for various offences under the mining and petroleum regimes, including: mining or prospecting without an authorisation, unauthorised carrying out of mining purposes, stealing minerals, fraudulent removal and concealment of minerals, breaches of direction, failure to pay royalty, obstruction, and contravening conditions the Mining Legislation Amendment (Uranium Exploration) Act 2012 removed the long-standing ban on uranium exploration in NSW (examined more closely at [18.1270])

Other legislation (18.120] Exploration or mining is subject to many other statutory controls in addition to those

under the Mining Act. For example:

• either Part 4 (including State Significant Development under Part 4.1) or Part 5 of the EPA Act will apply (see Chapters 5 and 6) • environment protection licences may be required under the Protection of the Environment Operations Act 1997 (see [9.670]) • where there is deliberate or incidental interception or taking of water from a river, aquifer

•

the State Revenue and Other Legislation Amendment (Budget Measures) Act 2012 introduced an annual rental fee and administrative levy, and a statutory regime governing security deposits the Miscellaneous Acts Amendment (Directors' Liability) Act 2012 made amendments to a number of Acts, including the Mining Act: "to implement nationally consistent and principles-based reforms to the legislation governing the criminal responsibility of directors and officers for corporate offences." (Second Reading Speech, Miscellaneous Acts Amendment (Directors' Liability) Bill 2012) the Mining Amendment (Development Consent) Act 2013 amended section 65 of the Mining Act to ensure that a development consent permitting mining purposes can be an "appropriate" development consent for the grant of a mining lease for minerals the Mining and Petroleum Legislation Amendment (Public Interest) Act 2013 introduced a broad power to refuse to grant, renew, transfer, or tender mining rights, and to cancel, suspend or restrict mining rights, based on the "public interest". The public interest basis for making these decisions was replaced with a "fit and proper person" basis by the Mining and Petroleum Legislation Amendment Act 2014. These changes also applied to the Petroleum (Onshore) Act 1991 the Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 was a response to findings by the Independent Commission Against Corruption "that the grant of the relevant licences, and the decisions and processes that culminated in the grant of the relevant licences, were tainted by serious corruption." (Mining Act, Schedule 6A, clause 3). The amendments enacted under this Act cancelled Exploration Licences 7270, 7405 and 7406 and any associated applications, including those under the planning regime the State Revenue and Other Legislation Amendment (Budget Measures) Act 2014 made amendments to the principal minerals legislation allowing royalties to be assessed and recovered by the Chief Commissioner of State Revenue as taxes the Mining Amendment (Small-Scale Title Compensation) Act 2014 introduced a new landholder compensation system for small scale titles.

chapter 18 Mining

[18.130)

or other water source, approvals are required under the Water Management Act 2000 or the Water Act 1912 (see [14.1150], [18 .1340]). Under the Water Management Act 2000, the taking of water from an aquifer in the course of carrying out mining, or any other activity prescribed by the regulations, falls within the definition of an "aquifer interference activity" (see s 4, Dictionary of the Water Management Act 2000) the threatened species, heritage, Aboriginal heritage continues and similar regimes, under the Threatened Species Conservation Act 1995, the Native Vegetation Act 2003 and the National Parks and Wildlife Act 1974 also continue to apply, subject to Part 4.1 of the EPA Act which provides exemptions from certain requirements where a project is approved as State Significant Development (see s 89J of the EPA Act). We note that the NSW Government is currently considering the 18 December 2014 report of the Independent Biodiversity Legislation Review Panel which recommends the repeal of these statutory regimes and their embodiment in a new "Biodiversity Conservation Act".

Approvals under the Mining Act General considerations (18.130] The primary object of the Mining Act is "to encourage and facilitate the discovery and

development of mineral resources in New South Wales, having regard to the need to encourage ecologically sustainable development" (s 3A). The key "gateway" into the world of mineral exploration and production is through the approval system administered under the Mining Act. There are five primary approvals under the Mining Act, which are commonly known as "titles". Three of these titles carry only the right to prospect. They are: 1.

exploration licences

2.

assessment leases

3.

opal prospecting licences.

The other two types of title carry the right to mine as well as to prospect. They are: 1.

mining leases

2.

mineral claims.

The word "authority" is used in the Act to cover the three principal forms of title: exploration licences, assessment leases and mining leases. All large-scale exploration and mining is conducted under these forms of title. Since 2004, the term "small-scale title" has been used to cover the two

833

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[18.140)

minor titles: mineral claims and opal prospecting licences. Since 2010, the Act has used the term "authorisation" to cover all five forms of title, together with minor permits to enter land to conduct environmental assessments. Colloquially, it is common to refer to authorisations as " titles". Under the Mining Act, an appropriate title must be obtained before anyone can prospect for or mine (s 5) . This means that a landowner needs Government approval under the Act to prospect or mine on their own land. Fossicking is permitted, within certain constraints (s 12; cl 12: see [18 .230]) . The Government can generally grant prospecting and mmmg titles without landholders' agreement, allowing both Crown land and privately owned land to be explored or mined by those who do not own it (ss 24(1), 42(1), 68(1), 191(1); Sch 1, cl 14). Akey reason for this is that publicly owned minerals have been reserved as the property of the Crown, rather than the landowner, and so the Crown retains the right to control their discovery and development. However, compensation is payable to landholders for damage to the land caused by prospecting and mining operations, as well as for loss of possession and use of surface land (see [18.670] in relation to compensating landholders). Any person may apply to prospect for or mine privately owned minerals, as well as publicly owned ones. Privately owned minerals are discussed at [18.220].

Exploration licences [18.140] Exploration licences, covering the surface and/or the subsoil (s 24(3) ), give the holder an exclusive right to conduct authorised prospecting operations on land for a specified group or groups of minerals, but no other rights (s 29(1)). Exploration licences for publicly owned minerals can be granted and renewed for periods of up to five years (ss 27, 114(3)).

In most circumstances, an application for the grant of an exploration licence can be made at any time by any person (s 13(1); cl 14). Where land has been set aside as a "mineral allocation area" for particular minerals or groups of minerals (s 368), however, applications can only be made with the Minister's consent (s 13(3)), or by tender (s 14). A mineral allocation area exists for coal throughout NSW. Allocation areas for other minerals are declared from time to time. . Because an assessment lease or mining lease cannot be granted over an existing exploration licence for the same mineral without the consent of the licence holder (ss 37(1)(a), 58(1)(a)), an exploration licence effectively gives its holder an ex;clusive right to apply for an assessment lease or a mining lease for any minerals in the area covered by the licence. There is no guarantee that holders of exploration licences who have spent time and money exploring for minerals will be granted a mining lease: this lies within the Minister's discretion (s 63(1)), although this discretion is constrained in some situations by section 89K of the EPA Act which provides that the Minister cannot refuse to grant a mining lease once planning approval has been granted for a mining project under the "State Significant Development" provisions of the EPA Act. When renewed, exploration licences can only cover 50% of the area which the licence previously covered, unless "special circumstances" exist.

[18.160)

chapter 18 Mining

Case study: Exploration licences and that ICAC report on corruption in the management of coal resources [18.150] The grant of exploration licences came under heavy scrutiny as a result of the investigations of the NSW Independent Commission Against Corruption (ICAC) into:

• •

the 2008 decision by the then Minister for Primary Industries and Minister for Mineral Resources to open a mining area in the Bylong Valley for coal exploration (this investigation was known as "Operation Jasper") the circumstances surrounding an invitation to Doyles Creek Pty Ltd to apply for an exploration licence and the allocation of an exploration licence (this investigation was known as "Operation Acacia").

The report of the Reducing the opportunities and incentives for corruption in the state's management of coal resources (ICAC Report) in October 2013 commented on a range of issues, including the unfettered nature of the Minister's discretion under section 13 of the Mining Act when deciding whether or not to allow applications in mineral allocation areas (ICAC Report, p 13). As a result of its findings in each of these Operations, the ICAC made 26 recommendations to reduce opportunities and incentives for corruption in the NSW Government's management of coal resources. The NSW Government supported all of ICAC's recommendations (Government Response to the Independent Commission Against Corruption's report on Reducing the opportunities and incentives for corruption in the State's management of coal resources, tabled in NSW Parliament, 21 November 2013). Many of the recommendations apply specifically to the circumstances surrounding the allocation and grant of exploration licences including:

• • • •

using the "auction" method as the default method of allocating exploration licences instead of directly allocating exploration licences to explorers without competitive bidding except in justifiable circumstances (Recommendation 10) having the NSW Treasury take over responsibility for the technical design and oversight of the auction processes for the allocation of exploration licences (Recommendation 13) having an assessment panel conduct technical and financial analysis of preferred companies to determine whether they have the technical expertise and funding capacity to carry out exploration works (Recommendations 16 and 17) replacing the current arrangements for exploration licences in mature coal allocation areas with a system of exploration licence tenure for which exponentially increasing rents are payable (Recommendation 18).

[18.1 60] The recommendations referred to above were all directed towards ensuring that exploration licences are granted to entities that will in fact carry out exploration works for the proper recovery of the State's mineral resources - instead of treating their exploration licences primarily as financial commodities to be held unused and sold when market conditions are at their most beneficial.

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Recommendation 18, as mentioned above, is a clear demonstration of this objective, as it seeks to provide a clear financial disincentive to title holders "banking" their exploration licences without carrying out exploration works. If explorers do not carry out their projects in a timely manner, they will be in breach of their exploration licence conditions, which could jeopardise the prospective grant of a mining title over the relevant land. The Mining and Petroleum Legislation Amendment (Grant of Coal and Petroleum Prospecting Titles) Bill 2015, introduced into Parliament in October 2015, aims to "offer greater transparency and restore confidence in the New South Wales coal and gas exploration sectors through the use of strategic release and competitive allocation of exploration licences." (Second Reading Speech, 15 October 2015). Under the proposed framework, an exploration licence for a "controlled release mineral" within a "controlled release area" can only granted through a competitive process following an invitation for applications from the Minister. The Bill, which addresses Recommendation 10 noted above, proposes that coal would become a "controlled release mineral" across the whole State. Most of the other recommendations made by the ICAC in relation to corruption prevention relate to probity requirements for members of parliament and public servants, and are not of direct relevance to the granting of exploration licences.

Assessment leases [1 8.170) A note to section 4 7 of the Mining Act states that assessment leases are:

designed to allow retention of rights over an area in which a significant mineral deposit has been identified, if mining the deposit is not commercially viable in the short term but there is a reasonable prospect that it will be in the longer term. The holder is allowed to continue prospecting operations and to recover minerals in the course of assessing the viability of commercial mining. Like exploration licences, assessment leases can cover the surface and/or the subsoil (s 42(3)) and only carry the right to conduct authorised prospecting operations (s 47(1)). They free explorers from the greater commitment to exploration expenditure required under an exploration licence. It is up to those holding exploration licences to decide whether to apply directly for a mining lease, which will involve greater financial expense and consultation, or to delay development and apply for an assessment lease as a "holding pattern". In practice, few assessment leases are granted. Assessment leases can be granted and renewed for periods of up to five years (ss 45, 114(3)). As for an exploration licence, the holder of an assessment lease effectively has the exclusive right to apply for a mining lease over the area, because a mining lease cannot be granted without the consent of the holder of an underlying assessment lease (s 58(1)(6)). Assessment leases are not subject to the 50% minimum relinquishment requirement upon renewal. The amendments proposed under the Mining and Petroleum Legislation Amendment (Grant of Coal and Petroleum Prospecting Titles) Bill 2015, if passed, would also apply to applications for assessment leases for "controlled release minerals" where the applicant does not hold a title for the application area .

(18.190)

chapter 18 Mining

Mining leases [18.180) Mining leases are the principal form of title under the Mining Act by which a person can obtain the right to mine. Mining leases only allow the mining of minerals specified in the lease instrument (s 51(4)). Mining leaseholders also have the right:

• •

to carry out primary treatment operations designed to separate out minerals, such as crushing, sizing, grading, washing and leaching (s 73(1)(6)) to carry out mining purposes (s 73(l)(c)).

Mining leases also give the right to conduct authorised prospecting operations (s 73(1)(a)). The right to prospect is required throughout a mine's life because of the continuing need to test for the shape and grade of ore bodies and find extensions to them. A mining lease can be granted or renewed for periods of up to 21 years, or even longer with the concurrence of the Premier (ss 71, 114(3)). Mining leases can be granted over the surface and/or the subsoil (s 68(3)), but even where the lease is restricted to the sub-surface, the leaseholder can conduct authorised prospecting operations and a range of mining purposes on the surface of the land with the consent of the landholder and the holder of any authority or mineral claim over the surface (s 81(1)).

• • •

An application for a mining lease in a mineral allocation area (see [18 .140]) can only be made:

by persons already holding an exploration licence or assessment lease (s 51(3)) with the consent of the Minister (s 51(3)) by participating in a tender process, if one is called (s 52).

What are mining purposes? [18.190) "Mining purposes" are developments and act1v1t1es that are ancillary to mmmg operations, specified in the regulations. They include (cl 7) : construction, maintenance and use (in connection with mining operations) of buildings, mining plant, roads, railways, reservoirs, dams, cables, conveyors, pipelines and plant nurseries removal, stockpiling, management or depositing of overburden, ore or tailings

•

• • •

generation and transmission of electricity and storage of fuel construction, maintenance and use of drill holes and shafts for drainage of gas or water, ventilation, conveyance of electricity, water or materials.

Mining leases can be granted solely in relation to mining purposes (ss 51(4)(a), 73(1A)), as long as these are to be carried out in connection with and in the immediate vicinity of a mining lease or mineral claim (s 63(5)). Prior to 2010, there was no requirement under the Act for a title to be held in order to conduct mining purposes. This was changed with the commencement of the Mining Amendment Act 2008, which established that most environmentally intrusive mining purposes (including removal, stockpiling or depositing of overburden, ore or tailings; opal puddling; a~d the construction, maintenance or use of a reservoir, dam or tailings dam), can now not be earned out except in accordance with a title (ss 6(1), (3)).

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(18.230)

chapter 18 Mining

Mineral claims

Special provisions for privately owned minerals

[18.200] Mineral claims are small-scale titles that permit both mining and prospecting. Mineral claims can only be granted over areas of the surface and/or the subsoil (s 191(2)) not greater than two hectares (s 180(1)). They are granted by the Secretary of the Department, rather than the Minister (s 190(1)). They can be granted or renewed for periods of up to five years (ss 193, 199A) and can be confined to mining purposes (ss 178(2)(6), 195(1A)). Landholders must be notified by the applicant for the claim and can object on the grounds that the land is agricultural land (ss 177,179: see [18.370]).

[18.220] The Mining Act treats minerals owned by landowners somewhat differently to publicly owned minerals. Only since 2010 has there been a requirement to obtain a title to prospect for or mine privately owned minerals under the Act (s 5), other than in the case of coal, where such requirements were of long standing.

Holders of mineral claims have the right (s 195):

• to prospect for and mine specified minerals (except coal) (s 180(4)) • to erect any buildings and structures • to carry out mining purposes (which include opal puddling) (cl 7) • to remove timber, stone and gravel. Before 2010, mineral claims could be granted anywhere in the State, but since the commencement of the Mining Amendment Act 2008, they can only be granted within "mineral claims districts" (s 180(2)). The Governor may, on the advice of the Minister, constitute land as a mineral claims district (s 173(1)). Before this happens, the Minister must first notify the local council and any other Government bodies that would be materially affected (s 174 ). A Ministerial order published in the Government Gazette can establish general conditions applying to all mineral claims granted within a district (s 175). The objective is to facilitate the granting of standardised titles in these areas and to enable rapid processing of applications. Two mineral claims districts have been established under this provision, around the key opal mining localities of Lightning Ridge and White Cliffs. The great majority of the thousands of mineral claims in existence at the commencement of the Mining Amendment Act 2008 were in these two districts (primarily at Lightning Ridge).

The Mining Amendment Act 2008 introduced new forms of authority which now must be obtained to prospect for or mine privately owned minerals. These new authorities can be considered as species of exploration licences, assessment leases and mining leases. They are called: 1.

exploration (mineral owner) licence

2.

assessment (mineral owner) lease

3.

mining (mineral owner) lease.

They can only be granted to the owner of privately owned minerals (ss 24(4), 42(4), 68(4)). No royalty is payable on privately owned minerals recovered under mineral owner authorities (ss 26(2)(a), 44(2)(a), 284(3)). Exploration (mineral owner) licences and assessment (mineral owner) leases may only be granted for periods of two years (ss 27(b)(i), 45(b)(i)). Commercial mining companies are able to prospect for or mine privately owned minerals under the standard forms of authority (ie, exploration licences, assessment leases and mining leases). However, they are liable to pay royalty, 7/8 of which goes to the mineral owner (s 284(2)). Mineral owners may also apply for the standard forms of authority, rather than mineral owner authorities, if they so desire (ss 13(1), (2), 33(1), (2), 51(1), (2)).

Fossicking Opal prospe cting licences [18.210] An opal prospecting licence is a small-scale, short-term title that gives the holder the exclusive right to prospect for opals on an "opal prospecting block" (s 232(1)). Opal prospecting blocks are sections of larger areas of Crown land that have been constituted as "opal prospecting areas" by the Minister (ss 220,224). An opal prospecting area can include occupied Crown land, although the landholders retain certain rights:

• to be notified that the land is proposed to become an opal prospecting area (s 221) • to object to its establishment on the grounds that the land is agricultural land (s 222(1)(a)) • to object on the grounds that the land is within certain distances of a dwelling house,

garden, woolshed, shearing shed, watering place or other improvements (s 222(1)(6); cl 49). "Special conditions" may be gazetted by the Minister to apply to all opal prospecting licences within an opal prospecting area (s 223A)). Opal prospecting licences are granted by the Secretary of the Department, rather than the Minister (s 228(1)). The term of an opal prospecting licence must not exceed five years (s 225(1)(a)(v)), but is usually much shorter, typically three months. Only the holder of an opal prospecting licence may apply for a mineral claim within that block (s 232(4)).

[18.210] Fossicking used to require a licence under the Mining Act 1973, but this is no longer the case (s 12(1)). Fossickers will usually need the consent of private landholders to avoid trespass (s 12(2)(6)), as well as the consent of anyone who already has a prospecting or mining title over the land (s 12(4)). The Minister can, however, set up fossicking districts (s 369A), where fossicking can be carried out without the consent of exploration licence holders (s 12(5)). No other rights of either landholders or titleholders are lost if a fossicking district is constituted. Certain restrictions apply to fossicking activities (Mining Regulation, cl 12). Fossickers must only use hand held implements. They must stockpile soil, rock or other material they have disturbed during the course of fossicking and then replace it in order to "reconstruct the original soil profile" (cl 12(1), (2)(a)) . In addition, they must not (cl 12(2)):

• • • •

use power-operated equipment or explosives excavate or clear land subject to native title damage or remove bushrock exceed certain limits on the amount of minerals, gold or gemstones that can be removed in any 48 hour period.

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Fossickers must also abide by any other legislation that prohibits, regulates or restricts fossicking (s 12(2)(a)). Fossicking is listed as development permissible without consent under the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (Mining SEPP) (cl 6(a)).

Where exploration or mining is restricted

(18.290]

chapter 18 Mining

Wilderness areas [18.270] While the Wilderness Act 1987 (see [4.260]) does not specifically prohibit prospecting or mining, wilderness areas are to be managed in accordance with particular principles (s 9), which seem to fully preclude both prospecting and mining. Wildness area management principles specifically cite the restoration and protection of the unmodified state of the area and its plant and animal communities, and the preservation of the capacity of the area to evolve in the absence of significant human interference. Existing interests are preserved, but there is no provision for their renewal (s 8(5)). Most wilderness areas are located within national parks.

Protected areas Notional porks, nature reserves and similar reserves [18.240] Under the National Parks and Wildlife Act 1974 (NPW Act), it is generally unlawful, unless authorised by special legislation, to prospect or mine for minerals (including petroleum) in:

• national parks • historic sites • regional parks • nature reserves • karst conservation reserves • Aboriginal areas.

The four primary pieces of mining legislation (see [18.90]) do not apply within these areas (NPW Act, ss 41(1), 41(2), 47ZA, 54, 580, 64). There are two exceptions to this general position: 1.

previously existing mining interests

2.

prospecting on behalf of the government.

Previously existing mining interests [18.250] Prospecting and mining interests in existence when the land is reserved under the National Parks and Wildlife Act 1974 remain valid, and can be renewed (NPW Act ss 39, 41(3), 47ZA, 54, 58, 580, 58S, 64). However, the Minister does have the power to cancel authorities and mineral claims where land is required for a public purpose (Mining Act, ss 125(1)(e), 203(1)(f)). If authorities or claims are cancelled, compensation is only payable for mining improvements (Mining Act, ss 127(2), 205(2), Dictionary).

State conservation areas [18.280] In 2001, the NPW Act was amended to replace the previous category of "State recreation area" with the new category of "State conservation area". State conservation areas must be managed in accordance with principles generally similar to those for national parks, but also allowing for other uses permitted under the NPW Act, including prospecting and mining (NPW Act, ss 30G(2)(c), 4 7J). Land cannot be reserved as a State conservation area without the agreement of the Minister administering the Mining Act (s 30D( d) ).

Subject to the specific provisions set out in the NPW Act, the four primary pieces of mining legislation all apply within State conservation areas (s 4 7J(2) ). All mining and prospecting titles existing when land is reserved as a State conservation area remain valid, and can be renewed without the approval of the Minister administering the NPW Act (s 47H(4)). However, that Minister must give concurrence before a new mining lease is granted, extended or renewed (ss 47H(3), (4)). The Minister must give such matters "the fullest examination" (s 186(1)). New exploration licences or assessment leases can be granted, extended or renewed without the direct involvement of the Minister administering the NPW Act (ss 47J(l), (4)). }-Iowever, because State conservation areas are "reserved lands", an additional consent from the Minister administering the Mining Act is required before undertaking prospecting operations. This consent cannot be given without the approval of the Minister administering the NPW Act (s 47J(7)). This means that the Minister administering the NPW Act has control over all new prospecting and mining operations within State conservation areas. Mineral claims cannot be granted in a State conservation area (s 4 7J( 6) ), which would also seem to prevent the constitution of a mineral claims district, even though this is not expressly prohibited under the Mining Act (Mining Act, s 173(2)(c)).

Prospecting on behalf of the Government [18.260] Prospecting for minerals " on behalf of the Government" is permitted in all of these areas, but only with the prior approval of the Minister administering the NPW Act (NPW Act ss 41(4); 47ZA; 54, 580; 64). The approval can be issued only after "the fullest examination" (NPW Acts 186(1)). Notice of that Minister' s approval must also first be given to both Houses of Parliament and either House can then disallow the approval (NPW Act ss 41(5); 47ZA; 54,580; 64). No such approval has ever been sought or given.

Marine parks and aquatic reserves [18.290] It is unlawful to prospect or mine for minerals in a marine park or an aquatic reserve (Marine Estate Management Act 2014, s 54(1)). There is protection from these provisions for prospecting or mining interests existing as at 1 August 1997 in marine parks and as at 31 March 2002 in aquatic reserves. No renewal or extension of such prospecting or mining interests is permitted without express authorization by an Act of Parliament (s 54(3)).

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(18.300)

State forests and flora reserves [18.300] In general, the Mining Act and the Petroleum (Onshore) Act 1991 apply within State

forests and flora reserves dedicated under the Forestry Act 2012 (Forestry Act). However, these areas must be dealt with under the Mining Act as "reserved lands" (Forestry Act, s 35). Conditions and restrictions can be prescribed that limit the exercise of rights under the mining legislation in those areas (s 35). The Minister administering the Forestry Act may also exclude any part of a State forest or flora reserve from the mining legislation, if the Minister administering the Mining Act agrees (s 35(3)).

Exempted areas [18.310] The Mining Act defines "exempted areas" as (among other things) land "reserved,

dedicated, appropriated, resumed or acquired for public purposes" (Dictionary). Significant types of reserved lands include:

• State forests and flora reserves reserved under the Forestry Act • State conservation areas reserved under the NPW Act • land acquired by the Minister administering the NPW Act but not yet reserved under tbat Act (NPW Act, ss 145, 146) • Crown land reserved under the Crown Lands Act 1989 (such as travelling stock routes) • road reserves reserved under the Roads Act 1993. Rights under exploration licences and assessment leases cannot be exercised in exempted areas except with the consent of the Minister administering the Mining Act. A mineral claims may not be granted over an exempted area except with the consent of the body in control of that area (Mining Act, s 181). Reserved land cannot be included within an opal prospecting area (s 223(1)(c)).

Conservation agreements [18.320] Over the past 20 years or so, a variety of voluntary conservation agreements have evolved to establish and maintain conservation management of freehold and leasehold land. These include:

• conservation agreements under the NPW Act (see [12.1610)) • property vegetation plans under the Native Vegetation Act 2003 (see [2.140)) • property management plans and biobanking agreements under the Threatened Species Conservation Act 1995 (TSC Act) (see [12.1200)) • trust agreements under the Nature Conservation Trust Act 2001 (see [12.1630)).

The Mining Act provides only limited specific protection for these so-called "soft" conservation areas. The clearest example is in the case of a biobank site, whereby the Minister must notify the Minister administering the TSC Act if any authority, mineral claim or opal prospecting licence is granted over a biobank site (TSC Acts 381A).

(18.340)

c hapter 18 Mining

However, the Mining Act also gives a broad variety of rights to landholders and the definition of "landholder" in the Act's Dictionary is very broad. Since June 2010, the definition has specifically included a "Minister or public authority having an interest in the land under a conservation, natural heritage or biobanking agreement", so long as that person is identified in a register or record kept by the Registrar-General as a person having an interest in the land (Mining Act, Dictionary). Consequently, Ministers and heads of agencies who are party to such agreements must be treated by prospectors and miners as landholders for the purposes of the Mining Act. This means, for example, that access arrangements must be negotiated or arbitrated before prospecting operations can be undertaken under prospecting titles. These parties are also able to obtain compensation for any "compensable loss" in respect of the land under Part 13 of the Act. Although these provisions do not prevent prospecting or mining taking place on these classes of land, notification between agencies (in the case of s 381A) or negotiations between an explorer and both the primary landholder and the Government party or parties holding "an interest in the land" are likely to lead to lengthy discussions, with possible restrictions on prospecting or mining operations.

Strategic agricultural land [18.330] As explained in more detail below in considering the Mining SEPP (see [18.440)) certain types of mining development are subject to the "gateway assessment process". This process could have the effect of further conditioning a proposed mining operation or preventing that proposed mining operation from being carried out.

Put briefly, the gateway assessment process, established as part of a suite of reforms relating to the NSW Strategic Regional Land Use Policies, restricts the carrying out of new mining on or near:

• •

"biophysical strategic agricultural land", or BSAL as it is commonly known, that is, land that has been scientifically determined to be high value agricultural land, or "critical industry cluster land", being land in the Upper Hunter where the mining sensitive equine and viticulture industries are carried out.

Affected mining proposals must obtain a "gateway certificate" from the Mining and Petroleum Gateway Panel before lodging a development application. The Mining and Petroleum Gateway Panel may either grant a gateway certificate (with or without conditions) or not grant a gateway certificate, in which case planning approval for the relevant mining project cannot be applied for, let alone obtained.

Residences, agricultural land and land subject to improvements [18.340] Mining leases and mineral claims cannot be granted over the surface of land subject to

some forms of private occupation or use, except with the owner's consent. This includes (ss 62(1), 62(2), 188(1), 188(2)):

843

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[18.350]

• land within 200 m of an occupied house that is a principal place of residence (in which case, the consent of the occupant is also necessary) • land within 50 m of a garden • land on which any significant improvement is situated (see below). There are also dispute resolution procedures for determining the application of sections 62(1) and 188(1) (ss 62(6A), 188(5)).

Significant improvements [18.350] In 2008, the Court of Appeal in Ulan Coal Mines v Minister for Mineral Resources

[18.390]

chapter 18 Mining

Mineral claims cannot be granted over agricultural land (ss 179, 187).

Prospecting titles [18.380] Landholders have much less protection in relation to exploration licences and assessment leases. For example, there is no power of veto over the grant of these titles. However, rights under them cannot be exercised on land subject to the same forms of private occupation or use as restrict the grant of mining titles, except with the consent of (ss 31, 49):

• •

the owner and occupant of a dwelling-house the owner of a garden or significant improvement.

(2008) 161 LGERA 391; [2008] NSWCA 174 called into question the Department's practice of relying on the process in Schedule 1, ell 23A and 23B (as it then was) as the sole forum for determining if an improvement on land triggered the prohibitions in section 62.

Where a landholder objects, opal prospecting areas cannot be declared over agricultural land (ss 222(1)(a), 223(1)(d)).

Following that decision, the Mining Amendment (Improvements on Land) Act 2008 was enacted. It introduced the definition of "significant improvement" to reflect the fact that works or structures must be both substantial and valuable to qualify as an improvement which can prevent mining. A "significant improvement" is "any substantial building, dam, reservoir, contour bank, graded bank, levee, water disposal area, soil conservation work or other valuable work or structure." This definition was designed to reflect the position in the earlier Court of Appeal decision in Kayuga Coal Pty Ltd v Ducey [2000] NSWCA 54. Further, the Act amended section 62 to make the prohibition against granting a mining lease over a "significant improvement" directly linked to the process in Schedule 1, cl 23A.

Access arrangements for prospecting titles

Underground mining [18.360] A landowner cannot veto an underground mining title, but the Minister cannot grant a

mining lease (nor the Secretary grant a mineral claim) except at such depths and under such conditions as will minimise damage to the surface (ss 62(7), 188(6)).

Agricultural land [18.370] Landholders can also object to the proposed grant of mining leases on the grounds that

the land is "agricultural land" (Sch 1, ell 22, 23; ss 52(4), 63(4)). Note that this applies to all landholders (as defined), not merely owners of land (Dictionary).

[18.390] The holders of exploration licences and assessment leases can only carry out prospecting operations in accordance with individual access arrangements that have been agreed with each affected landholder (s 140). These are commonly based on voluntary negotiations between the titleholder and individual landholders, using a standard form (s 141(1A)).

If a landholder and titleholder cannot come to agreement over the terms of an access arrangement with 28 days, then the titleholder may seek to have the matter determined by an arbitrator (ss 143, 144). If either party is unhappy with the arbitrator ' s determination, they may apply to the Land and Environment Court (LEC) to have it reviewed (s 155). Access arrangements can deal with such things as (s 141(1)):

• the kinds of prospecting operations to be carried out • time periods during which the titleholder can access the land • conditions to be observed by the titleholder when prospecting in or on the land • compensation to be paid to the landholder as a consequence of the titleholder carrying out prospecting operations on the land. It is also important to note that arrangements must be reached with all landholders. The Mining Act has a very broad definition of "landholder", and it is clear that there may be more than one landholder for any particular parcel of land, including native title holders (Dictionary).

If an objection is received, the Secretary must determine whether the land fits the Mining Act's definition of agricultural land (Sch 1, cl 22(5), Sch 2). This definition is quite broad, and includes both cultivated land and improved pasture. If, following an objection, land is determined to be "agricultural land" then a lease may generally not be granted over it except with the landholder's consent (Sch 1, cl 23(1)) . By way of exception (Schedule 1, cll 23(3), (4)):

The Mining Act was amended in June 2010 to provide for two classes of landholders for the purposes of determining access arrangements (paras (g) and (gl) of the definition, Dictionary). The key effect of the amendment was to define entities such as registered mortgagees and holders of easements and rights of way as " secondary landholders" and to exclude them from the Act's requirement for holders of prospecting titles to enter into access arrangements.

a sub-surface mining lease can be granted if the activity is to be at depths and under conditions to minimise damage to the surface

The amendments followed a successful challenge in the Supreme Court by two rural property owners to access arrangements determined by the Mining Warden over their properties, which were affected by exploration by a BHP Billiton subsidiary for its Caroona Coal Project on the Liverpool Plains (Brown v Coal Mines Australia Pty Ltd (2010) 76 NSWLR 473; [2010] NSWSC

• •

a mining lease can be granted over the surface of agricultural land to give access to other land.

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143) . Secondary landholders remain eligible for compensation for any compensable loss caused by exploration or similar activities (ss 242B, 255A, 262,269,271, 383C). Because access arrangements are not transferred when land changes hands (s 158(3)), new landholders ordinarily become entitled to a fresh access arrangement. Landholders' reasonable legal costs associated with obtaining "initial advice" about entering into access arrangements are recoverable from the titleholder (s 141 (2A) ).

Improving the land access arbitration framework [18.400] On 15 April 2014, the NSW Government commissioned Bret Walker SC to undertake

an independent review of land access arbitration processes relating to exploration under the Mining Act 1992 and the Petroleum (Onshore) Act 1991 (Walker Review). Mr Walker' s June . 2014 report, Examination of the Land Access Arbitration Framework - Mining Act and Petroleum (Onshore) Act 1991, made 31 recommendations to improve the arbitration land access framework. These recommendations included:

•

overhauling the composition of the existing Arbitration Panel, from which arbitrators are appointed, with the objective of having appropriately qualified, unbiased and transparently appointed arbitrators (Recommendations 1 to 12) including: - increasing the number of Arbitration Panel members from five to ten; - new eligibility criteria for arbitrators - requiring arbitrators to publicly disclose their employment and financial dealings

• separating the mediation of land access disputes from the more formal arbitration process (Recommendation 13) • imposing a legal requirement that parties negotiating and arbitrating a land access arrangement do so in good faith (Recommendation 15) • securing a right to legal representation in the arbitration process - a significant reform given previous decisions of arbitrators to exclude legal representatives (Recommendation 16) • faster and more certain procedures for decision making regarding "significant improvements" under Schedule 1 of the Mining Act, (see above) including:

•

- special expedition of Land and Environment Court determinations of whether an improvement is a "significant improvement" for the purposes of the Mining Act (Recommendation 20) - giving the NSW Government the power to declare what does and what does not constitute a "significant development" (Recommendation 22) - prohibiting landholders from unreasonably withholding their consent in relation to "significant improvements" (Recommendation 23)

chapter 18 Mining

(18.430]

The NSW Government accepted all 31 recommendations, making a formal response to_ the Walker Review in August 2014, setting out its proposed response to each of the recommendations and the proposed timing of each of those responses. The NSW Government is in the proces~ of progressively implementing the recommended changes by administrative means where possible and by legislative amendment where necessary. The Mining and Petroleum Legislation Amendment (Land Access Arbitration) ~ill 2015, introduced into Parliament in October 2015, seeks to address these recommendat10ns. The Second Readings Speech for the Bill described the main features of the Bill as follows: Key amendments to the arbitration framework . to imple~ent . the Wal~e~ recommendations include: an obligation on both parties to negotia:e m good faith, establishing a requirement and process for mediation as a first step _m resolvmg l~nd access disputes; providing a framework for payment of costs. of d1sp_ute resolut10n; clarifying the definition of significant improvements, to assist parties negot~atmg arrangements; and establishing a more robust and transparent framework for appomtmg an arbitration panel.

Mining reserves [18.41 o] The Governor can constitute mining reserves restricting the grant of:

• exploration licences • assessment leases • mining leases • mineral claims (s 367(2). If an application for a title is made, whether before or after the reserve was created, the application has no effect within the area of the reserve (s 367(4)).

Land subject to other exploration or mining titles [18.420] Generally speaking, if land is subject to a prospecting_or °:ining title (or an applicatio~

for such a title), no authorities, mineral claims, or opal prospectmg l~cences can be granted over it except with the written consent of the existing titleholder or applicant (ss 19(1), 37(1), 58(1), 183(1), 223(1)).

Interaction with the planning legislation

requiring titleholders to pay: - costs incurred by landholders (up to a capped maximum) in obtaining legal advice and, where necessary, expert opinions, as part of the negotiation and arbitration of access arrangements (Recommendation 25) - the legal costs of landholders who reasonably exercise their right of appeal to the Land and Environment Court in relation to the making of access arrangements (Recommendation 30).

Introduction · ·

most existing mining leases . were protected from the general operations of the EPA Act or any environmental planmng th instrument (see Chapters 3, 5 and 6). Under sections 74(1), 110(2) and Schedule 6, clause 8 _of e Mining Act, as then in force, the holder of a mining lease could not be prevented from carrymg on [18.430] Prior to 2005, proposals for new or expan d ed mmmg on

847

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[18.440)

mining operations within the area of the lease while it had effect, subject to limited exceptions regarding the erection of buildings, the opening of roads and the subdivision of land. These longstanding exemptions were removed in 2005, with the passage of the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005. Key features of these reforms included the introduction of Part 3A of the EPA Act and the associated State Environmental Planning Policy (Major Development) 2005. This program of reform was completed with the introduction of the Mining SEPP in 2007. The removal of the exemptions for existing mines from the coverage of the EPA Act was phased in over a five-year period. The intention was that, after 16 December 2010, all mining taking place in NSW must be in accordance with development consent under Part 4 or project approval under Part 3A (before its repeal), or else fall within the continuing use or existing use provisions of Division 10 of Part 4 of the EPA Act (see [5.420]) . A number of coal mines were not able to obtain the necessary planning approval by that date. Consequently, transitional provisions in the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) continued the effect of the repealed s 74 of the Mining Act until 31 December 2011, but only for mines for which Secretary's requirements under Part 3A for new mining project approvals had already been issued (EPA Regulation, cl 8K). This basic framework was not disturbed by the repeal of Part 3A of the EPA Act and its key supporting provisions in the Major Development SEPP and their replacement with the State Significant Development provisions in Part 4 of the EPA Act and the State Environmental Planning Policy (State and Regional Development) 2011 (State and Regional Development SEPP) respectively (see [3.460)).

The Mining SEPP [18.440] The aims of the Mining SEPP are:

•

to provide for the proper management and development of mineral, petroleum and extractive material resources for the purpose of promoting the social and economic welfare of the State

• to facilitate the orderly and economic use and development of land containing mineral, petroleum and extractive material resources • to promote the development of significant mineral resources • to establish appropriate planning controls to encourage ecologically sustainable •

development through the environmental assessment, and sustainable management, of development of mineral, petroleum and extractive material resources to establish a gateway assessment process for mining and petroleum (oil and gas) development: -

to to to to

recognize the importance of agricultural resources ensure the protection of strategic agricultural land and water resources ensure a balanced use of land by potentially competing industries provide for the sustainable growth of mining, petroleum and agricultural industries.

The Mining SEPP has three main functions:

1.

2.

3.

849

chapter 18 Mining -- -

[18.450)

. the ermissibility of mining and exploration, petroleum production a_nd regulat~ng. p. ermittin certain low impact categories of development at mme e~tracnve mduhstnehs,dand p d and ~oilet/shower facilities) to be carried out as exempt or sites (such as t e s e s, roa s complying development . . . thorities must take into account m determmmg an setting out matters that cons~nt au 1 d development (such as the significance of the application for consent for mm~ng re ate resource and its economic benefits) . . . . g and petroleum development on strategic agricultural land m accordance regu 1atmg mmm with the gateway assessment process.

Permissibility of development fort h e purpos Mining SEPP

es of mining under the

. 1 ermissible without consent (cl 6), development [18.450] The Mining SEPP hsts deve o~mendt pd 1 t (ell 9 9A and Sch 1), exempt ermissible with consent (cl 7), proh1b1te eve opmen , ~evelopment (cll 10 and 10A) and complying development (cl 11)._ Development permissible without consent (cll 6(a} - (e)) compnses:

• fossicking (see [18.230]) • mineral and petroleum exploration (see [18.950]) . . d . 1claim within a mineral claims district (see [18.200]) • mmmg un er a mmera • Government rehabilitation of abandoned mine sites (see [18 .750]) . . . ollution control works under a pollution control hce~ce_ issue? • construct10n and use of p . 0 . A t 1997 applying to an ex1stmg mme, under the Protection of the Environmen_t _perations c petroleum production facility or extractive mdustry. . . . . . PP which list development permissible with consent (cl 7) are The prov1s10ns of the_ ~mmg SE . he Minin SEPP has effect throughout the entire State very powerful from a mmmg perspective. T d . g_ be carried out on any land with . 1 ) (cl 4) Undergroun mmmg may . (includmg coasta waters . . . . 1 d. t mining) petroleum product10n or A f f mmmg (me u mg open cu , consent (cl 7(1) (a )) . ny orm ~ .h any land where agriculture or industry extractive industry may be earned out wit consent on . . d out with or without consent (ell 7(1)(6)(1), 7(2)(a), 7(3)(a)). may a 1so b e carne . d . d m 1 in development for approved mmes, approve Similarly, the lists of exempt an co p g . . d t ·es (ell 10 10A and 11) provide petroleum production facilities and approve extr~cnve m r~ h . , for a range of low impact developments to be earned out on an t at.

J

ut

• is on the site of an approved .mine d by cl 10(1)(6} for exempt development w1thm . . • i·snot (with. a narrow except10n ma e . ·r ,, a state ) 1·th1·n an "environmentally sensitive area of State s1gm icance . conservat10n area w

.

•

1 1 ns (LEPs) and former reg1ona

1

The Mining SEPP overrides all local env1~onm_ent:o i~s ~azettal but is subject to the State environmental plans (REPs) and most SEPPs ma e ~nor l W. tlands ~nd SEPP 26 - Littoral and Regional Development SEPP, SEPP 14 oasta e Rainforests (cl 5) (see [14.370]). h . . h.b. . . LEPs have no effect where t ey are Because of this overndmg effect, pro i iuo~s- m . . t nt with the Mining SEPP inconsistent with clause 7. However, LEP proh1b1t1ons not mcons1s e continue to have effect.

85 0

The Environmental Law Handbook [18.460]

The Mining SEPP also contains a brief list of Iocati·ons wh ·h - - d · ere e1t er open cut · · extractive m ustnes are prohibited (Sch 1) The tw h mmmg or . · o areas w ere ope t · · · . . are the majonty of Lake Macquarie local Govern t (LGA) n ~u mmmg is proh1b1ted men area and smce M 2010 h of the coa I exploration licences held by the Bickh C C : ay , t e area . am oa I ompany m the U H sh· L_GA. Extract1ve industries are prohibited, since Ma 2010 w· . pper unter Ire Fields sand quarry proposal, in Gosford City LGA. y ' ithm the area of the Somersby

Matters for consideration under the Mining SEPP [18.460] Part 3 of the Mining SEPP lists matters that mu . development applications for mining t I d _st be taken mto account in respect of ' pe ro eum pro uct10n and e t . . d d evelopment applications for other dev I . h. x ract1ve m ustries and for undeveloped State or regionally sig .f. e opment wit m the vicinity of either these industries or m Kant resources (cl 13).

Cla~se 12AA of the Mining SEPP was introduced in Novemb . authonty to consider the significance of th h . er 2013 and reqmred a consent e resource t e subiect of a dev I 1· . an d t h e economic benefits of developing th (b h e opment app icat10n e resource ot to the State and th . . h t h e d eve Iopment is proposed to be carried ) Th· I . e reg10n m w ich ·· out • 1s c ause was the sub t f · ·f· cnt1cism, not least because of its subcl (4) h. h . Jee o s1gm Kant public . ause , w IC reqmres that: [1]n determining whether to grant consent to the ro . .. of the resource is to be the consent th . , p . p~sed development, the s1gmf1Cance [3]. au onty s pnnc1pal consideration under this Part On 7 July 2015, the NSW Government ublicl h.b. d . clause 12AA of the Mining SEPP Cl i2AA y ex J ite a draft mstrument for the repeal of . ause was repealed on 2 September 2015.

The gateway assessment process under the Mining SEPP [18.470] On 4 October 2013 the EPA Reg 1 t.

' u a 10n was amended by the E · I an dA ssessment Amendment (Gatew p nvironmenta1 P anning which, along with the parallel amend':e:rot::~f%~t~atef;/~ricul~ural Land) Regulation 2013, gateway assessment process for minin and e 17mg p msertmg Part 4AA, established the land. g petro eum development on strategic agricultural The gateway assessment process applies t " .. cl 17A of the Mining SEPP to include Stat s· o .f_mmmDg or petroleum development"' defined by e igm Kant evelopment for th f . . petroIeum, but only if a mining lease o d . I . e purposes o mmmg or development to be carried out Put a rtphro uct10nS ease _is required to be granted to allow the · no er way tate Significant D J f petroleum that is to be carried out "th· h' b . eve opment or mining or wi m t e oundanes of a · · · · pro d uct10n lease is not "mining or pet I d I n ex1stmg mmmg lease or ro eum eve opment" f h assessment process. or t e purposes of the gateway

If development is "mining or petroleum development" and is proposed to b . d land that either: e carne out on

• ?pears o_n the Mi~ing SEPP's "Strategic Agricultural Land Map", or • is the subiect of a site verification certificate then cl 50A of the EPA Regulation requires that the develo . . or petroleum development" be a ccompame . db pment apphcat10n for that "mining y:

(18.470]

chapter 18 Mining

• a current gateway certificate, or • for land that is not shown as critical industry cluster land, either: - a current gateway certificate, or - a site verification certificate certifying that the relevant land is not biophysical strategic agricultural land. The objective of these provisions is to ensure that all new "mining or petroleum development" on either critical industry cluster land or biophysical strategic agricultural land has a gateway certificate before the development application proceeds to assessment by a consent authority. A site verification certificate is intended to establish whether land shown on the Mining SEPP's "Strategic Agricultural Land Map" is in fact biophysical strategic land. Another way of looking at this is as a "two tiered sieve": 1.

if land does not appear on the "Strategic Agricultural Land Map" it does not require a gateway certificate

2.

if land does appear on the "Strategic Agricultural Land Map", a gateway certificate will be required if the land is critical industry cluster land or if a site verification certificate concludes that the land meets the criteria of biophysical strategic agricultural land.

The circumstances in which a site verification certificate can be obtained are set out at Division 3 of Part 4AA of the Mining SEPP. An Interim Protocol for site verification and mapping of biophysical strategic agricultural land has been in place since April 2013, which sets out the criteria against which land is measured to determine whether it is biophysical strategic agricultural land.

If a gateway certificate must be obtained to allow a development application for "mining or petroleum development" to be made, the application for a gateway certificate can only be obtained from the Gateway Panel by the person who proposes to carry out the proposed "mining or petroleum development" (cl 17F of the Mining SEPP). If the application for a gateway certificate is for development on biophysical strategic agricultural land, the Gateway Panel must refer the application to the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (established by the Commonwealth under the provisions of the Environmental Protection and Biodiversity Conservation Act 1999) for advice regarding the impact of the proposed development on water sources (cl 17G(l)(a)). The Gateway Panel must determine an application for a gateway certificate by either issuing an unconditional gateway certificate (if the development meets all of the "relevant criteria") or a conditional gateway certificate (if the development does not meet the "relevant criteria") (cl 17H). The Gateway Panel cannot refuse an application for a gateway certificate unless the applicant for the certificate fails to provide information requested by the Gateway Panel within 30 days of such a request (cl 17](3)). The "relevant criteria" that a gateway certificate must apply to a proposed "mining or petroleum development" vary, depending on whether the relevant land the subject of the gateway certificate is biophysical strategic agricultural land or critical industry cluster land. For biophysical strategic agricultural land, the "relevant criteria" is that the proposed development will not significantly reduce the agricultural productivity of any biophysical strategic agricultural land, based on a consideration of (cl 17H(4)(a)):

• impacts on the land through surface area disturbance and subsidence

851

chapter 18 Mining

852

(18.480)

The Env ironmental Law Handbook

• impacts on . . . soil fertility' effective rooting depth or soi.1d ramage • ormcreases . roe k outcrop sl . ·f· m land surface micro-relief' so"l i sa1.mtty, d f s1gm icant changes to soil pH ' ope an sur ace rockiness • any impacts on highly productive groundwater

•

•

any fragmentation of agricultural land uses any reduction in the area of biophysical strategic agricultural land.

For critical. industry cluster land ' the " re Ievant cntena" . . is . that th .. . dd not ave a significant impact on the r I .. . e propose evelopment will h (cl 17H(4)(b)): e evant critical mdustry, based on a consideration of

• any impacts on land through surface area disturbance and subsidence • reduced · d d access to ' or impacts on, water resources and agricultural resources re uce access to support services and infrastructure • reduced access to transport routes • the loss of scenic and landscape values.

(ci~~{t

A gateway certificate remains current for five amended by application to the Gateway Panel

ft

er the date of issue (cl 17K) and can be

These quenc1ng · of planning approvals and min1·n approvals g [18.480] A mining lease cannot be granted under th M .. development consent is first held (M. . A e mmg Act unless an "appropriate" mmg ct s 65(2)) U d h M. · mcludes an approval under what wasp 3~ f h . n er t e mmg Act's Dictionary, this planning approval is the "primary" art I o. t e EPA Act. This essentially means that the approva reqmred by any ne . . h un er section 89K(l)(c) of the EPA A . . w mme mt e State. Accordingly, d · ct, a mmmg lease cannot b f d ·f · • carrymg out State Significant Development .d d h e re use i it is necessary for " b . 11 ' provi e t at the provi . f h . . su stantia y consistent" with th d I sions o t e mmmg lease are Development. e eve opment consent granted for State Significant

At the same time as section 65 .. before a mining lease can be grantedre!~~:ionng 3a8pOpAAropriate development consent to be in place • ' states that an a 1· · f consent to mme coal (or a modifi·cati· on app 1·icatwn) . pp. ication or development can t b d olds an authority (that is an explorat" 1· no e etermmed unless the applicant ' ion icence assessment lea · · h respect of coal and the land where coal . . . ' se or an existmg mining lease) in of such an authority) . mmmg is proposed (or the written consent of the holder

853

[18.520]

• mines in environmentally sensitive areas of State significance • mines or mining related works with a capital investment of more than $30 million • extracting bulk samples of more than 20,000 tonnes of coal or mineral ore • mining related works associated with other State Significant Development projects or •

having a capital investment value of more than $30 million development for the purpose of underground coal gasification.

Environmentally sensitive areas of State significance include the State' s coastal waters, SEPP 14 wetlands, SEPP 26 rainforests and State conservation areas reserved under the NPW Act. Even if a mine proposal is not subject to declaration under the State and Regional Development SEPP, it can be brought under the State Significant Development provisions by an order of the Planning Minister published in the Gazette, but only following advice from the Planning Assessment Commission (EPA Act, s 89C(3)).

Local development [18.500] Mining is local development where an environmental planning instrument requires

development consent for mining, but the proposal is not declared as State Significant Development. Mining leases are also dealt with as integrated development under section 91 of the EPA Act (see [5.370]).

Designated development [18.510) Local mining that is designated development, requmng the preparation of an

environmental impact statement, is listed in Schedule 3 of the Environmental Planning and

Assessment Regulation 2000. This includes all:

•• underground coal mines open cut coal mines that either produce or process more than 500 tonnes of coal per day or will disturb a total surface area of more than four hectares • other mines that will disturb a total surface area of more than four hectares (or two hectares in the case of limestone mines) • mines in environmentally sensitive areas, as specified under the Regulation. Mining and EPA Act Part 5 [18.520] Part 5 of the EPA Act can apply to the grant of a mmmg title, provided that

State significant development [1 8.490] The State and Regional Develo ment SEPP following classes of development (I. t dp I declares, by operation of cl 8(1)(6) that the d is e at c 5 of Sch 1 to the SEPP ' evelopment under Part 4 of the EPA Act: ) are state significant

•

coal mines and mineral sands mines

development consent is not required under Part 4. However, following the gazettal of the Mining SEPP, there are very few areas of the State where Part 5 now applies to mining. The main exception is mining on a mineral claim within a mineral claims district (Mining SEPP, cl 6(c)). In such circumstances, the requirements of Part 5 must be satisfied before the Secretary can grant a mineral claim under section 190(1) of the Mining Act.

854

The Environmental Law Handbook [18.530]

Because of the very broad effect of clauses 7(1)(a) and (b) f h M. · . above), it is now unlikely that there is any area of th St ho t e mmg SE~P (discussed . . . e ate w ere grant of a mmmg I • su bJect to Part 5, mcludmg those areas where there is no LEP h h . ease is nrr D' . . , sue as t e unmcorporated areas of th e western 1v1s10n.

[18.580]

• •

chapter 18 Mining

a newspaper circulating throughout NSW, and at least one local newspaper.

As discussed above, holders of these titles can carry out prospecting operations only in accordance with access arrangements agreed with each affected landholder (Mining Act 1992,

Exploration and EPA Act Part 5 (18.530] Since 16 December 2005 those "a th . d , u onse to prospect" d h M. · been exempted from the effects of environment I I . . un er t e mmg Act have that date (Mining Act, s 381). a p annmg mstruments except SEPPs made after

The Mining SEPP (made in 2007) provides that mineral . exploration is development permissible without consent (cll 6(a) (d)~i~~r~t1~n anhd petroleum some prospecting under the Min· A . . . . .' · IS ea s tot e result that mg ct 1s an act1v1ty reqmrmg assess b d .. authority under Part 5 of the EPA Act Cons . . ment y a etermmmg before granting either an exploration li~enc equently, the Mm1ster. must comply with Part 5 "authorised to prospect" For prospecti e ohr a_n. assehssm~nt lease, m order for a person to be ' ng aut ont1es (t at IS exploratio J' Ieases) issued after 1 July 20 15 . . .. ' n icences or assessment 1 . ' exp orat10n act1v1t1es can fall into one of the foll owmg . two categones: 1.

exempt prospecting operations

2.

assessable prospecting operations.

Those exploration activities having minimal environmental im . . . exempt development provisions of the Mining SEPP f d p;ct an1 otherwise sat1sfymg the considered to be exempt prospecting operations. s:::r::ti~~i:s o;e (t at is, c!l 10 a~d lOA) are assessment under Part 5 of the EPA A t d h . o not reqmre env1ronmental of exempt d I f h definition of an "activity" to which p c ,t ue to .t e(carvmg out . eve opment rom t e ar 5 app1ies s 110(1)(1) of the EPA Act). Accordingly, exploration activities that are "assessable . . environmental assessment under Part 5 of the EPA Act. prospectmg operat10ns" will require There is one very limited exception to the . 1 1 h permissible without consent: the Mining ~~~;a ru .~~ at :meral exp~oration is development comprising 20,000 tonnes or more of coal or othe/~:::r:: t a_t extra~t1?n of a b.ulk sample The State and Regional Development SEPP 'd h ore is perm1ss1ble only with consent. Development. prov1 es t at such development is State Significant The requirements of Part 5 must also be fulfilled b f h S . 1· e ore t e ecretary can grant a I prospectmg JCence under section 228(1) of the Mining Act. n opa

Public and landholder participation

s 140).

Mining titles Advertising tenders or proposals to grant mining leases [18.550] Tenders and applications for mining leases must also be advertised. Tenders are advertised by the Minister (Sch 1, cl 24), but applications are advertised by the applicant (s 51A). The advertisement must be in:

• •

a newspaper circulating throughout NSW, and at least one local newspaper.

Notification of landholders - mining leases (18.560) Affected landholders must be individually notified of any proposed mining lease that will extend to the surface of land (Mining Act 1992, Sch 1, ell 20, 21). This is to give them an opportunity to object on the grounds that the land is agricultural land or contains a significant improvement (Sch 1, cll 22 - 23A). In addition, the holder of a mining lease cannot exercise any rights under the lease on the surface of any land unless compensation has been agreed with the affected landholder, or else assessed by the Land and Environment Court (s 265(4)).

If planning

approval is required

[18.570] If planning approval is required for the proposed mine, those who have the right to make submissions under the EPA Act lose the right to object under the Mining Act 1992 (Sch 1,

cl 28(6), Dictionary). This is to prevent persons from lodging objections under both pieces of legislation. It must be noted that it is the right to make submissions under the EPA Act that disentitles a prospective objector from objecting to the grant of mining lease under Schedule 1. Even if a prospective objector elects not to make submissions under the EPA Act, they would have no more rights to object to the grant of a mining lease than someone who had so exercised their rights under the EPA Act.

Objections where development consent is not required [18.580] The Mining Act provides that where planning approval is not required for a mining

Prospecting titles [ 18-540] Applicants for exploration licence (ss 13A, 33A; Mining Regulation cll 15 20s) o;hassesdsme~t leases must ad~ertise their application ' , · e a vert1sement must be m:

lease, then objections from members of the public to the proposed grant of the mining lease must be taken into account by the Minister in deciding whether to grant the lease (Sch 1, ell 27, 28(6)). However, these provisions are probably redundant. Since clause 7 of the Mining SEPP makes mining generally only permissible with consent, there is no practical possibility of a mining lease application which does not require consent.

855

chapter 18 Mining

856

The Environmental Law Handbook

(18.590)

(18.670)

D

Mineral claims [18.590] Apart from the landholder rights already discussed in relation to improvements, agricultural land and compensation, there is no provision for public consultation over the granting of mineral claims.

Landowner consent not required [18.600] The general requirement of the EPA Act is that all development applications under

Part 4 must be accompanied by the consent of the landowner (Environmental Planning and Assessment Regulation 2000, cll 8F(l), 49(1)). However, this rule does not apply in the case of a State significant development for mining or petroleum outside of a State Conservation Area (EPA Regulation, cl 49(2), (4), (5); Mining Act, Sch 1, cl 14). The basic reason for this is because the Crown wishes to control the potential development of minerals, most of which continue to be owned by the Crown rather than the landowner.

l t then particular agency consultation provisions apply (EPA Act, s 89G(b), EPA ev\:fi::n ~l 84 (2 }(b)). Where proposed mining is local development, ~hen the" agency Regu . , . . l nt to integrated development (including the obtammg of general consultatwn provis10ns re eva . ") must be applied by the consent authority (see [5.370]). terms o f approva l

Mining leases not requiring planning approv~l •

l ·

·red then the Mining Act provides for agency , . ll inv~lvement (Sch 1, Part 2), including notifying Government age_ncies that would bed~~:e;;a; affected by the granting of the lease, the Secretary of the Plannmg Department, an

(18 640] If planmng approva is not requi

Safety Committee.

Consolidation of mining leases t

l

be given an opportunity to

Department mus a so 1·d . t" [ 18.650] The Secretary of. the Planning d. . where there is a proposal to conso i ate exis mg

Legal challenges [18.610] Any legal challenge to the grant, renewal or transfer of an authority must be made within three months of the associated notification in the Gazette (Mining Act, ss 137, 136(c)). Grant, renewal or transfer of a mineral claim is not notified in the Gazette, but the three month limitation still applies (s 210B).

Other rights to challenge may exist under s 123 of the EPA Act ors 253 of the Protection of the Environment Operations Act 1997.

Agency involvement in decision-making

propose conditio_ns or ob1ect to con _ltlobns referred to the Premier for resolution (Mining Act, mining leases. Disagreements can agam e ss 88, 90 - 93).

Mineral claims

.

.

l

. the granting of mineral claims, except h llin bod

[18.660] There is no particular agency mvo vement m

t that a mineral claims dis~rict cannot be conS ituted ::::i::::v::!::ts~::::~ ::~:::~ly a1fecte~ 2 173 of that area consents (Mmmg Act, s ( }(c)). Th t"t te a mineral claims district agencies and affected local councils of any proposa 1 to cons i u (Mining Act, s 174).

Prospecting authorities

Compensating landholders

[18.620] Agencies other than the Department have limited involvement in the process of granting and renewing exploration licences and assessment leases. However, before granting an assessment lease, the Minister must notify (Mining Act, Sch 1, cll 1(1), 2(1)):

Compensable loss under the Mining Act

• the Secretary of the Planning Department • all Government authorities that would be "materially affected" • the local council or councils (if any).

The Minister must give these persons and bodies an opportunity to object on the grounds that they have "major proposals for some other use of the land". If agreement regarding the granting of the lease is not reached, the issue must be referred to the Premier for a decision (Sch 1, cl 3).

Mining leases requiring planning approval [18.630] The Mining Act no longer contains agency consultation provisions governing the grant

of mining leases where planning approval is required. Where proposed mining is State Significant

[l . o] Part 13 of the Mining Act ensures that landholders are able to be ~omrnsated f::i::~ 8 67 damage caused by mining or prospecting operations earned out under tlt es. ompensa includes loss caused, or likely to be caused (Mining Acts 262), by damage to:

• the surface of land • crops, trees, grasses or other vegetation • buildings, structures or works. • • •

The definition also covers: deprivation of the possession or use of the surface of land severance of land surface rights of way or easements

857

858

The Envir on mental Law Handbook

• •

[18.680]

(18.710]

chapter 18 Mining

destruction, loss or disturbance to stock damage consequential to any of these matters.

It excludes loss that is compensable under the Mine Subsidence Compensation Act 1961. The holder of a mining lease is not authorised to exercise any rights under the lease on the surface of any part of the mining area unless the amount of any compensation payable to a landholder in respect of that part of the mining area is the subject of a valid agreement or of an assessment made by the Land and Environment Court (Mining Act, s 265). The legislation also requires access arrangements for exploration licences and assessment leases. These arrangements can, and often do, set out agreed compensation for compensable loss. To the extent that the arrangement does not do this, the payment of compensation for compensable loss is taken, for the purposes of any security given by the lessee, to be an obligation under the licence or lease (Mining Act, ss 263 and 264). The provisions of Part 13 were substantially updated in 2008 and 2010. The principal effects of those amendments were to replace the previous role of the mining warden with the Land and Environment Court (LEC) and to clarify the effect of existing provisions. Compensation is also payable in respect of small-scale titles (Mining Act s 266(1)). Those provisions were amended under the Mining Amendment (Small-Scale Title Compensation) Act 2014, which introduced a system under which the Minister can set a standard compensation level for small scale titles, which are collected by the Government on behalf of landholder. Compensation is also payable in respect of compensable loss caused, or likely to be caused, under environmental assessment permits (see [18.710)) (ss 270(1), 252).

Agreement, determination or assessment? [18.680] Landholders can reach an agreement with titleholders over compensation, either as part of an access arrangement for a prospecting title under Division 2 of Part 8 or for titles generally under Part 13. However, landholders can also seek a determination by an arbitrator under Division 2 of Part 8 or assessment by the LEC under Part 13 in relation to prospecting titles. Access arrangements can be amended according to the terms of the arrangement, or by the LEC if the access arrangement was determined by the court or an arbitrator (section 157). The Walker Review made various recommendations to the land access arbitration systems, with some recommendations made in relation to compensation (see [18.400)).

How much must be prn·d::,• .

[18. 700] The basis for purchase ishre:~n_a

.. bl

when compared with the prov1s1ons ~ gtenerous Consequently landowners tend to use these

governing compensable loss under t e mhmgM_c .' . Act Withi~ three months of receiving a .. · f to those under t e mmg · prov1s10ns m pre erence . t make a binding written offer based on f the landowner the mme owner mus db h written request rom ' h d f h est as if the land was unaffecte y t e the current market value of the land at t e _ate o ·t e requ . ~ing and permissible use of the land cl 1 t The value must take mto account ex1s b mining eve opmen . d d building or structure that has een and the presence of improvements an any av:ove_ owner must also pay the landowner: physically commenced at the date of the request. e mme

• reasonable costs relating to relocation • reasonable costs relating to legal and expert advice • reasonable compensation for disturbance.

isition rice either party may refer the matter to the If the parties cannot agree on an acqu p ' 1·£-ed independent valuer. If either 1 . D nt who must appomt a qua I I Secretary of the p annmg epartme '. h h refer the matter to the Secretary, who t en t ey may p arty disputes the valuer's . determmat10n, . can make a final determmat10n.

Mine Subsidence Compensation Compensation under the Mine Subsidence Compensation Act 1961

.

. . 1961 (MSC Act) deals with compensat10n for [18.710] The Mine S~bsidence Com,febnsatiobn ~dct lated to coal mining or prospecting. y su s1 ence re cl amage cause d to "improvements Improvements include any (s 4):

• • •

building or work erected or constructed on land formed road, street, path, walkway or driveway

.

pipeline or water, sewer, telephone, gas or other service mam whether above ground or below the surface.

.

. . paya ble for damage caused by subsidence to improvements anywhere m Compensat10n 1s NSW, including (s 12):

Acquisition under conditions of approval [18.690] For many years, conditions of Ministerial planning approvals have required mine owners to purchase land near mines affected by excessive dust or noise, should the landowner wish to sell. The mine owner must acquire the land at the landowner's request if certain dust pollution or particular noise criteria (identified in the mine ' s planning approval) are exceeded. Sometimes, these criteria are predicted to be exceeded prior to the mine being approved, in which case the land is identified in the approval as automatically having this right of voluntary acquisition. In other cases, "systemic" exceedance of the relevant dust or noise criteria must be demonstrated by monitoring at the residence or land.

• •

compensation for damage to household and other effects the cost of damage prevention and mitigation work

• payment for any rent foregone.

h

. . . S b .d nee Board (Board). The Board may c oose The MSC Act is admm1stered by the Mme u s1 e cl b b .cl nee to an improvement is f t' where damage cause Y su SI e to reduce payment o compensa i~n . h. h it was constructed or maintained increased due to the negligent or improper manner m w IC (s 12(l)).

) 243 CLR (NSW) Ltd v Mine Subsidence Board (20ll In the case of Jemena Gas Networks h . l2A(l)(b) of the Mine Subsidence 558; [2011) HCA 19, the High Court found t at sect10n

859

86 0

The Environmental Law Handbook [18.720]

Compensation A ct 1961, as it existed at the time allo d Compensation Fund for anticipated damage eve 'b f we hpaymb ~nts from the Mine Subsidence S b . ' n e ore t e su s1dence h d d . u szdence Compensation Amendment Act 2014 d d . a occurre . The Mme . · amen e sect10n 12A t h . Court dec1S1on, ensuring that section 12A ld 1 b o overcome t e High cou on Y e used to c1aim · momes · for preventative damages where: claim is made after the subsidence concerned has comme d •• ilithee expense .. or proposed after the s b .d • at the time . theis mcurred u s1 ence concerned has commen d expense is incurred o ce ~

not to occur

r proposed the damage concerned is more likely than

• mitigating the Board is satisfied that the preventative .. . work) is appropriate a d or m1t1gatmg work (or proposed preventative or to pre t ·• • the subsidence concerned is not d nue tnecessary . ven or m1t1gate the damage concerned o operations earned on by the owner The Board can also:

·

• purchase (at not more than undamaged market 1 damage is so great as to prevent i·ts . v~ ue) property and improvements where economIC repair (s 13(1)) • uncommenced undertake or cause preventative works, at its ex ense s . provision under the M. S b _dP ( 13A). In this regard, there is an

. tne it st ence Comp · A wh ICh will replace section 13A which will d . . ~nsatton mendment Act 2014 . . . mo ermse the ex1stmg provision when A hm1tat1on to the MSC Act is that .t 1 d . commenced. 1 on y covers amage to im b ut not most consequential damage. provements and rent foregone,

Mine Subsidence Districts [18.720) There are presently 19 gazetted mine subs"d . . local Government areas of: I ence d1stncts, located within parts of the

• Camden • Campbelltown • Cessnock • Greater Lithgow • Lake Macquarie • Maitland • Muswellbrook • Newcastle • Upper Hunter • Singleton • Wingecarribee • Wollondilly • Wollongong • Wyong.

Maps of each of the 19 districts are available through the Board's website.

[18.740]

chapter 18 Mining

Non-mining development in mine subsidence districts [18.7:J0] The MSC Act controls non-mining development within proclaimed mine subsidence

districts (s 15). In these areas, most new developments are subject to a more detailed form of assessment and approval. The purpose is to require those developments to be built to a higher engineering standard (or in some cases subject to restrictions such as height or floor area limitations) in order to minimise potential subsidence damage from underground coal mining which may take place at some time in the future. Proactively designing and building structures to appropriate standards leads to significant reductions in the Board's future compensation liabilities. These provisions were also subject to amendments under the Mine Subsidence Compensation Amendment Act 2014, amongst other things, introduced the concept of a "contravening development" and "contravening subdivision" and preventing claims under sections 12, 12A and 13A in respect of such developments and subdivisions. Under the integrated development provisions of the EPA Act (see [5.370]) consent authorities must refer development applications for improvements or subdivision of land in a mine subsidence district to the Board (EPA Act, s 91; EPA Regulation, cl 66). The Board either issues its own approval or, for certain minor developments, may authorise the relevant council to issue the approval under delegation. These are referred to as "deemed approvals" and include:

• garages • sheds • fences • carports • awnings constructed of lightweight material • above ground and fibreglass pools • certain additions to existing dwellings.

Information on these "deemed approvals" can be found on the Board's website.

Approvals [18.740] Approvals may be granted either conditionally or unconditionally. The Board can

refuse applications that also require consent under the EPA Act, until such consent has been obtained (MSC Act, s 15(6)). Stop work notices can be issued in the event of a breach (s 15D). However, the Board also has the discretion, within certain constraints, to issue compliance certificates where its approval has not been sought or there have been departures from its approval (s 15B).

861

8 62

The Environmental Law Handbook [18.750]

Protection of the Environment

(18.780]

chapter 18 Mining

Environmental protection and rehabilitation conditions

General [18. 750J Part 11 of the Mining Act contains the main provisions in the Act c

· . f h · d · . ovenng protection o t e environment urmg explorat10n and mining. Prior t 0 2010 p ll • D· · · • • . , art comprised only four 1v1s10ns contammg 10 sect10ns which were very · ·1 h · · • . . , s1m1 ar to t e prov1s10ns m the previous M tnmg Act 1973 and Coal Mining Act 1973 V d th M. · A . · n er e tntng mendment Act 2008 Part 11 was _expa~ded radically, although not all provisions have commenced. Part 11 contains dealmg with the following: 1v1s1ons

d. ..

• environmental considerations in decision-making • conditions for protecting the environment • matters directions to titleholders regarding environmental management, rehabilitation and other • management of derelict mine sites • directions to remove mining plant from abandoned mine sites • audits. Additional provisions relating to environmental protection are located elsewhere m the Mining Act, including:

• lodgement of security deposits (Part 12A) • various offences and penalties (Part 17A).

[18.770] The power to impose conditions relating to environmental protection and rehabilitation has been in mining legislation since 1973. Section 239 provides a specific conditioning power in relation to rehabilitation, and also allows insertion or amendment of such conditions where they do not exist, or whether they are "inadequate".

Unlike environmental protection and rehabilitation conditions, other conditions for authorities and mineral claims can only be varied on renewal or transfer (ss 114(4), 121(3), 198(3), 201(3)). In the case of mining leases, the Mining Act provides that more general conditions can extend well beyond the area of the mining lease (s 70(2)), covering matters like:

• • • •

transportation of minerals or other materials treatment of minerals waste disposal the use to which the mineral can be put.

There is also a power to suspend any condition at any stage, either unconditionally or subject to alternative conditions (ss 168, 215).

Audits

. P_rospecting operations and other prescribed activities may be carried out above a subsurface mmmg lease_ "".1th the consent of the landholder (s 81(1)) (see [18.540)). Part 11 then a lie that land as if It were the subject of the mining lease (s 81(3)). pp s to

[18.780] Since November 2010, the Mining Act has contained provisions to enable audits of mining and prospecting operations (ss 246M - 246X). These requirements are consistent with requirements under other environmental protection legislation (particularly the Protection of the Environment Operations Act 1997: see Chapter 9). Their purpose is to enable a coordinated Government approach to the auditing of mining operations.

Environmental considerations in decision-making

An audit is a documented evaluation of prospecting or mmmg operations (including management practices, systems and plant) to (s 246N):

[18. 760J Division 1 of Part 11 makes it mandatory for the Minister to take into account the need

to co~~erve and. protect flora, fauna~ fish, fisheries and scenic attractions, and the features of A~?rh1g1hnal, arhch1~ectura1, ~rc~aeolog1cal, historical or geological interest, in or on the land over w IC t e aut onty or claim 1s sought. . To _assist i_n making these decisions, the decisi·on-maker h as d iscretion to cause studies me1udmg environmental impact studies, to be carried out. ' The Minister can grant permits to enter land to those undertaking environme t I of activities to be carried out under an authority or am· I 1. f h n a assessments M. · A mera c aim, or t e purposes of either the ml1~g dct or the EPA Act (s 252). Compensation is payable for interference with use and any resu tmg amage (ss 269 - 270).

• • •

provide information on compliance with obligations under the authorisation or other related legal requirements under the Mining Act or any other law provide information on compliance or otherwise with codes of practice or policies relevant to the authorisation enable a determination of whether the way activities are being carried out under the authorisation can be improved in order to protect the environment.

However, such audits are not mandatory unless a condition is first imposed on an authorisation (s 246P(1)). Mandatory audits must be carried out by an accredited auditor (s 2460). There is also provision for holders of authorisations to carry out voluntary audits of their operations to enable them to monitor compliance with regulatory obligations and implement any necessary changes (s 246U).

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[18.790)

[18.830)

chapt e r 18 Mining

Security deposits

Directions suspending operations

[18.790] Conditions can be imposed on authorisations reqmrmg prov1s10n of a security to ensure fulfilment of obligations under the authorisation (ss 261B(l), 261A). Security deposits can now be imposed regardless of whether the land affected is or has ever been within an authorisation area (s 261B(2)) . This means that land outside of a mining lease (or above it, in the case of a subsurface or underground mining lease) can now be the subject of a security deposit to ensure satisfactory rehabilitation. A new or increased security deposit can be imposed on an existing mining lease or other authorisation (ss 261B(3 ), (4) ). Security deposits are calculated according to the expected costs of rehabilitation.

[1 8.810] Subject to statutory requirement to give prior written notice and a reasonable

Under provisions introduced under the State Revenue and Other Legislation Amendment (Budget Measures) Act 2012, section 261BA allows the decision-maker to require payment of the security deposit under a proposed security deposit condition before the authorisation is granted. Further, a system was introduced whereby the Secretary may assess the amount of the security deposit that may be required by a security deposit condition for a particular authorisation or group authorisations, and for the holder of the authorisation to apply for a review of the assessed security deposit (ss 261BC and 261BD) . The 2012 provisions also allowed a minimum deposit to be prescribed in the regulations. Clause 75 of the Regulation stipulates a minimum security deposit of $200 for small scale titles, $1,000 for environmental assessment permits, and $10,000 for other authorisations. A security deposit may only be claimed by the Minister if (s 261F(l)) :

• the authorisation is cancelled or ceases to have effect and an obligation remains unfulfilled • the holder of the authorisation has failed to comply with a direction under section 240.

opportunity to make representations, the Secretary may also direct that operations be suspended where there has been a contravention of (ss 240A(l), (2)):

• • • •

a direction under s 240 a condition of the authorisation an access arrangement relating to the authorisation area an agreement or assessment relating to the payment of compensation in connection with the authorisation.

Failure to comply with any direction, without reasonable excuse, is an offence. The issuing of a direction does not affect the (s 240D):

• • •

liability of any person to any penalty for an offence in relation to an authorisation amount of security deposit that is or may be required under an authorisation operation of other provisions of the Act and Regulation that require or enable other actions to be taken in relation to any contravention or other situation to which the direction relates.

If the titleholder or other responsible person fails to comply with the direction, then the Minister can ensure that the relevant steps are taken and recover the costs from the titleholder (ss 241,242). If any person (say a landholder) suffers damage caused by the taking of these steps, then that person is entitled to be paid reasonable compensation by the person who failed to comply with the initial direction (ss 241(3), (5)).

The Minister may only use money obtained from a claimed security deposit to fulfil these obligations or to give effect to the direction (s 261F(3) ).

Derelict mine sites

Direction s to protect the environment or conduct rehabilitation

[18.820] Since November 2010, the Mining Act has contained provisions directly controlling the management and rehabilitation of "derelict mine sites". The Minister may declare as a derelict mine site any land that, in their opinion "was used for, or has been affected by, mining operations or prospecting operations, and has been abandoned" (s 241A(l)). While the term "abandoned" is not defined, it is generally understood as meaning that the land is no longer under the control or management of a titleholder or other person responsible for the mining or prospecting which took place.

[18.800] Under section 240, the Secretary or an inspector appointed under section 361 may

direct a titleholder and even the former holder of an authorisation that has ceased to be in force to:

• give effect to conditions of an authorisation • address any adverse impact that activities carried out have had on the environment • address a risk of there being such an impact • conserve the environment, protect it from harm or prevent, control or mitigate any such harm • rehabilitate land or water affected by activities under the authorisation.

The Mining Act also provides a statutory basis for a Derelict Mine Site Fund (s 242C), and to provide statutory responsibility and powers for the Secretary to ensure the partial or full rehabilitation of derelict mine sites (ss 242B(l), (2)) . A landholder who suffers damage caused by an authorised person undertaking mine rehabilitation works is entitled to reasonable compensation in accordance with the compensable loss provisions of the Act (ss 242B(4), (5)) .

Directions may require those responsible to carry out or stop carrying out particular activities, carry out activities in a particular manner or achieve specified outcomes within specified periods (s 240(2)).

[18.830] After the termination of an authority or other authorisation, the Minister can order the removal mining plant from the land and forfeit and sell them if they are not removed (ss 243 - 246) .

Directions to remove mining plant

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Offences and enforcement [18.840] The general offence provisions in the Mining Act were substantially updated and expanded in the Mining Amendment Act 2008 amendments which commenced in November 2010. The seven sections previously in Division 3 of Part 17 were replaced by a new Part 17A, Offences and Enforcement. Primarily, Part 17A contains provisions regarding proceedings for offences, restraining orders, court orders and evidentiary provisions.

The key purpose of these amendments was to bring the offence and enforcement provisions more into line with the other key State environmental legislation, particularly the Protection of the Environment Operations Act 1997 and the EPA Act. The aim was not only to increase penalties, standardise offences and broaden their application, but also to make the offence provisions more readily enforceable.

Principal offences and penalties [18.850] The primary offence and penalty provisions are found in sections 5 - 6, which relate to prospecting, mining or conducting mining purposes without appropriate authorisation. It is an offence to prospect for or mine any mineral on any land except in accordance with an authorisation which is in force (s 5), and to carry out particular mining purposes.

Other key offence provisions include:

• obstruction of wardens or other persons exercising functions under the Act (s 378A) • obstruction of the holder of an authorisation from undertaking authorised activities (s 378B) • furnishing false or misleading information (s 378C) • contravening conditions of an authorisation (s 378D). Executive liability offences [18.860] Under amendments made by the Miscellaneous Acts Amendment (Directors' Liability) Act 2012, directors and individuals in a position to influence the conduct of a corporation can be personally liable for corporate offences against section 240C (failure to comply with a direction) and s 378D(l) (contravention of a condition), where they had reasonable knowledge that the offence would be committed, and failed to take reasonable steps to stop the commission of the offence (s 378AF). The amendments also introduced directors' liability provisions for being an accessory to a corporation committing an offence.

Theft of minerals [18.870] Sections 12A - 12D deal with offences concerning the theft of minerals. These provisions were inserted in the Act in 1996, largely to deal with the problem of "ratting" on the Lightning Ridge opal fields, where mineral claims were being raided by other opal miners at night to steal small but valuable quantities of opal.

(18.930]

chapter 18 Mining

Other offences and penalties [18.880] There are a variety of other offences and penalties scattered throughout the Mining Act. From an environmental perspective, the most significant are found in sections 12(4), (6), 75(3), 240C, 246R and 248S.

Cancellation and suspension of operations [18.890] The Mining Act also contains a number of other strong measures for dealing with those who prospect or mine without observing the Act or the conditions of their title.

Cancellation of titles [18.900] Authorities can be cancelled for failure to comply with any provision of the Mining Act or the Mining Regulation, for breach of conditions, for providing false or misleading information, as well as a variety of other reasons (s 125(1)). Cancellation provisions also apply to mineral claims and opal prospecting licences on the same grounds (ss 203(1), 233(1)).

Under sections 380A{l)(c) and (d), introduced by the Mining and Petroleum Legislation Amendment Act 2014 in response to certain findings of the Independent Commission Against Corruption, a decision can be made to cancel a mining right or restrict operations on the basis that a person is not a "fit and proper person".

Suspension of operations [18.91 OJ Cancellation of titles is a drastic measure. The Act also provides that the Secretary can, by written notice, suspend any or all operations on an authorisation (s 240A(l)).

Compensation, objection and appeal [18.920] Compensation is not payable for either cancellation or suspension of operations, unless the title has been cancelled because the land is required for a public purpose (ss 127, 205). However, titleholders can object to a proposed cancellation or suspension of operations, and their representations must be taken into account (ss 126(1), 204(1), 234(1), 240A(2)). There is also a right of appeal to the Land and Environment Court over a decision to cancel an authority (s 128) or mineral claim (s 206).

Judicial processes under the Mining Act [18.930] For many years, the Mining Act established and maintained a separate and distinct judicial process - the Mining Warden's Court. The essential reason for this was the specialised property rights associated with prospecting and mining titles, and the interactions of those property rights with the rights of other landholders. This situation ended with the abolition of Warden's Courts in April 2009 by the Courts and Crimes Legislation Further Amendment Act 2008. Instead, most judicial processes under the Mining Act now fall within the jurisdiction of the LEC. The LEC therefore has its "Class 8" for mining matters (s 21C). In addition, Part 15 of the Mining Act sets out in detail the roles of the LEC.

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•

[18.940)

The general jurisdiction of the LEC (s 293(1)) includes: any demand for debt or damages arising out of prospecting or mining

• trespass on or injury to any land as a result of prospecting or mining

• all rights claimed in or under an authority or mineral claim • disputes over the validity of granting an authority or mineral claim • disputes over compensation or access arrangements • review of arbitrators' decisions over access arrangements • prosecutions for certain offences heard summarily.

The Mining Act provides a merit appeal right against any decision made on the basis of the "fit and proper person" test in section 380A of the Mining Act. The LEC has the power to freeze funds or the sale of minerals (s 294), grant injunctions (ss 295, 296), issue orders (s 297) and order the payment of monies or the delivery of a mineral (s 298). The LEC also has the responsibility to determine any dispute arising over the exercise of rights under an authority or mineral claim within the prescribed distance of a principal place of residence or garden, or on land on which a significant improvement is situated (ss 31(5), 49(5), 62(6A), 188(5)).

In this regard, the Bill if passed and commenced would insert a single schedule relating to decision making into the Mining Act giving uniform statutory guidance as to the assessment, determination, conditioning and ongoing administration of titles, such as condition variation and suspension across all authorisations (except environmental assessment permits). The Bill also seeks to insert a range of new compliance and enforcement tools, including enhanced powers to issue directions, a power to issue a prohibition notice for illegal exploration and mining activities, and the introduction of enforceable undertakings.

Exploration and production of onshore petroleum General [18.950) Petroleum exploration and production on land is regulated under the Petroleum (Onshore) Act 1991. This Act has broad conceptual similarities to the Mining Act but even a cursory comparison between the Petroleum (Onshore) Act 1991 and the Mining Act will reveal several important differences, with the onshore petroleum regime not having benefited from the various modernisations which the Mining Act has enjoyed.

Having said this, the Petroleum (Onshore) Act amendments, such as the following: State Revenue and Other Legislation Amendment various fee requirements and provisions relating contains various uncommenced provisions) Petroleum (Onshore) Amendment (Royalties and increased penalties across key offences.

Penalty notices

•

[18.940) Rather than undertaking a prosecution, an authorised officer can serve a penalty notice on a person for any offence prescribed by the regulations (s 378K(l)). The penalty notice essentially gives the person served the choice of paying a specified fine, or else having the matter dealt with by the appropriate court (s 378K(2)). Penalty notice offences carry penalties between $150 and $5,000 (Reg, cl 80 and Sch 11).

•

Proposed 'Harmonisation' Bill [18.945) The Mining and Petroleum Legislation Amendment (Harmonisation) Bill was introduced into Parliament in October 2015. The Second Reading Speech describes key aspects of the Bill in the following way:

The bill sets out consistent requirements for the administration of exploration, assessment and production titles across all resources types. This includes guidance as to the grounds for determination of applications for grant, renewal or transfer of titles. This will ensure that industry and the community are aware of the standards that must be met for an application to be granted. The standards will include the new minimum technical, financial and work program standards and the applicant's compliance history. The bill consolidates powers to impose conditions on titles into one section. The legislation will now list seven categories of conditions. These categories align with the objects of the Act and include protection of the environment, rehabilitation of land and water, ensuring public safety, compliance, administration, and community relations. Conditions may be imposed by regulation or on a title instrument.

chapter 18 Mining

[18.970)

1991 has been subject to important (Budget Measures) Act 2012 inserted to security deposits, (although it also Penalties) Act 2012, as noted above,

In addition are Mining and Petroleum Legislation Amendment (Public Interest) Act 2013 and Mining and Petroleum Legislation Amendment Act 2014, noted above in relation to the Mining Act, and the Gas Plan legislation described further below.

What is petroleum? [18.960) Petroleum is any naturally occurring hydrocarbon or mixture of hydrocarbons (s 6). It may occur in a solid, liquid or gaseous state, and includes natural gas and coal seam gas. ~t _may be mixed with hydrogen sulphide, nitrogen, helium, carbon dioxide and/or water. The defmmon also includes any hydrocarbon or mixture of hydrocarbons and these other substances that has been returned to a natural reservoir. Consequently, any proposal for carbon dioxide sequestration in a natural reservoir would fall within the coverage of the Petroleum (Onshore) Act 1991. The definition excludes coal or oil shale, which are covered solely by the Mining Act.

What are coal seam gos and shale gos? [18.970) Coal seam gas (CSG), also known as coal seam methane or coal bed methan_e, is a mixture of gaseous hydrocarbons (primarily methane) found in many coal seams. Prospectmg for

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and production of CSG involves somewhat different techniques than for natural gas or liquid petroleum. Depending on the nature of the seam, commercial CSG production may (but not always) require hydra ulic fracturing (fracking) of the seam to enhance CSG production. The seam may also require extensive dewatering before CSG will desorb from the coal and flow under its own pressure (or be pumped) to the surface through a network of relatively closely spaced boreholes ("wells"). A requirement to frack the coal seam may be overcome (in some geological circumstances) by extending the initially vertical well for a considerable distance horizontally within the coal seam (a drilling technique known as "surface to in-seam drilling" or SIS drilling).

The Review also made a series of recommendations. In response to the Review, the NSW Government released its "Gas Plan" in 2014 in which it accepted all of the Chief Scientist's recommendations and set out 14 key actions under five "priorities":

•

Priority 1 - Better science and information to deliver world's best practice regulation

•

- The Government accepted all the recommendations of the Chief Scientist and Engineer's independent review and is committed to building a world class regime for the extraction of gas. Priority 2 - Pause, reset and recommence - Gas exploration on our terms - A Strategic Release Framework will be introduced to ensure that any future gas

"Shale gas" is a similar mixture of gaseous hydrocarbons found in certain types of shale, a fine-grained sedimentary rock. Because shale has low porosity and permeability, it always requires extensive fracking to produce significant flows of gas. The movie Gas/ands focuses on shale gas production and associated large scale fracking of shales in the United States. Both CSG and shale gas are treated as petroleum under both the petroleum and planning legislation. They do not have their own separate legislative provisions. The Petroleum (Onshore) Act 1991 provides (s 6) that all petroleum existing in a natural state in NSW is the property of the Crown - that is, it is publicly owned.

-

•

NSWGos Plan [18.980] There has been a renewed focus on the petroleum exploration and production in recent years due to the prominence of coal seam gas, as an issue of concern for both community and Government. On 21 February 2013, the then Premier Barry O'Farrell, commissioned an "Independent Review of Coal Seam Gas Activities in NSW" (Review), amidst what the Chief Scientist's final report described as "a climate of community unease about CSG extraction." (Final Report of the Independent Review of Coal Seam Gas Activities in NSW, NSW Chief Scientist & Engineer, September 2014, p iv. Available at: http://www.chiefscientist.nsw.gov.au/_ data/assets/pdf_file/0005/56912/140930-CSG-Final-Report.pdf.)

• • • • • •

high standards of engineering and professionalism in CSG companies creation of a State Whole-of-Environment Data Repository so that data from CSG industry operations can be interrogated as needed and in the context of the wider environment comprehensive monitoring of CSG operations with ongoing automatic scrutiny of the resulting data a well-trained and certified workforce, and application of new technological developments as they become available.

(Final Report of the Independent Review of Coal Seam Gas Activities in NSW, NSW Chief Scientist & Engineer, September 2014, p iv.)

exploration is done on our terms and terms that meet community expectations. Legislation will be introduced in 2014 to extinguish all current petroleum exploration licence applications. The Government will establish a one off buyback of petroleum exploration licences. Petroleum exploration titles will be removed from National Parks. The Government will implement and enforce a "use it or lose it" policy requiring titleholders to commit to developing the state's resources or risk losing their title.

Priority 3 - Strong and certain regulation - The independent Environment Protection Authority will be appointed as the lead regulator for gas exploration and production. - World best practice environmental and regulatory standards will be applied to gas

exploration and production - Strategic Energy Projects which benefit NSW gas consumers will receive whole of Government coordination. - Policy and regulatory reform will provide greater clarity for industry and communities.

•

In its own words, the Review concluded that: the technical challenges and risks posed by the CSG industry can in general be managed through: careful designation of areas appropriate in geological and land-use terms for CSG extraction

chapter 18 Mining

[18.980]

•

Priority 4 - Sharing the benefits - Legislation will be introduced to ensure that landholders share in the financial benefits of gas exploration and production. - Landholders will receive independent expert advice on benchmark compensation rates for gas exploration and production from the Independent Pricing and Regulatory

Tribunal. - A Community Benefits Fund with contributions from both gas companies and the NSW Government will be established to fund local projects in communities where gas exploration and production occurs. Priority 5 - Securing NSW gas supply needs - The Government will work with other State and Territory Governments and the private sector to explore the possibilities for gas pipelines to NSW. - Gas companies will be asked to demonstrate how projects that develop NSW gas

reserves will benefit NSW gas consumers. - The Government will commission an independent review of royalties to ensure we have the settings required to develop a competitive gas industry in NSW and secure our supply needs, - The Government will support households and businesses to use gas more efficiently to help reduce their bills and release pressure on overall gas supplies. Many of the action items have been phased in, including:

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• The expunging of PEL applications under the Petroleum (Onshore) Amendment (NSW Gas Plan) Act 2014.

• The Department's issuing of "Minimum Standards and Merit Assessment Procedure" in • •

May 2015, incorporating the "use it or lose it" policy. The EPA commencing as the lead regulator on 1 July 2015, with a $6.8 million allocation in 2015 - 2016 to support the EPA's new role (Media Release, EPA Leads Regulation of the CSG Industry, 1 July 2015). Introduction of Improved Management of Exploration Regulation in 2015 (see [18.1140] below).

Many of these changes have had an effect on the way petroleum titles are applied for and issued. In October 2015, the Government introduced the following Bills into Parliament which seek to address various aspects of the NSW Gas Plan:

•

chapter 18 Mining

Prospecting titles - exploration licence, assessment leases and special prospecting authorities [18.1000] As is the case for mining in NSW, exploration licences and assessment leases are the two main forms of prospecting title (ss 29, 33). These can be granted for up to six years (ss 31, 35). Prospecting includes all geophysical surveys as well as the drilling of exploration wells.

There is also a more limited form of prospecting title, the special prospecting authority, which only allows for "speculative geological, geophysical or geochemical surveys or scientific investigations", and can be granted for up to 12 months (ss 38, 40). A seismic survey can be conducted under a special prospecting authority, but wells cannot be drilled. All petroleum titles confer the right to carry on such operations as are necessary to explore for "natural reservoirs", which could be used to store petroleum or to sequester waste products such as carbon dioxide (s 28A). These rights are subject to curtailment by an order served on the titleholder by the Minister (ss 28A(2), (3)).

Mining and Petroleum Legislation Amendment (Grant of Coal and Petroleum Prospecting Titles) Bill 2015. If passed and commenced, this Bill will require petroleum exploration licences and assessment leases to be granted only after a competitive selection process, as described further above at [18.160].

When renewed, exploration licences can only cover 75% of the area which the licence previously covered, unless "special circumstances" exist.

Bill (see [18.945]). If passed and commenced, this Bill would harmonise key aspects of petroleum regulation under the Petroleum (Onshore) Act 1991 in line with provisions of the Mining Act, providing it with an updated decision-making and compliance and enforcement framework.

[18.101 OJ The production lease is the equivalent of the mining lease. A production lease can be granted for up to 21 years and provides the right to conduct petroleum mining operations, together with the right to build and maintain works, buildings, plant, waterways, roads, pipelines, dams, reservoirs, tanks, pumping stations, etc, "as are necessary for the full enjoyment of the lease" (ss 41, 45).

• Mining and Petroleum Legislation Amendment (Harmonisation)

• Mining and Petroleum Legislation Amendment (Land Access Arbitration) Bill, which is described further above at [18.400]. • Protection of the Environment Operations Amendment (Enforcement of Gas and Other •

[18.1030)

Petroleum Legislation) Bill. If passed and commenced, this Bill would provide the EPA with additional statutory powers to carry out its role as the lead regulator for petroleum. Work Health and Safety (Mines and Petroleum) Legislation Amendment (Harmonisation) Bill. If passed and commenced, this Bill would bring petroleum operations within the framework of the Work Health and Safety (Mines) Act 2013.

Petroleum titles [18.990] There are four kinds of petroleum title under the Petroleum (Onshore) Act 1991:

1.

exploration licences

2.

assessment leases

3.

special prospecting authorities

4.

production leases.

Production leases

Applying for and issuing petroleum titles [18.1020] The process for applying for petroleum titles set out in the Petroleum (Onshore) Act 1991 and the Petroleum (Onshore) Regulation 2007 requires the submission of an application supported by plans, a work program and evidence of financial standing. Applicants must comply with "minimum standards" set out in the Government's post-Gas Plan "Minimum Standards and Merit Assessment Procedure" from May 2015. This document sets out:

•

Work Program minimum standards relating to: - geological data and resource definition - environmental management and rehabilitation - community consultation

• Technical and financial capability minimum standards • Compliance history requirements • Fit and proper person requirements. Failure to meet minimum standards is a ground for refusal of a title application.

Challenging grant of titles: Time limits [18.10:JO] As under the Mining Act, the Petroleum (Onshore) Act 1991 includes a provision stating that legal proceedings challenging the grant of a petroleum title cannot be commenced

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more than three months after the grant of the title has been notified in the Government Gazette (Petroleum (Onshore) Act 1991, s 25), although in general clauses which purport to deprive a person of judicial review rights may be rendered ineffective following the decision in Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1.

Environmental protection [18.1040] In deciding whether to grant or refuse a petroleum title, the Minister has a statutory

duty to consider the protection of natural resources, the protection of the environment and the rehabilitation of land (Petroleum (Onshore) Act 1991, ss 74 - 76). These provisions reflect sections 237 - 239 of the Mining Act, and are essentially unchanged since the enactment of the Petroleum (Onshore) Act 1991. Conditions to protect the environment and to rehabilitate land are always imposed on petroleum titles. Compliance with conditions of title is subject to the relevant offence, penalty and penalty notice provisions of the Act (ss 136A, 137A).

Compliance and enforcement [18.1045] The Mining and Petroleum Legislation Amendment (Harmonisation) Bill, introduced

into Parliament in October 2015, proposes changes to the compliance and enforcement framework for the Petroleum (Onshore) Act 1991, including powers of inspection to the standard of the Mining Act, the possibility of penalty infringement notices for a wider range of offences, enhanced powers to issue directions, a power to issue a prohibition notice for illegal exploration and mining activities, and the introduction of enforceable undertakings.

(18.1090]

chapter 18 Mining

in respect of which a petroleum title is not to be granted. The Minister issued a notification under section 9(1)(a) on 24 March 2014 preventing the grant of prospecting titles on all onshore areas in NSW unless the area was subject to a title or application for a title already. This was to last until 26 September 2014, but on that date, the ban was effectively extended for another year. On 26 September 2015, the ban was extended until 31 December 2015.

Landholder consent on cultivated land [18.1080] The Petroleum (Onshore) Act 1991 has substantially fewer limitations over petroleum production or associated works on agricultural land than does the Mining Act. The requirement for landholder consent only applies to "land which is under cultivation" and does not generally extend to land cultivated for pasture (ss 71(1), (3)). The Minister can override even this restricted landholder veto, subject to the payment of compensation (ss 71(2), (2A)).

The Act has provisions allowing owners of dwelling houses, gardens and other improvements on land to veto petroleum exploration and production operations, but these provisions are also somewhat different to those under the Mining Act, in that (ss 72(1), (3)):

• •

the Minister is given greater discretion than under the Mining Act when it comes to deciding whether an improvement is "substantial or valuable" with no provision for inquiry and report to advise the Minister the provision for consent only extends to "operations" or "works" on the surface of the land, rather than to the grant of the title itself.

Petroleum and the planning legislation [18.1090] Prior to 2005, the Petroleum (Onshore) Act 1991 contained provisions (equivalent to

Where activities are restricted Protected areas - NPW Act [18.1050] The Petroleum (Onshore) Acts 1991's relationship with the NPW Act is almost

identical to that of the Mining Act (see [18.240]), except that, owing to a minor quirk of drafting which makes reference to "any lease" under the Petroleum (Onshore) Act 1991 instead of only a "petroleum production lease", assessment leases cannot be granted in a State conservation area except with the consent of the Minister administering the NPW Act (NPW Act, ss 47J(l)(c), (3)).

Exempted areas [18.1060] The Petroleum (Onshore) Act 1991 also contains provisions which provide for an

additional Ministerial consent before any right under any petroleum title can be exercised in "exempted areas", which broadly correspond to lands reserved or dedicated for public purposes (s 70).

those then in the Mining Act) such that "nothing in or done under the EPA Act or an environmental planning instrument" operated so as to prevent the holder of a petroleum exploration or production title from carrying out any operations authorised by that title. These longstanding exemptions were removed in 2005, with the passage of the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005, which made parallel changes to the relationships between the Petroleum (Onshore) Act 1991 and the EPA Act and EPis as it did for the Mining Act (Sch 7.13). The only significant exception to this parallel approach was that no five-year transitional period was provided for its introduction to existing petroleum production leases. This was because there were so few of these leases, and none had been in existence from prior to the passage of the EPA Act in 1979. The Petroleum (Onshore) Act 1991 provides that, if development consent is required for the purpose of obtaining petroleum, then that consent must be obtained prior to the grant of a petroleum production lease (s 67). The Act also provides that a production lease cannot be granted where that would contravene the provisions of the EPA Act or any other Act (s 42(1)). The EPA Act's general requirement for landowner consent to lodge a development application under Part 4 is suspended in the case of petroleum production (s 64; EPA Regulation, ell 49(2),

"Moratorium" areas

(4)).

[18.1070] Under section 9(1)(a) of the Petroleum (Onshore) Act 1991, the Minister cannot grant

The exercise of rights under prospecting titles cannot be constrained by an environmental planning instrument other than a SEPP made after December 2005 (Petroleum (Onshore) Act

a title over an area designated by the Minister, by notification published in the Gazette, as an area

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[18.1100]

1991, s 47). The Mining SEPP (see [18.440]) and the State and Regional Development SEPP (see [18.490]) are the key SEPPs which constrain the grant of petroleum prospecting and production titles and the exercise of rights under them.

[18.1120)

chapter 18 Mining

How is hydraulic fracturing regulated? [18.1120] 'Fracking' is not currently subject to any specific legislative provisions. That is, any

proposal to £rack is assessed as part of a broader application for approval of petroleum production or petroleum exploration.

The Mining SEPP [18.1100] The Mining SEPP controls petroleum exploration and production throughout the State. Petroleum exploration is listed as development permissible without consent (cl 6(d)). Petroleum production may be carried out with consent on any land where agriculture or industry may also be carried out, with or without consent (cl 7(2)(a)). Clause 9A of the Mining SEPP prohibits the carrying out of coal seam gas development on or under the following land:

(a)

(b)

land within a coal seam gas exclusion zone, meaning: (i)

land within a residential zone

(ii)

future residential growth area land

(iii)

additional rural village land

(iv)

critical industry cluster land

The Government has recently announced a ban on the use of evaporation ponds to dispose of groundwater brought to the surface in CSG exploration or development and is further considering regulation of CSG exploration.

land within a buffer zone, meaning land that is not within a coal seam gas exclusion zone, but is within 2 kilometres of the following land: (i)

land within a residential zone

(ii)

future residential growth area land

(iii)

additional rural village land.

Petroleum production and State significant development [18.111 OJ The State and Regional Development SEPP declares as State significant development,

and therefore as development subject to the Minister for Planning and Environment's approval:

• petroleum production • development for the purpose of petroleum related works (including pipelines processing plants) that: • is ancillary to or an extension of another State significant development project, or • has a capital investment value of more than $30 million.

This means firstly that it is assessed under the provisions that govern the grant of the relevant petroleum title, or the drilling of wells under that title. This may require an "Activity Approval" under the conditions of the licence. It may also require an aquifer interference approval under the Water Management Act 2000 (see [14.1190]) (if groundwater is to be interfered with), or an environment protection licence under the Protection of the Environment Operations Act 1997 (see [9.670]) (if groundwater is to be brought to the surface and disposed of). Relevant provisions of Part 5 of the EPA Act apply to each of these approvals, unless the development also requires development consent.

and

Underground gasification of coal seams and geosequestration of carbon dioxide are also declared to be State significant development. The provisions of a petroleum production lease must be "substantially consistent" with any consent granted for State significant development (EPA Act, s 89K(l)(d)).

In September 2012, the NSW Department of Industry, Resources & Energy published a Code of practice for coal seam gas fracture stimulation (Code) which is "designed to ensure that fracture stimulation activities are conducted in a safe manner and that communities, the environment and water resources are protected" (Code, p iii) . The Code imposes various requirements, including in relation to:

• creation of a Fracture Stimulation Management Plan • stakeholder consultation • fracture stimulation design • risk assessment • safety • use of chemicals in fracture stimulation • water resources • management of flowback water

At the same time, the NSW Department of Industry, Resources & Energy also put out a "Code of Practice for Coal Seam Gas Well Integrity" to ensure:

• the environmentally sound, safe production of coal seam gas and the protection of groundwater resources • well monitoring and maintenance • the management of back flow or "produced" water from the CSG extraction process • the design of all CSG wells guarantees the safe and environmentally sound production of gas by:

- preventing any interconnection between coal seams and aquifers - ensuring that gas is contained within the well and associated pipework and equipment without leakage - ensuring isolation between different aquifers and water bearing zones - not introducing substances that may cause environmental harm

877

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[18.1130]

- requiring all chemicals used to be disclosed during the approvals process.

Petroleum development and Part 5 [18.1130] If petroleum development is permissible without consent, then it is controlled under Part 5 at points at which a Minister or public authority is required to give an approval to that development (see Chapter 6). Practically, this means the Minister's grant of an exploration licence or assessment lease would be subject to Part 5, as well as any "Activity Approval" required under the conditions of an EL or AL for particular exploration activities.

It would appear that there is now no petroleum development which is local development. However, the EPA Regulation contains provisions declaring certain petroleum production to be designated development (Sch 3, cl 27; see [14.570]).

Improved management of exploration regulation [18.1140] In 2015, the Department of Industry, Resources & Energy announced the introduction of "IMER" - Improved Management of Exploration Regulation. IMER is a non-statutory approach to improving the way in which the regulation of exploration is managed. Some of its key components include the rationalisation of 158 conditions across the petroleum, coal and minerals titles into about 13 conditions, and the inclusion of environmental management, rehabilitation and community consultation into work programs.

The Department states that from a community perspective, IMER will: serve to boost community confidence in exploration, with regulation that not only better meets risk-based needs affecting the local area, but also increases the level of compliance and enforcement by focusing on areas where the risks are greatest. From an industry perspective, IMER will: boost the NSW exploration and mining sector with significant time and cost savings resulting from more predictable regulation, more consistent application of regulation, and the elimination of duplication and overlap with existing regulatory requirements. (See: imer.)

http://www.resourcesandenergy.nsw.gov.au/miners-and-explorers/codes-and-guidelines/

Offshore exploration and mining [18.1150] Offshore exploration and mining for minerals in the coastal waters of NSW are regulated under the Offshore Minerals Act 1999.

What are coastal waters under this Act? [18.1160] The Offshore Minerals Act 1999 (s 16) defines the "coastal waters" of the State as "so much of the area described in Schedule 1 as is constituted by the first 3 nautical miles of the

[18.1190]

chapter 18 Mining

territorial sea from the baseline." Schedule 1 of Act provides a complex "metes and bounds" description of area. The "baseline" is understood with reference to the Governor-General's proclamation under section 7 of the Commonwealth' s Seas and Submerged Lands Act 1973, the latest being the Seas and Submerged Lands (Territorial Sea Baseline) Proclamation 200~ (Ct_h). The Offshore Minerals Act notes that the "baseline" is generally the lowest astronomical tide along the coast but also includes lines enclosing bays and indentations that are not bays and straight baselines that depart from the coast.

How are minerals defined? (18.1170] Unlike the Mining Act and the Mining Regulation, t~e Offs~~re Miner~ls Act_ 1999 does not define minerals individually. Instead there is a genenc defm1t10n: a mmeral 1s any "naturally occurring substance or a naturally occurring mixture of substances" (s 22). For example, a mineral may be in the form of sand, gravel, clay, limest~ne, rock, evapontes, shale, oil-shale or coal. Thus the extraction of marine sands and aggregate 1s generally controlled under the Offshore Minerals Act 1999, rather than the Mining Act. Non~t~eless, "ma~ine aggregate" remains a prescribed mineral for the purposes of the Mining Act (Mmmg Reg~latton, Schs 2 and 3). This is because the Mining Act has coverage inside the baselme (eg, m some bays and estuaries). The Offshore Minerals Act 1999 does not apply to petroleum (s 35(1)).

Forms of title (18.1180] The Offshore Minerals Act 1999 makes provision for three primary forms of title

(Offshore Minerals Act 1999, Pts 2.2 - 2.4):

1. 2.

exploration licences retention licences (akin to assessment leases)

3. mining licences. The Act also allows for "work licences" which allow licence-related activities to be carried out on blocks that are outside the licence area of the exploration, retention or mining licence concerned.

Activities in marine parks and aquatic reserves (18.1190] The Offshore Minerals Act 1999 does not apply within marine parks or aquatic reserves and it is unlawful to prospect or mine within them (Marine Estate Management Act

2014, s 54) .

• •

Despite this general prohibition: there are exceptions to allow the continuation of prospecting or mining interests_ alread'. in existence as at 1 August 1997 (in relation to a marine park) and 31 March 2002 (m rela~wn to an aquatic reserve), although they cannot be renewed or extended except by Act of Parliament

(Marine Estate Management Act 2014, s 54(3) ), under certain restrictions, it may be possible to undertake sand extraction wit~in ~ marine park for conservation purposes or for the purpose of preventing the risk of senous m1ury to a person or harm to the environment (Marine Estate Management Act 2014, ss 54(4) - (6)),

879

8 80

The Environmental Law Handbook (18.1200]

•

the Offshore M inerals Act 1999 still provides (s 38A) th t O ff h 1 • · •• a s ore exp oratron or min· act1v1t1es may be carried out under the licence . mg 1 d h or consent m waters the subject of a fishi c osure un er t e Fisheries Management Act 1994 b t 1 . h h . ng Minister administering that Act. , u on y wit t e wntten consent of the

Conditions of title (18.1200] Among other things, conditions of title may require titleholders to (ss 118 177 254)·

• lodge a secunty deposit ' ' protect the environment (including protecting wildJ'f . . . . • environment) 1 e an d mimmismg the effect on the

• repair any damage to the environment caused by activities in the licence area. The Act contains provisions (ss 38B 38C) b cl d' A ( h . . , , ase Irectly on sections 237 - 238 of the M .. ct as t en ex1stmg). The Act also pro 'd f I . mmg of the environment. v1 es or regu atrons (s 402) relating to the rehabilitation The. Offshore Minerals Regulation 2006 is very limited in sco . regulatrons are narrow (see ell 8 _ ll) H h' . pe and the environmental • owever t 1s 1s of no · I · •f· exploration and mining are permitted to tak 1 : NSW pract1ca s1gm icance unless e Pace m waters (see below).

Mining reserve: NSW coastal waters 118-1210] It is important to note that ther · . 1 titles under the Act over the coastal waters o~ ~Sc;r;~t y a decl~ratron li~i~ing the grant of all September 1968 as a reserve restricting the grant of all Is ~e~tnct10n wasdongmally established in 1906. mmmg eases un er the then Mining Act A small part of the reserve was revoked late in 1993 t . M . . . o permit etrom1x Pty Ltd t 1 cl app1icatron for leases under the Mining Act t . . o o ge an Following public opposition to the I ohmme manne aggregate offshore of Sydney. proposa, t e reserve was ha t'J bl' h Government. Transitional provisions in the ou. h M. l s I y re-esta is ed by the 5 • 11 ore mera sAct 1999 d h h. is taken to have been declared as a "reserved block" . h' h . I ensure t at t is reserve . • . . . m w 1c tit es cannot be g t cl I h M mister first mv1tes applications (Sch 2, cl 4; ss 18 74 218) Th ~an_e un ess t e exists to lodge a title application under th ou. h , M' . . us no automatic nght currently e 11 5 ore merals Act 1999 h · h . coastal waters of the State. anyw ere m t e ent1re

·

(18.1250]

chapter 18 Mining

Joint management arrangements [18.1230] The Commonwealth Offshore Minerals Act 1994 applies from the three nautical mile limits seawards to the outer limit of the continental shelf. This area is administered by a Joint Authority, consisting of the Commonwealth Minister and the relevant State or Territory Minister, but with the Commonwealth Minister's view able to prevail ((Cth), s 32(2); (NSW), s 30(1)(a)). The Commonwealth delegates day to day management of the Act (including the grant and renewal of titles) to the relevant Minister in each State or Territory, who is known as the "designated authority" ((Cth), s 29(2); (NSW), s 30(1)(6)). The designated authority in NSW is the Minister for Industry, Resources and Energy.

Offshore petroleum exploration and production [18.1240] Offshore petroleum exploration and mining in the coastal waters of NSW is regulated

under the Petroleum (Offshore) Act 1982. This Act is part of a unified system of regulation for offshore petroleum, similar to that for minerals, based on the Offshore Constitutional Settlement (see [19.110]). The Commonwealth's waters were managed under its Petroleum (Submerged Lands) Act 1967 (Cth). All States and Territories passed "mirror" legislation in 1982 based on this Act. This Commonwealth Act was repealed on 1 July 2008, and replaced by updated legislation, the Offshore Petroleum Act 2006 (Cth). This Act has since been expanded to allow for subterranean storage of greenhouse gases in suitable geological formations, and is now known as the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth). The Petroleum (Offshore) Act 1982 applies in what it terms the "adjacent area of NSW" those waters up to three nautical miles seawards of the mean low water mark (s 5; Sch 2)) . The Act makes provision (Part 4, Divs 2 - 4) for four primary forms of title: 1.

exploration permits

2.

retention leases (akin to assessment leases)

3.

production licences

4.

pipeline licences.

The Act does not apply within marine parks or aquatic reserves. The provisions relating to prohibitions under the Offshore Minerals Act 1999 (NSW) apply; see [18.1220].

Conditions of title Coordinating offshore mining in Australia (18.1220] The Offshore Mining Act 1999 is art of

.. offshore exploration and minin . h p d a prop~sed system of umfied regulation for . . g ng t aroun Australia, based on th 1979 Of£ Const1tut10nal Settlement (see [18 1240]) Th C e shore · · e ommonwealth's d' · · under its Offshore Minerals Act 1994. Each Stat cl . a Jom~ng waters are managed legislation based on this Act - in NSW th· . h eO~h Territory committed to adopt "mirror" ' is Is t e 11s ore Minerals Act 1999.

[18.1250] Titles under the Petroleum (Offshore) Act 1982 are subject to such conditions as the

Minister thinks fit (ss 34, 39H, 57, 71). The Minister can require insurance against expenses or liabilities arising from works under the title, including those for complying with directions to clean-up or remedy the effects of petroleum spills (s 97(1)). This power ordinarily replaces the need for security deposits (ss 97(3), (4)).

881

chapter 18 Mining

882

The Environmental Law Handbook

[18 .1260)

[18 .1300)

Joint management arrangements

REPs

[18.1260] The Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) applies from

(l . ] On 1 July 2009, the EPA Act was amended to repeal the power to make Regional 8 1290

the three nautical mile limit seawards to the outer limit of the continental shelf. There are joint management arrangements similar to those for minerals (Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth), ss 56(2), 59, 70 - 71; Petroleum (Offshore) Act 1982 (NSW), ss 11, 12).

Uranium mining and nuclear facilities [18.1270] The Mining Legislation Amendment (Uranium Exploration) Act 2012 amended the

Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986 to remove the long-standing prohibition on prospecting for uranium in NSW, insert uranium as a mineral under the Mining Act, allowed the Mining SEPP to apply to uranium, and permitted the granting of exploration licences for uranium. It also reserved all uranium to the State' s ownership, and barred compensation for this reservation. Mining for uranium other than in small amounts in the course of mining other minerals, remains an offence.

In September 2012, the State Government called for Expressions of Interest from parties wishing to explore for uranium in NSW. Following a two year competitive process, six companies were invited to apply for licences to explore for uranium. The Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986 continues to prohibit the construction and operation of a wide range of nuclear facilities in NSW, including reactors and reprocessing plants. There are exceptions covering the Australian Atomic Energy Commission and the storage and disposal of radioactive waste material resulting from the use of nuclear materials for research and medical purposes (s 8).

Extractive industries

· 1 Pl (REPs} Since then existing REPs have been deemed to be SEPPs (see Env1ronmenta ans · ' d [ .660)). Sydney is such a major market for extractive materials that four deemed SEPPs ad ress 3 deal with them in some detail: 1. Sydney REP 8 - Central Coast Plateau Areas 2.

Sydney REP 9 - Extractive Industry (No 2-1995)

3.

Sydney REP 11 - Penrith Lakes Scheme · la (1989) , now known properly as State Former Sydney REP 17 - Kurne ll p enmsu Environmental Planning Policy (Kurnell Peninsula) 1989

4.

Sydney REP 9 is the most important, and aims to fac~litate development of_ extractive resources close to Sydney by identifying land that contains s1gmf1Cant extractive matenals (cl 2). It contams a series of schedules and associated maps identifying a large number of extraction areas (both

existing and potential} for: or shale • clay • sand and gravel • sand sandstone • crushed rock •• hard building sandstone. d REP 9 establishes when extractive industries are permissible in these areas (ell 7, 10; SY ney . · 1 d · 1 d. ll f the McDonald Schs 1, 2, 5). It also prohibits extractive industnes on certam an , me u mg_a 0 and Colo Rivers and the Hawkesbury-Nepean River downstream of Wallac1a (cl 20; Sch 3).

A subsidiary purpose of Sydney REP 9 is to ensure that other incompatible d~velopment does not take place near the identified resources and thereby limit their future potential (Sydney REP 9, ell 14, 15, 16, 17, 18).

Permissibility

Consent authority

Mining SEPP

State Significant Development

[18.1280] The Mining SEPP (see [18.440)) provides that extractive industry may be carried out

(18.1300] State and Regional Development SEPP (see [18.490)) declares as State significant

with development consent on any land where agriculture or industry may also be carried out, with or without consent (cl 7(3)(a}).

development extractive industry which: extracts more than 500,000 tonnes of extractive materials per year

It may also be carried out with consent in any part of a waterway, an estuary in the coastal zone or coastal waters of the State that is not in an environmental conservation zone (cl 7(3)(6)). Exploration for extractive materials is not controlled by the SEPP, even as development not requiring consent.

• • extracts from a total resource (the subject of the development application) of more than 5 million tonnes .. f S · ·f e (as defined in the • extracts from an environmentally· sens1t1ve area o tate s1gm ICanc . h ·· d d · f ·d l waterways and mamtenance ?

SEPP), with exceptions for public aut ont1es r~ gmg ti a dredging of oyster lease areas, or adjacent areas, m Wallis Lake.

883

chapter 18 Mining

884

The Environmental Law Handbook

[18.1310)

The declaration also covers extractive industry related works which are ancillary or an extension of State significant developments or which have a capital investment of more than $30 million. Any extractive industry which is State significant will have the Minister as consent authority.

[18.1340)

• •

Local development [18.1310) If an extractive industry proposal is not declared to be State significant development

but still requires development consent, then it will be assessed as local development. Most extractive industry also qualifies as integrated development (see (5 .370]) due to other Government approvals that it requires (such as approvals under the Protection of the Environment Operations Act 1997, the Water Management Act 2000 or the Roads Act 1993).

Designated development [18.1320) Extractive industry proposals in specified environmentally sens1t1ve areas are

designated development (see (18.510]). This includes (Environmental Planning and Assessment Regulation 2000, Sch 3, cl 19):

• sites with an output of more than 30,000 cubic metres of extractive material a year • sites where more than a total of two hectares of land will be disturbed • sites situated:

- within 40 m of a natural body of water, wetland or environmentally sensitive area - within 200 m of the coastline.

The Western Division [18.1330) Amendments to the Mining SEPP made on 8 December 2010 repealed Western Division REP 1 - Extractive Industries. However, the key provisions of the REP were already either covered by the SEPP, or else were then included in the SEPP. For example, extractive industries were already only permissible with consent throughout the Western Division (since agriculture is permissible either with or without consent in essentially the entire Division (cl 7( 3)). Except in the limited parts of the Western Division which are incorporated as local Government areas, the consent authority is the Western Lands Commissioner.

Development for the purposes of extractive industries in the Western Division that obtain or process for sale more than 15,000 cubic metres of extractive material per year or more than 40,000 cubic metres in total are also declared as designated development, and require an environmental impact statement (cl 18A).

Other Approvals [18.1340) Subject to any exemptions afforded to extractive industries which are State significant development, extractive industry may require a variety of Government approvals, such as the following:

•

· · d · d n "waterfront land" (eg, sand or gravel extraction if the extractive m ustry is propose o . ·11 . 11 d · h. ·th. 40 m of a river or other watercourse), then 1t w1 reqmre a contra e from_w1t m or wl1 idn . 91(2) of the Water Management Act 2000 (see [14.1180]) act1v1ty approva un er sect10n . . . . if the extractive industry may interfere with an aquifer, then~t will req;1~ ;n2~iJ~if~:ee interference approval under section 91(3)) of the Water anagemen f c .f ·f · J d t ating or takmg water rom an aqm er. [14.1190]). Interfering with an aqm er me u es pene r .. . d .f · f d and road base material are specifically prescnbe as aqm er The extraction o san ) • f erence act1v1 · ·t·1es ('v'ater Management (General) Regulation 2011, c122 . . mter w, · r has noise and dust em1ss1ons, then if the extractive industry discharges to waterways, o . A 1997 ( e these are regulated under the Protection of the Environment Operations ct se Chapter 9)

. .

.

.

• if the extractive industry may disturb Aboriginal objects, then an Abongmal hentage impact permit is required under section 90 of the NPW Act (see (20.730]) • if the extractive industry is proposed on Crown land, a licence is required under the Crown •

Lands Act 1989 (Crown Lands Act 1989, ss 45, 49(3)) . . . · · d · d within a State forest a forest matenals licence 1s if the extractive m ustry 1s propose , required under section 42 of the Forestry Act 2012 (see [13.540]).

8 85

19 Fisheries and aquatic ecosystems Professor Warwick Gullett Dean of Law University of Wollongong

The development of fisheries law in NSW ................................................................................................. (l 9.30J Where do NSW fisheries laws apply? .......................................................................................................... (l 9.90J General fisheries management ..................................................................................................................... ( l 9. l 20J Recreational fishing .............................................................................................................................................. (l 9.200J Indigenous fishing rights ................................................................................................................................... [l 9.270J Commercial fisheries management ............................................................................................................ (l 9.320J Management strategies and environmental assessments ........................................................... (19.560J Enforcement ............................................................................................................................................................. (l 9.620J Aquaculture .............................................................................................................................................................. [l 9.670J Protection of aquatic habitats ......................................................................................................................... (19.81 OJ Threatened species conservation ................................................................................................................. (19. 91 OJ

88 8

The Environmental Law Handbook [19.10]

ln this Chapter, th e "Act" generall!J refers to the Fisheries Mono "M. .. f gement Act 1994 and 1rnster re ers to the Minister administeri·ng th·Is Ieg1s · I · . .the . at1on currently the Mm1 ster for Pnmary Industries. ' [19.10] Fisheries law, like environmental law is not discrete Even th · • • mean the rules and regulations that have bee~ d l d . l hough It is typically taken to law extends much wider and includes 11 l evhe op_e to contro t e catching of fish, fisheries . , a aws t at m some way appl t h h · protect10n of fisheries resources, both freshwater and marine. y o t e arvestmg and

This chapter reviews the princ · I I l · NSW and the arrangements for s~~:ed ~~~ r~gu atmg commercial an~ re~reational fishing in Commonwealth and NSW It l IS_ enes management for certam fisheries between the · a so exammes areas that are t · l h h . uncertainty, including offshore native title and aquaculture hor w e7 t ere_ is legal protection of aquatic areas and threatened species. . e c apter a so reviews the

i;ca

In some cases, NSW fisheries laws a I to · h · typically define "fish" t b . pbp y s_pec1es t at are not fish. Although scientists o e aquatic verte rates with gills fins a d l NSW l broader definition, which includes o sters an '. n sea es, aw provides a (such as starfish and sea urchins) be:chworm~ ~t~e~ aiuatJC mo!lusc~, cru~taceans, echinoderms mammals reptiles birds and am' . . n ot er aquatJC ammal life" (although whales, s 5). ' ph1b1ans are excluded) (Fisheries Management Act 1994 (NSW), Most fisheries laws are contained · th I · I · may be fished how they may be f. hmd edehg1s ation and regulations that specify which species ' is e , an ow many may bet k Th C . . significant role in dividing legislative competence o ff h a en. b e onst1tut1on plays a State parliaments. The common la . ver o s ore a_reas etween the federal and public right to fish and offshore n::;~;;;~es federal and State legislation. Key areas include the The bulk of the l · · d· h . aw is contame Ill t e Fisheries Management Act 1994 (NSW) d l . and statutory mstruments made under it . . . . an regu at10ns Regulation 2010 (FM Reg). ' m particular the Fisheries Management (General)

Fisheries in NSW

(19.50]

chapter 19 Fisheries and aquatic ecosystems

The tensions that can exist between commercial and recreational fishers highlight the importance of carefully integrating environmental, economic and social concerns in the management arrangements for NSW's fisheries resources.

The development of fisheries law in NSW [19.30] NSW' s first fisheries legislation, the Fisheries Act 1865, was enacted in response to declining numbers of fish in Sydney Harbour. The Act prescribed the maximum length and minimum mesh size of nets that could be used in newly created summer and winter fishing periods and prohibited the fixing of nets within one mile of the shore or at the mouth of a river (s 2). The Act contained seven sections and ran to less than two pages: a stark contrast with the current Fisheries Management Act 1994, which contains 291 sections plus 14 schedules and numerous regulations. Fisheries legislation tends to be updated and amended frequently, typically as new fisheries open up or as fishing practices emerge that need to be regulated. The 1865 Act received its first amendment in 1867, to avoid the minimum mesh size applying to prawn fishers. Amendments to NSW fisheries legislation have been continuous since then. New Acts were passed in 1881, 1902 and 1935 (the Fisheries Act 18 81, the Fisheries Act 1902 and the Fisheries and Oyster Farms Act 1935). The current Act replaced the Fisheries and Oyster Farms Act 1935 and entered into force on 16 January 1995. It has been amended a number of times every year since.

Objectives of the Fisheries Management Act [19.40] In fisheries management, as in other natural resource management areas, perhaps the most complicated issue is how to decide what level of exploitation or harvesting to allow in particular cases, and the conditions under which it may be permitted. The Fisheries Management Act 1994, like most Acts, contains an objectives section that provides guidance as to how substantive decisions under the specific provisions are to be made. It provides that the objects of the Act "are to conserve, develop and share the fishery resources of the State for the benefit of present and future generations " (s 3(1)).

[19.20] NSW has ten major commercial fisheries:

• estuary general • estuary prawn trawl • ocean hauling • ocean trap and line • ocean fish trawl • abalone • lobster • inland restricted • sea urchin and turban shell restricted • developmental commercial

There is also an expanding recreational fishing sector.

Ecologically sustainable development [19.50] The key underpinning objective of the Act is ecologically sustainable development. This is consistent with fisheries legislation elsewhere in Australia. The Act specifically mentions that its objects include the promotion of ecologically sustainable development (s 3(2)(c)) (see [1.190]), as well as the conservation of fish stocks, fish habitat and threatened species (s 3(2)(a), (b)).

• • • • •

The Act also identifies secondary objects. These objects are to: promote viable commercial fishing and aquaculture industries promote quality recreational fishing opportunities appropriately share fisheries resources between the users of those resources provide social and economic benefits for the wider community of NSW recognise the spiritual, social and customary significance to Aboriginal people of fisheries resources and to protect and promote the continuation of Aboriginal cultural fishing.

889

890

The Environmental Law Handbook (19.60]

[19.110)

chapter 19 Fisheries and aquatic ecosystems

The Act thus sets out:

• •

first. order objectives, which relate to the conservation of f"sh · d . 1 enes resources an the manne environment

Braithwaite v Minister for Primary Industries [2006] NSWADT 305; however, not all decisions of the Fisheries Department can be reviewed: Bailey v NSW Department of Primary Industries [2009] ADT 152).

second or:er objective~, which promote community benefits through utilisation of marine resources or commercial, recreational, economic, social and cultural benefits.

Where do NSW fisheries.laws apply?

f

(19.90] Determining the area to which NSW fisheries laws apply is a complicated matter. It depends on the species that are to be fished and how they are to be fished.

The precautionary principle

9-~0~ A (notetorthy aspect is that the precautionary principle is specifically mentioned in the eg1s at1on ~ee 1.220]). However, the principle is not located in the main objectives provision of the Act (as IS the case m other Australian jurisdictions which include the principle: see Fisheries Management Act 1991 (C~h), s 3(1)(6), Fisheries Act 2000 (ACT), s 3(6), Fisheries Act 1994 (Qld), s 3(1), (5) and Fisheries Management Act 2007 (SA) s 7(5)) b · · • · · b ·d . , , ut m sect10n 30 under which It 1s to e cons1 ered m the setting of total allowable catches. '

The importance of the Act's objectives Recognising priorities [19.70] The challenge for fisheries managers is to ensure that their d · · · · th l · l · , • b ecis10ns are consistent with e eg1s at1on s ~anous o jectives, which in some circumstances can be seen as conflictin fo example, the obiects to "conserve" as well as to "develop" f. h ) g( r . . 1s ery resources . However the f h structure o t e ob1ect1ves section in the NSW Act arguably k · · (f '. . b. . . ma es 1t easier or example) to give a conhser_vation o Ject pnonty over an economic object than is the case under the federal Act (the Fts erzes Management Act 1991 (Cth) 3) Th l f l · · . . , s • e ro e o eg1slat1ve objectives is to aid the i:ter_pretat1?n of ot~er sections in the Act, but they are also important for shaping the culture of a _mm1stiradt10n ~n t e relevant management authority (in this case, the NSW Department of Pnmary n ustnes).

Legal challenge and judicial review [19:80] ~he objectives of the Act can also provide the basis for a legal ch 11 dec1s10ns 1f it can be argued th h . a enge to management . . . at t ey were made ma manner inconsistent with those ob·ectiv ~~:c~~mp_le, m !etermmmg a tot~l allowable catch in a commercial fishery, the Total ettmg an R~v_1ew Corrumttee must, among other things, "give effect to" the ob·ects of the Act (s 30(1)). Dec1s1ons ca~ be challenged by way of judicial review (see [2.360]). An e;am le

Aliowa:t~

~;9t;;) ~;~~;~~;al: le:el, IS Bannister Quest v Austra~ian Fisheries Management Autho~it; ·. not _er course, where It 1s available, 1s specialist merits review tribunals or courts. In NSW, ments review of fisheries matters can be heard in:

• ~etnzster ~and /nd Environment Court (see for example Sustainable Fishing and Tourism Inc v ,or Fisheries [2000] NSWLEC 2), or • the Ci_vil and Ad~inistrative Tribunal (Fisheries Management Act 1994 , s 126.

Admmzstratzve Decisions Review Act 1997 (NSW) 5( ) 8 ' M · ' ss a , , 55(1); see for example usumecz v NSW Department of Primary Industries [2008] NSW:ADT 129 d d. · • n. an 1scuss10n Ill

NSWwaters [19.100] The mean low water mark is the territorial limit of NSW. The Fisheries Management Act 1994 applies to all waters within this limit (s 7(1)(a)). However, States also have legislative power and title to three nautical miles from the territorial sea baseline (generally located at the point of lowest astronomical tide), allowing NSW to make fishing laws in relation to this area (Coastal Waters (State Powers) Act 1980 (Cth), ss 4, 5; Fisheries Management Act 1994, s 7(1)(6)).

This situation was brought about by the 1979 Offshore Constitutional Settlement. The States, the Northern Territory and the Commonwealth all passed complementary legislation to overcome the problems created by the 1975 decision of the High Court of Australia in NSW v Commonwealth (1975) 135 CLR 337. Since colonial times it had been widely assumed that the territorial limit of the States extended to three nautical miles from the low water mark, but the High Court held that it ends at the low water mark. This decision sparked confusion as to the validity of State and Territory offshore fisheries law. The Offshore Constitutional Settlement, which came into effect in 1983, enabled the States and the Northern Territory to "reclaim" the area that had been "lost" to them by the 1975 High Court decision. Their legislative competence within the three nautical miles area is now unchallenged, although the common law position remains that NSW territory ends at the mean low water mark.

Fisheries beyond NSW waters [19.110] NSW may regulate fishing outside its three nautical mile "coastal waters" under

Offshore Constitutional Settlement arrangements. These provide that if a fishery is fished by people residing in only one State, that State should have jurisdiction for the entire fishery, rather than dividing management between the State and the Commonwealth at three nautical miles. Thus, some States manage particular fisheries to the outer edge of Australia's exclusive economic zone (EEZ), located at a maximum distance of 200 nautical miles offshore. In other cases, the Commonwealth manages fisheries within three nautical miles (eg in the southern bluefin tuna fishery off all States and Territories except NSW and in the eastern tuna and billfish fishery off Tasmania, Victoria and Queensland; see Fisheries Management Act 1991 (Cth), s 76). In January 1991, NSW signed 18 agreements with the Commonwealth to gain management power beyond three nautical miles for all major commercial fisheries, including shellfish, with the

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[19.120]

exception of tuna and squid (Commonwealth of Australia Gazette - Government Notices Jan-Mar 1991 _(No 1-12) No GN 2, Wednesday 16 January 1991, p 191). As a result, NSW fisheries laws m areas north of Sydney now extend to the " new " Offsh ore Const1tut10na · - l Settlement (OCS) line, which is at the 4,000 metre depth contour (roughly located between 80 and 130 kms offs~ore). In_ areas south of Barrenjoey Head (approximately 30 kms north of Sydney), the OCS lme remams at three nautical miles offshore. This means that for example th NS~ ocea~ trawl fishery extends up to 80 nautical miles offshore north of Syd~ey but only thre: nautJCal miles offshore south of Sydney Each of the 18 OCS arrangeme t · · ·d · l · n s 1s m I entJCa terms (apart from the species of fish concerned and method of catch). These arrangements allow NSW to manage the f" h · h Off h 1s enes to t e s ore Constitutional Settlement line, with two exceptions:

• fishing by purse-seining and pelagic longlining • fishing by Danish seining and trawling in waters south of Barrenjoey Head.

For these fishing methods, such as in its eastern tuna and billfish fishery, the Commonwealth has manage~ent responsibility from the outer limit of the coastal waters (three nautical miles) to ~he_ o~t~r limit of the exclusive economic zone (200 nautical miles). This means that the Junsd1Ct10nal arrangements for some species remain inconvenient. For example, commercial take ~f gummy and school shark within three nautical miles comes under the NSW ocean fish trawl fishery, and those_ taken outside three nautical miles come under the Commonwealth southern and eastern scalefish and shark fishery. The Commonwealth has achi·eved · 1 · · d" · a smg e iuns JCtlon arrangement for these species with Victoria, Tasmania and South Australia but not NSW. _Likewise, some species taken in the NSW ocean trap and line fishery within three nautical miles (eg blue-eye _tuna) are also taken in the Commonwealth's eastern tuna and billfish fisher beyond three nautJCal miles. y

General fisheries management [19.120~ Most of the fisheries management powers in the Fisheries Management Act 1994 are located m Part 2, General fisheries management. This Part allows for:

• the declaration of areas closed to fishing • the making of regulations regarding -

prohibited size fish bag limits protected fish waters protected from fishing the regulation of fishing equipment

• the prohibition of trafficking of specific species of fish • the setting of fishing quotas. It also_ co~ta~ns fee_ requirements for recreational fishers and authorises the acquisition of commercial fishmg entitlements and businesses.

[19.150]

chapter 19 Fisheries and aquatic ecosystems

Fishing closures [19.130] The most important tool available to the Minister to protect fish or fish habitat is the

power in section 8 to prohibit fishing absolutely or conditionally from any area. This is a broad power, which is not specifically linked to any particular objectives, but is considered an important fisheries conservation tool to maintain health and balance of ecosystems. The ambit of section 8 was considered in Professional Fishers Assoc Inc v Minister for Fisheries [2002] NSWCA 145 (see [19.600]). A general power to close commercial and recreational fishing is also provided in sections 20 and 20A. Fishing closures may be declared initially in newspapers or by radio or television broadcast where they are required urgently. It is an offence to take or be in possession of fish in contravention of a fishing closure. However, a defence is available to a possession charge where the person did not know and could not reasonably have known that the fish had been taken in contravention of a fishing closure (s 14(3)).

Take and possession offences [19.140] Various "take" and "possession" offences are established and a person may be liable for both. The Fisheries Management (General) Regulation 2010 prescribe both the size limits and how to measure different species of fish (eg cl 11(3)). Defences to take and possession offences include (Fisheries Management Act 1994, s 21):

• •

where the fish were lawfully taken under an aquaculture permit, or in some circumstances, where they were lawfully taken from outside NSW.

This second defence reflects the principle of mutual recognition of other jurisdictions' fisheries law, but it does not apply to protected fish declared under section 19 (s 21(2)). The onus is on both recreational and commercial fishers to be able to:

• •

identify the species they have caught, and to accurately measure such fish where they are of a species of which only certain sizes are permitted to be taken.

Toking fish (19.150] Section 4 defines "take" fish as including:

• • •

catching or killing fish gathering or collecting fish removing fish "from any rock or other matter".

Attempting to do any of these activities is also to "take" fish. The principal offences are those of taking:

• fish from closed waters (ss 14(1), 20(3)(6), 20A(3)(b)) • more fish than the daily prescribed limit, including in circumstances of "aggravation"

(s 17(2), (2A)), protected fish (ss 19(2), 20(3)(a), 20A(3)(a)), taking of which is generally prohibited absolutely

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[19.160)

fish protected from commercial or recreational fishing, either conditionally or absolutely, by means of regulations or declaration (ss 20(3), 20A(3))

[19.190)

chapter 19 Fisheries and aquatic ecosystems

legislate against criminal acts involving fisheries resources or what is now more popularly called "fisheries crime". The maximum penalty is 10 years ' imprisonment and a fine up to 10 times the market value of the fish the subject of the offence (ss 21A- 21C).

Provisions on circumstances of "aggravation" are generally related to priority species of fish (s 17(2B), Sch lB). It is a defence to a taking offence if the person establishes that they took immediate steps to "return the fish to its natural environment with the least possible injury" (s 36(1)). This reflects the point that generally you do not become aware that you have caught an undersized fish until you have lifted it from the water, and, in some circumstances, measured it. Thus it only becomes an offence if the person delays returning the fish to the water.

Possessing fish [19.160] It is an offence to possess:

• • • • • • •

fish taken in contravention of a fishing closure (s 14(2)) protected fish (s 19(3)), where possession is prohibited absolutely more fish than a prescribed possession limit, including in circumstances of "aggravation" (ss 18(2), (2A), (2B), 16(2)) illegally taken fish (s 35(1)) (s 35 declares that "illegally taken" includes fish taken in contravention of fisheries laws of the Commonwealth, or of other States or Territories). Protected fish may be either: a protected species (s 19; listed in FM Reg, cl 5) a species of a particular size (s 16(1)) an unlawful quantity of a particular species (s 18(1))

For convictions under sections 16(1) and 18(2), see Director-General, Department of Primary Industries v Schembri [2009] NSWSC 1006). Most of the convictions for fisheries offences prosecuted in NSW relate to the offences of taking protected fish or possessing an unlawful quantity. The only NSW case law on what constitutes possession is the old decision of the Court of Criminal Appeal in R v Korsman (1947) 64 WN (NSW) 123.

Trafficking in fish [19.170] A new offence of trafficking in fish was introduced in 2010. This is where a person dishonestly takes, sells, receives or possesses certain fish of a certain quantity. These species of fish listed in Schedule 1C of the Act (Blacklip abalone, Eastern rock lobster, and Murray cod) are largely sold for premium prices and subject to high incidence of unlawful fishing activities and illegal trade. This amendment stems from Mick Palmer's review of the fisheries legislation and practices in NSW under the Report on Illegal Fishing for Commercial Gain or Profit in New South Wales (2004) whose findings were endorsed by the Australian Institute of Criminology (AIC) in A National Study of Crime in the Australian Fishing Industry (2007). The AIC study recommended a nationally consistent approach to fighting illegal fishing. The Act's provisions on trafficking in fish address issues of possible involvement of organised crime syndicates in the capture and trade of high value species, making Australia one of the first countries in the world to

Miscellaneous provisions [19.180] Section 40 provides a broad power to make regulations relating to _a wide range_of

activities. These are contained in the Fisheries Management (General) Regulation 2010, which covers matters such as: determining the priority between fishers engaged in fishing activities in the same area (ell

• 62- 63) • prohibiting the use of explosives, electrical devices and other dangerous substances to take fish (ell 70 - 74) • measuring fishing gear (ell 57 - 58) • tagging of fish (cl 75) • interference with fishing activities and set fishing gear (ell 65 - 69) • displaying identification on fishing boats (cl 138(1)(6)). Since 2010, it is an offence for a boat not licensed under the Act to be marked as a "LFB" (licensed fishing boat) (cl 146). The Minister is given a broad power to issue various kinds of special permits to allow the taking or possession of fish that would otherwise contravene the Act. These include (s 37):

• scientific research permits (eg to collect samples of marine organisms to assess their potential to be used for pharmaceutical applications) • aquaculture purposes • permits to collect species for aquariums • indigenous cultural fishing purposes. Administration

(19.1 90] Part 8 of the Act establishes a Fisheries Administration Ministerial Corporation and

authorises the Minister to acquire certain land for the purposes of the Act (ss 222B, 223 ). The Minister may carry out or assist research, such as, establishing scientific stations (s 225). The Minister is authorised to establish advisory councils for various sectors and establish management advisory committees for fisheries (ss 229,230). Trust funds are established (s 233) for:

• recreational (freshwater) fishing • recreational (saltwater) fishing • commercial fishing • charter fishing • fish conservation • aquaculture. Trust funds are used to support activities necessary for effective fisheries management such as:

•

fishing enhancement programs

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• habitat protection and rehabilitation • fishing facilities • education • research • enforcement.

(19.220]

• •

chapter 1 9 Fisheries and aquatic ecosystems

three days ($7) one month ($14)

• one year ($35) •

three years ($85). A recreational fishing fee concession is available for the Tweed River area . The maximum penalty for not paying the fee is 20 penalty units (s 34](1)).

Recreational fishing NSW or Commonwealth law? [19.200] With respect to recreational fishing from Australian boats, NSW law is declared to extend "to any waters to which the legislative powers of the State extend with respect to such activities" (s 7(1)(d)). This reflects the extraterritorial legislative competence doctrine, which says that State powers are not limited by any specific distance from the coast but by the connection between the activity and the affairs of the relevant State (see Port MacDonnell Professional Fisherman's Association Inc v South Australia [1989] HCA 49 at [30]). It has not been judicially determined how far this extends: it could be some distance within 200 nautical miles or, more likely, some distance beyond.

Specific rules and regulations apply separately for recreational fishing in saltwater and freshwater, particularly on bag and size limits, fishing closures and restrictions, as well as permitted and prohibited methods and activities. The NSW Government updates these rules in order to ensure that current needs and expectations of the recreational fishing community are reflected, while maintaining the sustainability of this sector for future generations. A number of changes to recreational fishing rules came into effect on 3 November 2014, including changes to bag limits for some species.

You must have the official receipt for payment of the fee in your possession while you are fishing (s 34](2)). A person who is in possession of fishing gear on or adjacent to the water is presumed conclusively to be taking fish from those waters (s 34](3)). This would mean, for example, that walking down a pier with a recreational fishing rod and associated gear (line and hooks) would be taken to be fishing recreationally. The fee generally entitles recreational fishers to use up to four fishing rods or handheld lines with no more than three hooks attached to each line or no more than three treble hooks attached to a lure (FM Reg, cl 46(1)(a) - (6)). Up to three "gangs" of hooks can be used, so long as no "gang" comprises more than five hooks (cl 46(1)(c)). The maximum penalty for breaching these conditions is 100 penalty units (cl 46(1)).

Exemptions [19.220] The main categories of persons exempt from paying the fee are (s 34C(2)):

• people under 18 years of age • people assisting a fisher under 18 years of age using a single rod or line • people taking fish in accordance with a licence, permit or other authority • recreational fishers who hold fishing fee exemption certificates • persons taking fish under an aquaculture permit or from an aquarium

The recreational fishing fee

• people taking fish from a body of water of a class exempted by regulations (see cl 79).

[19.210] A dramatic development in recreational fisheries management occurred in NSW on 23 March 2001 with the introduction of the mandatory recreational fishing fee. This was in response to:

Another significant exemption is that indigenous people need not pay for a recreational fishing permit (s 34C(2)(f); see [19.290]). (Before April 2010, indigenous people were only exempted if they were fishing in fresh water or taking fish under an approved native title right or interest.)

• the growing popularity of recreational fishing • greater awareness of the impact of this level of fishing on fish numbers • recognition of the fact that fish are a public resource.

The purpose of the fee is to provide revenue to assist in the management of recreational fishing. Fees are paid into a recreational fishing trust fund rather than into general consolidated revenue. The Act was amended to require people engaged in recreational fishing to be "licensed". (Note that the Act refers to a "fee" but all publicity material refers to a "licence".) Although this was nothing new in terms of freshwater fishing, it was a dramatic change for saltwater fishing. A fee can be paid (s 34E) for periods of:

There are other exemptions under the Fisheries Management (General) Regulation 2010, including: pensioners (provided they are in possession of their valid Commonwealth pensioner concession cards while fishing or can produce them within a specified time (cl 80(1)(a), 80(2))

• • fishers assisting a person under 18 years of age to take fish using single dip or scoop net (prawns) (cl 80(1)(6)) • fishers engaged in bait gathering, shore-based fishing or other activity ancillary to guided, recreational charter fishing (cl 80(1)(c): see Charter fishing at [19.250]).

A person fishing in a private dam with a surface area of two hectares or less is also exempted from paying a recreational fishing fee.

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Recreational fishing havens [19.230) Thirty recreational fishing havens (a term that does not appear in the Fisheries

Management Act 1994) have been declared in 27% of NSW estuaries. Commercial fishing is banned in the havens (s 20(2); see also FM Reg, cl 9, Sch 3 ), but recreational fishing is permitted. The havens are distinct from:

• aquatic reserves (Marine Estate Management Act 2014, ss 33 - 38; see (19.820]) • marine parks (Marine Estate Management Act 2014, ss 22 - 32; see (19.860]) • waters prescribed as closed to spearfishing (FM Reg, Sch 6) • areas closed to various forms of fishing, and sometimes all fishing (declared under s 8).

More than 200 commercial fishers who were previously entitled to fish in these areas had their licences bought by the government from funds generated by the recreational fishing fees.

Public right to fish [19.240) The Fisheries Management Act 1994 authorises people to fish in rivers and creeks

above tidal influence where the bed of those waters is privately owned (see (14.1040]), provided they are in a boat on those waters or are on the bed of those waters (s 38). Such fishing remains subject to other provisions in the Act, including that fishers be licensed. Fishing in exercise of this right can lead to tensions with landowners. No other Australian jurisdiction has a similar provision to section 38. Its purpose is to extend inland a fishing right of a similar nature to the ancient common law public right to fish (which applies in tidal waters; an equivalent right may apply in waters above tidal influence by acquiescence of the Crown where the bed of the waters is owned by the Crown: see note in s 3 ). However, following the High Court's decision in Northern Territory of Australia v Arnhem Land Aboriginal Land Trust [2008] HCA 29, there is reason to doubt the continued existence of the common law right to fish in NSW.

Charter fishing

[19.280]

chapter 19 Fisheries and aquatic ecosystems

NSW legislation (19.260) Part 4A of the NSW Fisheries Management Act 1994 deals with charter fishing. The

Part was inserted into the Act in 1998 and was amended in 2004, 2006 and 2009. Part 4A defines "charter fishing boat" as a boat used for recreational fishing under an arrangement made by the persons using the boat, which requires the giving of a payment or other consideration for the right to fish from the boat (s 127A). Certain types of charter fishing boats need to be licensed (s 127B(l)). These are generally :ho~e used for "guided recreational charter fishing" which is where payment or other cons1derat10n 1s provided for the operation of the boat or for guidance or instruction in fishing operations (cl 223). In most cases, these boats need to be registered if they involve (cl 225):

• • • •

estuarine fishing nearshore bottom fishing and sportfishing gamefishing deep sea bottom fishing.

Operators of licensed charter fishing boats are required to pay an annual fee (FM Reg, reg 226) and keep comprehensive catch records (s 127E, reg 238).

Indigenous fishing rights [19.270] An important and unresolved issue in Australia is the extent to which indigenous fishing rights can be recognised under the common law and native title legislation (s_ee Chapter 20) and how they relate to the operation of statutory fishing laws and regulations. While there have been numerous convictions of indigenous people in NSW for fisheries offences, there has been only one appeal in NSW on the basis of native title to a higher court. The 1994 case of Mason v Tritton (1994) 34 NSWLR 572 followed soon after the landmark 1992 High Court Mabo case (Mabo v Queensland (No 2) [1992] HCA 23) in which it was held that native title rights could survive the assertion of Crown sovereignty. Since Mason v Tritton (1994) 34 NSWLR 572 was decided, the High Court in Commonwealth v Yarmirr [2001] HCA 56 has confirmed that common law native title rights can extend to offshore areas and that they may include fishing rights, with the important proviso that such offshore native title rights do not amount to exclusive possession of the area over which they apply.

Commonwealth or State?

Case study: Mason vTritton (1994) 34 NSWLR 572

[19.250) The States have assumed a significant role in the management of charter fishing. In

[19.280) In Mason v Tritton (1994) 34 NSWLR 572, the appellant, an indigenous

2004 the Fisheries Management Act 1991 (Cth) was amended to reclassify charter fishing from commercial to recreational fishing. This was to enable charter fishing to be managed generally at the State level rather than at the federal level. The amendment was prompted by the conclusion in the 2003 Review of Commonwealth Fisheries Policy that the Commonwealth arrange for the day-to-day management of charter fisheries to be undertaken by the States and the Northern Territory (Commonwealth Department of Agriculture, Fisheries and Forestry, Looking to the future: a review of Commonwealth fisheries policy, June 2003, p 27).

man, contested a conviction for illegally possessing and shucking 92 abalone harvested near Narooma on the South Coast. He claimed that he had a native title right in accordance with the principles set out in the Mabo case, and this included a "right to fish" coastal waters in the area, which meant that the requirement under the Regulations to have a permit to take abalone and be limited to taking 10 per day did not apply to him.

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The NSW Court of Appeal unanimously rejected this claim. This was because the appellant had not satisfied parts of the test for claiming native title enunciated in Mabo. While it was not doubted that indigenous people were fishing in the coastal ~e~s o~ NSW prior to European settlement and the appellant's family had been fishing m ~he area since the 1880s, the appellant could not provide evidence that he was ~dhermg to or comply~g with any customary law in the Aboriginal community relatmg to ~balone harvestmg. Also, because it appeared that the appellant was actually sellmg aba_lone ~eat to the general commercial fish market, the "right" that was actually exercised did not fall within traditional customs on which native title must be based.

The Native Title Act [19.290] The C~m~on~ealth Nati~e !itle ~ct 1993, among other things, aimed to put to rest any doubt that frshmg nghts fall w1thm native title - although, as shown in Mason v Tritton (l 9 94 ) 3 4 NSWLR 572, the problem of proving them remains a significant obstacle (especially bec~use the Act de~ers to t~e commo~ law with respect to how they are recognised (s 223(l)(c)). Sectron 223(2) defmes native title to mdude fishing rights and section 211 provr·des th t · · · ·l 1· a persons exercrsmg a natrv~ tit e c arm do not need to hold a Commonwealth or NSW licence to fish where they do so for_th~1r own personal, domestic or non-commercial communal needs (except where a law confers f~shm~ nghts only for indigenous people or Torres Strait Islanders (s 21l(l)(c)). 1:o~e)ver, native title holders are subject to laws of general application (such as bag and size 11m1ts .

This means _t~at the protection afforded by section 211 is that native title fishing activities cannot_ be proh1b1ted where non-nati~e title ~alders may be authorised to carry out the same type of ~1shmg (although ~urther exceptions exist with regard to fishing authorised for research, environmental protection, public health or public safety purposes (s 21l(l)(ba)). The Native Title ~cU993 does n~t ena~le native title fishing rights to be exercised in areas completely dosed to frshmg nor does rt pro~1de a defence to fisheries offences (except, in appropriate circumstances a charge · d1genous . ' . . of not possessmg a NSW . recreational fishing licence - altho ugh m peop le are specrfrcally exempted from paymg the NSW recreational fee (Fisheries Management Act 1994 s 34C(2)(f)) . ' ~he ~isheries Management Act 1994 contains no express intention to extinguish common law native title.

Cultural fishing [19.300] In 2010, as a result of the Review of the New South Wales Indigenous Fisheries Strategy by Tyagarah Consultants, the Fisheries Management Act 1994 was amended t and · d· . . o protect promo~e m 1genous cultural f1sh1~g (Fisheries Management Amendment Act 2009 (NSW)). It does this m a_wa~ that does not _require proof of the existence of a native title right to fish. This made NSW leg1slat10n more consistent with fisheries legislation in some of the other States and

[19.300]

chapter 19 Fisheries and aquatic ecosystems

Territories in which traditional fishing activities (separate from native title) are recognised (eg Fisheries Act (NT) s 53(1), Fisheries Act 1994 (Qld), s 14, Fisheries Management Act 2007 (SA), s 60). One object of the Fisheries Management Act 1994 now is "to recognise the spiritual, social and customary significance to Aboriginal persons of fisheries resources and to protect, and promote the continuation of, Aboriginal cultural fishing" (s 3(2)(h)). "Aboriginal cultural fishing" is defined to mean "fishing activities and practices carried out by Aboriginal persons for the purpose of satisfying their personal, domestic or communal needs, or for educational, ceremonial or other traditional purposes, and which do not have a commercial purpose" (s 4(1)). "Aboriginal person" means a person who is an Australian Aboriginal, identifies as an Aboriginal person and "is accepted by the Aboriginal community as an Aboriginal person" (s 4(1)). The manner in which the protection and promotion of indigenous cultural fishing is given effect is by explicitly authorising the Minister to issue section 3 7 fishing permits or special permits (see above) for "Aboriginal cultural fishing purposes" (s 37(l)(cl)). The Fisheries Management Amendment Act 2009 provides further protection of indigenous cultural fishing in section 21AA. This Special Provision is not yet in force, but provides for the removal of take and possession bag limits for indigenous people if the fish are taken or possessed for the purpose of indigenous cultural fishing (although this may be subject to limitations in regulations) . Thus, certain cultural fishing may be authorised without the need to obtain a permit; however it does not mean that other regulations can be ignored, such as size limits and prohibition on the use of explosives. Regulations adopted in relation to this section may also specify restrictions as to the quantity of fish of a specific or specified class of species. Neither section 21AA nor a section 37 permit for indigenous cultural fishing purposes authorises fishing where this would be inconsistent with native title rights and interests under an approved determination of native title or with the terms of an indigenous land use agreement (ss 21AA(8), 37(8); see [20.390]). Special permits issued under section 37 also do not authorise the taking of threatened species (s 37(7); see threatened species at [19 .910] .) In 2011 an Aboriginal Fishing Advisory Council was established under s 229. The Council has the responsibility to advise the Minister on indigenous fishing issues (see Fisheries Management (General) Regulation 2010, cl 289). The NSW Department of Primary Industries, together with the Aboriginal Fishing Advisory Council, undertook state-wide consultations for the development of cultural fishing regulations which at the time of writing is under review. While these regulations are under development, the Aboriginal Cultural Fishing Interim Access Arrangement (ACFIAA) (INT14/90930) issued by the NSW Department of Primary Industries is in operation. The ACFIAA applies to all waters from which recreational fishing is permitted including appropriate zones of marine parks and aquatic reserves. It provides that the amount of fish allowed to be taken or possessed by an individual Aboriginal person for the purpose of cultural fishing is double that of the current recreational bag take and possession limits. However, there are specific daily take and possession limits applied to specific species listed under the ACFIAA, which includes abalone, flathead (other than dusky flathead), bream and tarwhite, tailor, blue swimmer crab, trevallies, luderick (blackfish), and Murray cod. The shucking of abalone, rock lobster and turban shell within 100 metres of the high water mark is also allowed if the fish are consumed in the area. A special authority issued under section 37 applies to Aboriginal fishing for large cultural gatherings and ceremonies, especially if the needs are in excess of what the ACFIAA provides. The

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purpose of this provision is to enable Aboriginal people to take fish outside the rules of commercial and recreational fishing to satisfy cultural needs. A separate application form for obtaining this special permit requires the submission of specific information three weeks before the gathering, ceremony or event. Cultural fishing may also involve the taking of finfish and invertebrates that are indigenous to the estuarine and marine waters of marine parks. This is subject not only to the Fisheries Management Act 1994, but also the Marine Estate Management Act 2014. Sections 22 and 33 of the Marine Estate Management Act 2014 provides for the Aboriginal cultural use of marine parks and aquatic reserves. Cultural fishing contrary to the above may still be authorised under a marine parks permit; however, such permit cannot authorise activities contrary to the Fisheries Management Act 1994. The NSW Marine Park Authority established three processes to support the cultural use of fisheries resources in marine parks (NSW Trade .& Investment, Aboriginal Engagement and Cultural Use of Fisheries Resources in NSW Marine Parks Policy, 16/4/2015, p 12):

• establishment of special purpose zones within marine park zoning plans • development of Cultural Resource Use Agreements between the Marine Park Authority and eligible Aboriginal people • event specific marine parks permit to individuals or groups.

In general, event-based permits do not allow fishing in sanctuary areas, the harvesting of protected species, or use of fishing gear or methods that are not allowed in the marine park zone where the activity is to occur.

Traditional or commercial fishing? [19.310] Except for authorised cultural fishing (above) (which cannot have a "commercial

purpose"), indigenous people engaging in traditional fishing in areas where recreational fishing is not permitted, or who exceed recreational fishing limits (except where permitted under s 21AA and ACFIAA), are liable for conviction for unlicensed commercial fishing. In the first place this is because such activities would be in contravention of prohibitions on unlicensed commercial fishing. In the second place, commercial fishing activities do not fall within the ambit of native title rights recognised at common law or in the Native Title Act 1993 (Cth) (Native Title Act 1993, s 211(2)(a)), and therefore could not be the basis of a successful common law defence. Significantly, there is a rebuttable statutory presumption that a person is engaged in commercial fishing activities if they are in possession of more than the permitted quantity of fish that can be held by a non-commercial fisher (Fisheries Management Act 1994, s 241 (2) ). In June 2010, the NSW Government announced plans to facilitate indigenous peoples' participation in the commercial fishing industry. As a key major input into the commercial fishing policy, in 2012 the Aboriginal Fishing Advisory Council provided a submission to the Independent Review of the Commercial Fisheries Policy, Management and Administration in NSW.

[19.350)

chapter 19 Fisheries and aquatic ecosystems

Commercial fisheries management Fishing licences [19.320] Commercial fishers are required to hold a commercial fishing licence. Failure to hold a

licence makes them liable to a penalty of up to 1000 penalty units and, in the case of a corporation, 2000 (these penalties can be doubled for second or subsequent offences: s 102(1)). It is generally the master who is required to hold the licence; crew members are not required to hold a licence if they take fish as an employee or agent of the master of the boat (s 102(2)). As noted below, the holder of a commercial fishing licence must also have that licence endorsed if they wish to fish in a share management fishery or in a restricted fishery.

Licence conditions [19.330] The principal commercial fishing licence is the "Class 1" licence which must be held by

people such as:

• • • •

shareholders in a share managed fishery (s 103(2)(a)) an individual who owns a fishing business with restricted fishery endorsements (cl 125(a)) someone who has applied, or is in the process of applying to be an eligible fisher (cl 125(6)) an individual who has applied, or is in the process of applying for a permit under section 37 to undertake certain commercial fishing activities (cl 125(c)).

Licences may be subject to a range of conditions, either specified in the licence or prescribed in regulations (s 104(4)(a)). Prescribed licence conditions are set out in clause 129 and relate to the use of crew and providing assistance to fisheries officers in the exercise of their duties. The contravention of a condition attracts a maximum penalty of 100 penalty units (s 104(7)). Licences are not transferable (s 104(4)(d)). A commercial fishing licence does not authorise the holder to engage in a particular commercial fishing activity unless he or she is also authorised by an endorsement or permit to undertake such activity. Commercial fishers participating in a restricted fishery must pay an annual contribution as prescribed by regulations (s 115A(1); di 132 - 133, Sch 8).

Fishing boot licences [19.340] The Fisheries Management (General) Regulation 2010 provides that a boat authorised to fish under the laws of the Commonwealth or another State is taken to be licensed under the Act but only for the purpose of landing fish in NSW that were taken from waters to which the Act does not apply (FM Reg, cl 144 ).

Licence conditions [19.350] Licences are subject to a range of conditions including the following:

• •

The boat be clearly marked as a "LFB" ("licensed fishing boat") (FM Reg, cl 138) The boat displays the letter "D" and its licence number on the boat (FM Reg, cl 138(1)(c))

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[19.360)

• Fish taken or landed from a licensed fishing boat are assumed to be taken for sale (ss 107(1) and 109) • Each crew member of a licensed fishing boat must be registered (s 110(1), cl 138(1)(d)), but an unregistered person may act as a member of the crew if:

•

- a registered crew member is not available when the boat leaves port (s 110(2) ), or - the commercial fishing licence or boat licence authorises the use of persons who are not registered crew members (s 110(5)) Persons are generally ineligible to be registered as crew members if they have been convicted of a fisheries offence or of assaulting a fisheries official (FM Reg, cl 14 8)

• The holder of a fishing boat licence must keep records about crew members (cl 150), and this may also be required of crew members themselves (cl 151) • The holder of the licence must comply with boat specifications (cl 138(1)(g)) and not modify its components without prior approval (cl 138(1)(h)) • The Minister is notified in writing within 30 days if the boat is disposed of, destroyed or lost at sea (cl 138(1)(j)) • The boat must only be used for activities noted in the licence (cl 138(1)(i)) or any conditions prescribed by a share management plan (cl 138(2)).

Fishing gea r (19.360] One of the perennial problems to be addressed by fisheries management, particularly with respect to commercial fishing, is to ensure that authorised fishing is efficient in terms of taking only the species targeted and, where appropriate, only targeted fish of a certain size.

Sections 22 and 23 of the Fisheries Management Act 1994 authorise the registration of classes of fishing gear, their regulation, and various other conditions. This is in order to combat problems such as:

• •

catching and destroying unwanted fish ("bycatch") minimising adverse effects - eg the effect of trawling on sea or lake floors .

Part 3 of the Fisheries Management (General) Regulation 2010 prescribes the physical properties and dimensions of permitted fishing gear, as well as the lawful use of nets or fishing gear in each fishery. It also provides for the method of measuring the length and mesh size of nets. The maximum penalty for use of unregistered (but registrable) gear is 25 penalty units (or, in the case of a corporation, 50) (s 22). It is also an offence to possess illegal fishing gear on or adjacent to NSW waters (s 25 (1) ). This includes where the use of that gear is prohibited in the Regulation or in a fishing closure. A person who is on board a boat is taken to be in possession of any fishing gear on that boat (s 25(2)). Such a charge can be defended on proof that the gear was actually being transported in accordance with a formal approval or was otherwise in possession for a lawful purpose (s 25(3), (4)) .

Part 4 of the Regulation further sets out the rights of priority between commercial and recreational fishers on recognised fishing grounds and that between commercial fishers in inland waters. It is an offence to take fish contrary to the rights of priority which attracts a maximum penalty of 50 penalty units. As a general rule, a commercial fisher who is taking or who intends to

[19.380)

chapter 19 Fisheries and aquatic ecosystems

take fish on a recognised fishing ground using a prescribed method for that area has priority over any other person who is taking or intends to take fish on that fishing ground by any other method (cl 62). The priority between commercial fishers in inland waters is determined based on the fishers taking turns to set their nets. The first turn belongs to the commercial fisher who first arrives at the point on the bank from which the nets are intended to be set. During a commercial fisher's turn, he or she has exclusive right of setting the net as prescribed in the Regulation. A turn must not exceed 24 hours and no commercial fisher is to have a second turn until all the other commercial fishers on the fishing ground with lawful nets have had their first turn (cl 63).

Share management fisheries (19.370] The most significant change in fisheries management brought about by the Fisheries Management Act 1994 was the introduction of share managed fisheries to supplement the previous system under the Fisheries and Oyster Farms Act 1935. Under that Act, there were annual renewable commercial fishing licences and restricted fisheries. In the early 1990s there was growing concern in NSW about the impact on fish stocks of increasing fishing effort and improved fishing techniques as well as concern among commercial fishers about the security of their fishing entitlements. Under the previous Act, their licences could be cancelled if they failed to spend most of their time fishing or earn the majority of their income from fishing. There was also no guarantee that their licences would be renewed every year. This placed extra pressure on fish stocks because it had the effect of encouraging fishers to do more fishing in order to increase the prospect that their licences would be renewed.

The Fisheries Management Act 1994 was designed to improve certainty of fishers ' access rights and to do so in a manner that would encourage the adoption of better fishing practices. The abalone and lobster commercial fisheries were the first fisheries to be converted to share managed fisheries in 2000. In March 2004 the rest of the State's major commercial fisheries (estuary general, estuary prawn trawl, ocean hauling, ocean trap and line, ocean fish trawl, ocean prawn trawl fisheries) were added to the share management scheme. A new fishery subject to share management is the lobster fishery.

Types of shore management fisheries (19.380] Part 3 of the Act implements the share management process. Fisheries are classified as "share managed fisheries" and shares are granted to participants in the fishery, providing them with privileged access to the resource amounting to a limited form of legislative property right. The shares guarantee their participation in the fishery because only shareholders are entitled to fish for commercial purposes.

Two categories of share management fishery are created (s 4 lA):

•

•

In a category 1 share management fishery, shares are issued for a 10-year period and are automatically renewed (s 73 ). If the fishery is shut down, all shares are cancelled and compensation is payable to shareholders. In a category 2 share management fishery, shares are issued for a 15-year period and are renewable (s 73A). If the fishery is shut down, shares expire at the end of the 15-year period for which they were issued or renewed. Compensation is payable where a fishery

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[19.390)

is shut down before the expiration of the current term, but is not payable where it is shut down after the expiration. (Note that the right to compensation discussed here is separate from that ins 340, discussed at [19.500].) Shares have financial value in the sense that they are transferable (s 71(1)) and can be sold when the shareholder leaves the industry. Significantly, they are also an asset against which shareholders can borrow to finance their participation in the fishery. Any mortgage interest created on a share is required to be recorded on the share register established for the fishery (s 71(3); see also ss 89 - 101).

Benefits of share managem en t [1 9.390] The principal benefits of the share management arrangement are:

• •

more efficient allocation of fishing effortl

[19.440)

•

chapter 19 Fisheries and aquatic ecosystems

a community contribution fee in a category 1 share management fishery (s 77) or a rental charge in a category 2 fishery (s 77 A) (paid into consolidated revenue), and

• an industry management charge (s 76), based on the objective of recovering the full costs of managing fisheries. The Act provides that the management charge for a fishery "is to be such amount as the Minister considers necessary to meet the costs of management for that fishery": s 76(2) (see Link v Minister for Primary Industries [2007] NSWSC 1011). These fees are generally payable by shareholders in proportion to their shareholding (ss 76(4), 77(4)). Fees were initially set at a flat rate but in 2004 (and again in 2006), to encourage diversification of fishing effort, the Act was amended to allow a lesser fee to be charged for shareholders engaged in more than one fishery (ss 76(4A), 77A(4)). In June 2014, the Minister announced a three year cap on commercial fisheries management charges to reduce the financial burden on shareholders. This temporary measure was put in place as a recommendation of the independent SARC until the reform program is finalised.

more accurate knowledge of the level of fishing effort undertaken in each fishing period.

As shares in a category 1 share management fishery are issued for 10 years and automatically renewed, and shares in a category 2 share management fishery are issued for 15 years and may be renewed, shareholders can plan the location and level of their fishing operations with certainty over many years. (Note that in category 2 share management fisheries, shareholders will have at least five years' notice of the termination of the fishery: ss 45A(2), 73A.) Encouraging sustainable practices [19.400] Share arrangement is also aimed at facilitating more sustainable fishing practices because the fishers themselves have a more tangible interest or stake in the health of fisheries . In addition to the setting of the total allowable catch, fishing effort can be further reduced because a requirement can be set that a fisher hold a minimum number of shares before they are entitled to fish. A maximum shareholding may also be set for a fishery, typically at 5% of the number of shares in the fishery (s 72(2)).

In 2013 the NSW Government established an Independent Structural Adjustment Review Committee (SARC) to provide oversight of the reforms to be made on the commercial fisheries of the State, including providing recommendations that will strengthen property rights, improve the economic performance of the sector, reduce cost of management, ensure biological sustainability and increase voluntary compliance. One object of the commercial fisheries reform is to link shares to resource access or set the "piece of the pie", in such a way that even though the size of the "pie" might change over time due to stock abundance, a share of the pie stays the same. This means that existing shareholders will have stronger and better defined rights and that new fishing effort cannot enter the fishery. The NSW Department of Primary Industries has established Share Linkage Working Groups to explore options for the share linkage (eg based on total catch, total effort, and other options tailored to the circumstances of the fisheries and share classes). Commercial fishers will also be given the option to exit the fishery based on the outcome of the share linkage through exit grants.

Wh o can fi sh ? [1 9.420] Only shareholders are permitted to fish in a share managed fishery, provided that

(s 66):

•

they hold any required minimum number of shares, and

• their commercial fishing licence is endorsed for taking fish in the fishery. However, a shareholder may nominate another commercial fisher to take fish on their behalf (ss 66(a) and 69). There is also a provision for fishers not otherwise entitled to fish in a particular fishery to have a special short term endorsement placed on their licence allowing them to fish if the Minister is satisfied that an available fisheries resource would not otherwise be utilised (s 70). Regulations may prohibit certain persons from holding shares, for example, if they have a record of fisheries offences (s 49(2)) . Such persons may be refused a commercial fishing licence or have their licence cancelled (see for example FM Reg, ell 128(a), 131(a)) . To deter noncompliance, shares may be forfeited for certain fisheries offences if specified in the management plan relating to the fishery (s 75).

Allocation of shores [19.430] The process for creating a share management fishery (s 41) begins when the Minister consults industry bodies about which fisheries should become share management fisheries (s 43(1)) . An Interim Management Advisory Committee is then established and the criteria for allocation of shares are determined. A public notice is then given inviting applications for shares from eligible persons. These are generally commercial fishers or fishing boat licence holders already operating in the fishery (s 50(2) read with s 49). They apply for shares, based on their catch history records (ss 47, 50(3), 51), and provisional shares are issued (s 48).

Charges

Appeals

[1 9.410] In recognition that fishers have privileged access to a publicly owned resource,

[19.440] At this point, access to the fishery is limited to provisional shareholders and persons claiming to be eligible to receive shares. Appeals against the provisional issue of shares are

shareholders are required to pay:

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[19.450]

determined (s 41 (c)) and a draft management plan for the fishery is prepared (s 41(d)). Appeals relating to the number of shares issued are heard by a Share Management Fisheries Appeals Panel (ss 82 - 88).

Finalising the share management [19.450] Finally, management plans for the fishery are developed (ss 56 - 65) following an

environmental assessment (see below). The management plan is then published and fully transferable shares issued.

Exceeding an entitlement [19.460] If a fisher takes more fish than their shareholding permits them to take, they must

[19.530]

chapter 19 Fisheries and aquatic ecosystems

Government acquisition of fishing entitlements [19.500] Division 4B of Part 2 of the Fisheries Management Act 1994 aims to assist in the reallocation of fisheries resources by authorising the payment of compensation to commercial fishers where their fishing entitlements (shares) have been acquired so that new fisheries management arrangements can be put in place.

After a consultation process, the Minister may declare the acquisition of commercial fishing entitlements and then cancel them (s 34N). In these circumstances, those who held entitlements are entitled to compensation for the market value (s 340(1)). The Division sets out a process for review if agreement cannot be reached between the Minister and the person whose fishing entitlements have been acquired. As a final recourse, an appeal may be taken to the Land and Environment Court (s 340(4)).

make a payment into consolidated revenue equivalent to the value of the excess fish taken (s 81(1)).

Restricted fisheries Transition to the new system [19.470] A major challenge for implementing new arrangements for fishing entitlements is the

transition from an old system to a new system. The Act provides for the staged implementation of share managed fisheries involving an industry consultation process (ss 41, 43; see also ss 58, 284).

[19.51 0] Fisheries, other than fisheries operating as share managed fisheries, can be declared restricted fisheries (s 111). These fisheries may be identified as "exploratory" or "developmental". The major fisheries that are in the process of conversion to share managed fisheries remain listed as restricted fisheries (sea urchin and turban shell fishery, southern fish trawl fishery: FM Reg, ell 155, 168). To fish commercially in a restricted fishery, a person must hold a commercial fishing licence endorsed for the fishery (s 112). Compensation is not payable if a fishery ceases to be a restricted fishery (s 115).

Determining catch history [19.480] As with similar schemes in other jurisdictions, the preferred means to determine a fisher ' s entitlement is to refer to their level of fishing effort in previous years. The Act utilises this approach: catch history is the principal determinant for the allocation of shares (ss 50(3), 51). Criteria for determining a fisher's catch history are developed in regulations for each fishery. This is the most volatile issue in the program: depending on the criteria set for a particular fishery, the allocation of shares may be perceived to be unfair. The Act provides some room for accommodating these concerns by providing that criteria may be set that allow fishers to choose their best catch history within a certain period (s 51(2)). It also allows a person's catch history to be increased to take into account their duties as a representative of the commercial fishing industry (s 51(5)). (For a decision concerning a disparity between a fisher ' s recorded catch history and his likely actual catch history for the purpose of seeking an endorsement on his fishing licence, see Patane v Minister of Fisheries, NSW Fish eries [2006] NSWADT 50.)

What does a share represent? [19.490] The issue of determining the value of each share, in the sense of how it equates to a

permitted level of fishing effort, is a separate process. If a total allowable catch (TAC) has been determined, shareholders are allocated the whole TAC in proportion to their individual shareholding (s 78(2), (3)) . As discussed above, part of the commercial fisheries reform being developed by the NSW Government is to determine a formula for linking shares with resource use.

Quotas [19.520] A crucial management tool is the power to set limits on the amount of fish that can be taken. The Act establishes an independent TAC Committee to determine the total allowable catch for fish in commercial fisheries, including share managed fisheries. It may also make determinations with regard to the level of fishing effort in commercial fisheries. The committee is independent from ministerial control although it must, in setting quotas, "have regard to all relevant scientific, industry, community, social and economic factors", as well as the objects of the Act and the precautionary principle (s 30). For an explanation of the precautionary principle, see [1.220].

Fish receivers [19.530] If a person receives fish for commercial purposes from someone they know or reasonably suspect to be a commercial fisher, the person must be registered as a fish receiver. It is

an offence to receive fish without being registered (s 117). There are exceptions to this requirement; the main ones are (s 117(2)):

• • •

where the person received an allowable minimum quantity where they received fish in their capacity as an employee or agent of another fish receiver where they are transporting the fish on behalf of their owner.

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(19.540]

Fish receivers are generally required to provide information to fisheries officers about fish they have received and to keep various records (s 119(1), (2)).

Fish records [19.540] Fisheries management relies heavily on "output" controls. To this end, the Act requires

detailed record keeping of the total amount of fish caught and associated matters. Specific record keeping requirements are set out for commercial fishers, employers of commercial fishers, fish receivers and fish sellers (ss 121 - 123; FM Reg, ell 215 - 220) . For example, commercial fishers are required to make a "prescribed activity record" which must include, among many other matters, particulars of all fishing activities and fish taken or disposed of during or after fishing (ell 215, 216(1)). Catch records must be submitted within 28 days, or, in the case of abalone, within 24 hours (cl 216(4)). Detailed records are also required at the time when selling more than a prescribed minimum quantity of fish (ss 123A(l), 123A(7), cl 218), with the exception of oysters (s 123A(5)(b)).

Fishing businesses [19.550] The Director-General of the Department of Primary Industries is empowered to (ss 34Q - 34S):

• determine a business to be a fishing business (and identify its components) • allocate the business an identification number • list the business on the fishing business register. This assists in the regulation of transfers of fishing businesses and, following such transfers, the regulation of fishing rights.

(19.580]

chapter 19 Fisheries and aquatic ecosystems

Environmental assessment [19.570] A significant change to fisheries management in NSW occurred in December 2000 when Part 5 of the Environmental Planning and Assessment Act 1979 (EPA Act) (see Chapter 6) was amended to require the preparation of environmental assessments for each of NSW's significant fisheries . This amendment was sparked by the decision of the Land and Environment Court in January 2000 in Sustainable Fishing and Tourism Inc v Minister for Fisheries [2000] NSWLEC 2. In that case, Justice Talbot held that a commercial fishing licence issued under the Fisheries Management Act 1994 authorised the "use of land" within the meaning of section 10 of the EPA Act. As a result, a commercial fishing licence was an "activity" for the purposes of Part 5 of that Act, and when a licence was issued or renewed, an environmental impact statement in accordance with that Act had to be prepared. As this had not been done when the licence in question was issued, the grant and subsequent renewal of the licence was in breach of the EPA Act, and was therefore invalid. The decision cast doubt on the validity of all NSW commercial fishing licences.

The EPA Act was amended by the insertion of Division 5 (entitled "Environmental assessment of fishing activities") into Part 5. The amendment avoids the great difficulty of conducting environmental assessments for each fishing licence individually by allowing them to be completed for fisheries in their entirety. The Division operates as a largely separate environmental assessment process specific to fisheries, and for the most part excludes the operation of other sections of Part 5 from fishing activities (s 115R(l) - (3)). The Division applies to "designated fishing activities", which are fishing activities for commercial purposes in share management fisheries (Fisheries Management Act 1994, s 7A, Sch lA). (In 2006, the recreational and charter boat fisheries were removed from the list of designated fishing activities.) It includes activities such as stocking waters with fish, installing shark nets around beaches, and harvesting marine vegetation (s 1151) .

W h at m ust be assessed?

Management strategies and e nvironmental assessments Fishery manage ment strategies (19.560] Part lA of the Fisheries Management Act 1994 provides for the preparation of fishery management strategies for fisheries or fishing activities. A fishery management strategy outlines the management objectives for the fishery or activity and the regulatory controls applicable to it. Performance indicators are included to enable monitoring of whether the objectives of the strategy are being attained. A draft strategy is first prepared in consultation with the management advisory body for the particular fishery or activity. It is then subject to public consultation in conjunction with the environmental assessment.

(19.580] The environmental assessment must assess the likely cumulative environmental impact

of the fishing activities carried out by all the commercial fishers operating in the fishery as described in the applicable draft fishery management strategy (s 115J(3), (4)). It must also assess the effect or likely effect on critical habitat and threatened species, populations and ecological communities and their habitats (s 115N(l)). Environmental assessments also include economic and social aspects. The process involves the preparation of an environmental impact statement for each of NSW's major fisheries and activities in accordance with Divisions 3 and 5 of Part 5 of the EPA Act (ss 115J(l), 115K(l) - (3)). It must include a species impact statement if the designated fishing activity is to be carried out in critical habitat or is likely to significantly affect threatened species, populations or ecological communities or their habitats, except if:

• •

the fishing activity has been authorised by a Ministerial order permitting harm to such species, populations and habitats (Fisheries Management Act 1994, s 221IA), and a species impact statement has already been prepared assessing such effects (EPA Act, s 115N(2A)).

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[19.590)

The Minister is also authorised to instigate a public inquiry into a designated fishing activity (EPA Act, s 115M). Environmental assessments have been completed for abalone, estuary general, estuary prawn trawl, lobster, ocean hauling, ocean trap and line, and ocean trawl fisheries.

Determination by the Minister [19.590] Following an environmental assessment for a designated fishing activity, the Fisheries

Minister is required to make a determination under section 1150:

• •

to prevent the carrying out of the activity (in whole or in part), or to permit the carrying out of the activity either in whole or "subject to such modifications as will in the Fisheries Minister's opinion eliminate or reduce the detrimental effect of the activity on the environment" (s 1150(4)(6)).

The Minis~er is re_quired to examine and take into account to the fullest extent possible all matters affectmg or likely to affect the environment by the fishing activity (s 1150(2)). Approval of the Planning Minister is required for designated fishing activities where the Fisheries Minister is, or is declared to be, the proponent (s 115P). This would occur for activities such as fish stocking.

Case study: Fishing closures [19.600] The operation of these sections was considered by the Land and

Environment Court in Professional Fishers Assoc Inc v Minister for Fisheries [2002] NSWELC 15, and on appeal by the NSW Court of Appeal in Professional Fishers Assoc Inc v Minister for Fisheries [2002] NSWCA 145. The Court of Appeal held (at 595) that the broad power to declare a fishing closure in section 8 of the Fisheries Management Act 1994 is not subject to the EPA Act because the power is constructed in broad terms and it would be contrary to the objects of the Act to require the preparation of detailed environmental assessments in circumstances when urgent action is needed.

Other purposes of assessment [19.610] The assessments assist in the process for obtaining Commonwealth approval for the export of. products from fisheries. In 2002 the Environment Protection and Biodiversity Conservation Ac~ 1999 (Cth) was amended to require, among other things, a State fishery to undergo a strategic assessment where export approval was sought for its products (Environment Protection and ~iodiversity Conservation Act 1999, Parts 10 and 13A) (see [7.650]). Export approval 1s restncted to those fisheries that are assessed as demonstrably sustainable. The NSW environmental assessments provide the basis against which the fisheries are assessed by the Commonwealth Department of Environment. NSW incorporates into its assessments the sustainability guidelines used under the Environment Protection and Biodiversity Conservation Act 1999 with the aim of avoiding duplicating the assessment process.

[19.630)

chapter 19 Fisheries and aquatic ecosystems

Enforcement Fisheries officers [19.620] Fisheries officers (who, under s 244, include police officers) are given various powers in Part 9 to enforce the Act. These include:

• a power of seizure (ss 242, 264 - 267) • a power to board and search boats (s 248) • a power to require fishing gear to be removed from water (s 249) • a power to enter and search premises (s 250) • a power to detain and search vehicles (s 251) • a power to, at any time, enter into any waters or the banks of any waters or within a reasonable distance of high water mark on land adjoining any waters (s 252) • a power to examine any fishing gear or other equipment that is being, has been or will be used for fishing in NSW waters (s 255) • a power to require production of records (s 256) • a power to require production of fishing authority (s 257) • a power to require information (ss 258, 258A) • a power of arrest (s 262).

These powers may be exercised outside NSW waters where a person or boat has been pursued in accordance with a "hot pursuit", which is defined in section 261. In carrying out these powers, a fisheries officer is to do "as little damage as possible" (s 263; see Van Eden v State of NSW [2008] NSWSC 629).

Case study: Obstructing an officer [19.630] It is an offence under section 247 for a person to resist or obstruct, without reasonable excuse, a fisheries officer in the exercise of their fw1ctions. In NSW Fisheries v Payanouvong [2004] NSWSC 1092 the Supreme Court needed to consider the operation of this provision. The defendant, while fishing from a rock platform in Botany Bay, had tipped out the contents of his bucket and thereby prevented approaching fisheries officers from examining its contents to determine if there had been an offence against the Act. Officers have the power, under section 255, to examine "any fishing gear or other equipment" if they have reason to believe that it is being, has been or will be used for fishing. The magistrate dismissed the charge on the basis that the power did not extend to the contents of a bucket that was being used, for example, to store bait. On appeal to the Supreme Court, the court found that the fisheries officer had a broader power under section 250(1) to "break open and search any container ... that the officer has reason to believe contains any such thing" connected with a fisheries offence. Although the operation of this section is restricted to "premises", the court found that that it was written in broad terms, consistent with other parts of the Act, so that it applies to public places, including rock platforms.

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[19.640]

chapter 19 Fisheries and aquatic ecosystems [19.690]

Civil proceedings .ng proceedings in the Land and Environment Court fo r an order to · a breach of the Act even if they are not personally affected by the actual or reme d y or res t ram , potential breach (s 282; see [2.800]).

[19.660] Any person may brl

Compliance audits [19.640] The Minister is empowered to require compliance audits of authorised fishing activities to provide information on compliance with legal requirements and fisheries policies or to determine whether there can be improvement in the way in which fisheries activities are conducted (s 275B).

Penalties [19.650] As an alternative to prosecution in the Local Court, a penalty notice may be served on a person if it appears to a fisheries officer that they have committed an offence (s 276) . A person served with a penalty notice may choose to pay the penalty without having a conviction recorded or choose to have the matter determined by a court. Payment of a penalty notice is not an admission of liability and a conviction is not recorded (s 276(5)). These penalties are substantially lower than the maximum penalty that a court may impose for offences upon conviction. In 2013-2014, 2,120 infringement notices were issued and over 300 matters were successfully prosecuted.

Those who have been convicted of three or more separate fisheries offences are classified as repeat offenders and may be prohibited by the court from engaging in certain activities, being in certain locations or being in possession of certain things (s 282C). Such an order can only be made if the court is satisfied that it is necessary to prevent a threat to the sustainable management of a fisheries resource and that the threat justifies the restrictions to be imposed on the repeat offender (s 282C(2)). In addition to imposing the penalty for an offence, a court has a discretion to order forfeiture of a boat or motor vehicle (including trailers) that has been used by a person for certain commercial fishing offences (ss 265, 269) (for examples of a court exercising its discretion not to order the forfeiture of a boat, see Director General, Department of Industry and Investment v Rob Butler (Nee Zachariah El-Chami Batch) [2011] NSWSC 1620 and Director-General, Department of Primary Industries v Schembri [2009] NSWSC 1006). A shareholder in a share managed fishery may have his or her shares forfeited upon conviction of a fisheries offence (s 75(2)). Despite the challenges presented by surveillance and enforcement of fisheries law, approximately 300 people are convicted of fisheries offences in NSW each year. A perennial challenge for prosecutors is to convince magistrates of the seriousness of the offence and to secure penalties in the higher end of the permitted range. Only approximately 1-3% of convictions result in prison terms. In 2002-2003, one person with three offences was imprisoned for nine months, in 2003-2004, two persons were each imprisoned for one month, and in 2009 a man was fined $2,000 and sentenced to two months imprisonment for illegal abalone fishing on the South Coast. The average court imposed fine for a fisheries conviction during the period 1999-2004 was $706. The penalties imposed by local courts have noticeably increased in more recent years. In 2010 an offender was sentenced to 12 months imprisonment with a $1,000 fine. Courts have also imposed fines of up to $9,000 for various fisheries convictions from 2010 to 2014.

Aquaculture [l 670] Part 6 of the Fisheries Management Act 1994 provides the arr~ngements for th: 9 a .roval and management of aquaculture. These consist of the preparat10n of fra~ewor d~~uments to identify suitable aquaculture developments and the approval of t?em b:i_t~e issum~ of permits. Leases are also required where aquaculture is to be undertaken m pu IC y owne

waters.

What is aquaculture? (19.680] Aquaculture is defined to cover two situations:

_

• where fish or marine vegetation are cultivated for the purposes of harvesting them or their progeny with a view to sale, or _ • where fish or marine vegetation are kept in a confined area for a commercial purpose. · · · 1 des f1'sh kept in ponds to be grown for later sale (s 142(a), (b)). The second s1tuat10n me u . ._ . . A uariums and pet shops are specifically excluded from. this defm1t1on, as well as s1tuat10ns w~ere fish or marine vegetation are not kept for commercial purposes(~ 1:2(c), (d)). _H_o:v,reverf the kee ing of fish for a recreational facility was held to fall w1thm. the defm1t10n o "aquac:iture" in the circumstances in Soldat v Blue Mountains City Council (1998] NSWLEC 54.

Aquaculture industry developme nt plans (19.690]

The Act empowers the Minister to make aquaculture industry development plans for

(s 143):

• commercial aquaculture in general • aquaculture in particular areas • individually for the numerous types of species cultivated.

· ke The commercial aquaculture industry and the public are given an opportum_ty_ to ~a submissions on proposed development plans or proposed ~mendments to_ ex_1stmg p ans (s 143(8)). Development plans may, among other things, identify smtable cult1vat1on methods and species to be cultivated in the relevant area (s 143(4)).

• •

Development plans must include performance indicators (s 143(5)) to: _ monitor whether objectives set out in the plan and ecologically sustamable development principles are being attained, and 1 is required when a performance specify at what point review o f t h e deve1opment Pan indicator is not being satisfied.

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[19.700]

When exercising functions under the Act, including the approval of individual aquaculture operations, the Minister needs to have regard to development plans that relate to aquaculture (s 143(3)).

Aquaculture permits [19.700] There is a general prohibition on undertaking aquaculture without a permit (s 144(1)). Any person (including a corporation) may apply to the Minister for a permit in accordance with any relevant class of permit (s 145(1), (3)).

Permits specify the area in which an applicant is authorised to conduct aquaculture and the type of aquaculture authorised to be undertaken in that area (s 147(1)), which includes the species of fish or marine vegetation authorised to be cultivated in that area, the things that may be cultivated from fish or marine vegetation under the permit, and the part of the life cycle of a species during which the species may be cultivated or kept (s 147(3)). Permit holders are not required to hold a commercial fishing licence for the purpose of taking fish or marine vegetation cultivated under the aquaculture permit (s 149). Aquaculture permits remain in force until they are cancelled. They are not transferable (s 151). The following classes of aquaculture permits can be issued (Fisheries Management (Aquaculture) Regulation 2012, cl 4):

• class A permit authorising extensive aquaculture on public water or land subject to an

[19.730]

•

an applicant does not have the necessary expertise to undertake the aquaculture successfully.

A permit cannot be refused if it is necessary for carrying out approved "State significant infrastructure" or "State significant development" which has received development consent, and the terms of the permit must be consistent with the development consent (EPA Act, ss 115ZH(l)(a}, 89K(l)(a); see [5.350]) . Under State Environmental Planning Policy (State and Regional Development) 2011, the current situation is that except for oy~ter farmmg_, ~quaculture development with a capital investment value of more than $30 million is _classified as State significant development, along with aquaculture in environmentally sensltlve areas of State significance.

Permit conditions [19.720] Permits are subject to conditions set out in them and in regulations issued under the Act

(s 152). These can relate to matters such as:

• the erection of structures • escape of fish or effluent • obligations to destroy or control noxious fish or marine vegetation (s 212) • holding public liability insurance

• financial guarantees for the performance of obligations.

aquaculture lease

• class B permit authorising intensive aquaculture on public water or land subject to an aquaculture lease • class C permit authorising extensive aquaculture to be undertaken otherwise than on public water or land subject to an aquaculture lease • class D permit authorising intensive aquaculture to be undertaken otherwise than on public water or land subject to an aquaculture lease • class E permit authorising extensive freshwater aquaculture to be undertaken at two or more privately owned locations otherwise than on public water or land subject to an aquaculture lease

• class F permit authorising a person to operate a fish pond, tank or other structure with a view to charging members of the public for the right to fish in the pond, tank or structure • class G permit authorising experimental aquaculture • class H permit authorising operation of a fish hatchery.

chapter 19 Fisheries and aquatic ecosystems

Permit holders operating under an aquaculture lease (see below) are also required to maintain in a tidy condition the area in which they conduct aquaculture (s 162).

In general, permit conditions are of three categories, although all conditions apply equally:

• •

standard conditions, which apply to all aquaculture permit holders specific conditions applying to a group of aquaculture permit holders related by the species being cultured, culture type, and infrastructure type of class of aquaculture permit

Special conditions, which apply to a single permit holder a~d relate to m_atters that a~e u~ique to the particular farm or leas area authorised by the permit. Contravenmg a condit10n is an offence (s 152(3); see for example Prosecutor v Marcus Goldberg [1997] NSWLEC 7). Contravention can result in the permit being suspended or cancelled (s 160(1)(d))_ a~d a declaration that the permit holder is disqualified from being eligible to hold a permit ei~her permanently or for a specified length of time (s 161(1), (3)). Permit holders may also be reqmre~ to pay annual contributions for administration, monitoring and research cost_s (s 156). This reflects the cost recovery principle and facilitates the further development of the mdustry.

Refusing a permit [19.710] The Minister may refuse to issue a permit where (s 146):

• • • •

the proposed aquaculture is not suitable for the area identified the proposed aquaculture is inconsistent with any relevant industry development plan there are technical irregularities an applicant has been disqualified from holding a permit

Appeals [19.730] Appeals concerning decisions to refuse permits (s 146(4)), or to suspend or cancel them (s 160(5)) may be made to the Civil and Administrative Tribunal (see for example Van_ ~den v Minister for Fisheries [2002] NSWADT 245). Appeals may also be made concernmg deciswns to

cancel aquaculture leases (see below) (s 177 (4)).

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[19.740]

Aquaculture leases [19.740] Where a person or a corporation wishes to conduct aquaculture in waters that are publicly owned, they must first obtain a lease over the area. Such waters are known as "public water land", which is defined as Crown or publicly owned land that is either permanently or intermittently submerged by water (s 4).

Leases are granted by (s 163(1)):

• application • auction • public tender, or • ballot.

Leases specify the species of fish or marine vegetation authorised to be cultivated within the leased area, but they must be used in conjunction with an aquaculture permit (s 163(3)). Leases cannot exceed 15 years (s 163(5)) with a first right of renewal for a further 15 years (s 167) and subsequent preferential renewal (s 168) if the area remains available for aquaculture and the terms and conditions of the lease have not been breached (s 168(3)). Lessees must pay rent (s 165) and interest may be charged on overdue amounts (s 166). Class A and B permit holders with authority for an aquaculture lease area must enter into a lease security arrangement of either $1,000 per hectare cash deposit or bank guarantee (Fisheries Management (Aquaculture) Regulation 2012, cl 15).

Rights granted by leases [19.750] A lease grants a lessee rights over the species of fish or marine vegetation specified in the lease. Within the leased area, lessees (s 164(1)):

• can cultivate these species • can take the species from the area • have ownership of all fish or marine vegetation specified in the lease.

Aquaculture leases do not confer the right of exclusive possession and they are subject to the public right of fishing (s 164(2), (3)) although there is now doubt about the existence of this right following Northern Territory of Australia v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24; [2008] HCA 29 (see [19.240]). They are thus at law more akin to a "licence" than a "lease". It is an offence for others to remove, injure or interfere with any fish or marine vegetation cultivated within a leased area or anything used for the purposes of aquaculture in the area (s 179(1)(a)),-

Aquaculture in marine porks [19.760] Aquaculture permits and leases are unaffected by the subsequent declaration of a marine park under section 29 of the Marine Estate Management Act 2014. However, an aquaculture lease in the area generally cannot be extended or renewed unless regulations provide that aquaculture is permissible in the area. Aquaculture is not permissible in sanctuary zones within marine parks, but it is permissible in general use zones, as well as habitat protection and

[19.780]

chapter 19 Fisheries and aquatic ecosystems

special purpose zones where Ministerial consent has been obtained (Marine Estate Management (Management Rules) Regulation 1999, cll 1.12, 1.18, 1.21, 1.24).

Disease [19.770] One of the major environmental concerns about aquaculture is the risk_of intro_duction and spread of aquatic diseases and interactions between cultivated fish and native s_pec1es. Act allows for the specification of diseases (including pests or parasites) that may kill or m1ure fish, marine vegetation or people who eat them (s 182). The Minister may also make ~n "urgent" declaration regarding a particular disease if urgent action is required. The declarat10n ~ust be published in the Government Gazette but the initial announcement may be made ~y publishmg a notice in a newspaper or by making a radio or television broadcast (s 182A). Perm1~ holders m_ust not intentionally or recklessly communicate a declared disease to live fish or manne v~getat10_n (s 184). Quarantine areas may be declared where the presence of one of thes~ disease~ 1s suspected (s 183(1)). Sale of diseased fish or marine vegetation (alive or dead) 1s _proh1~1ted (s 185), as is the disposal of them in NSW waters (s 186) . Schedule 6B of the Act contams a list of declared diseases.

!he

Other approvals [19.780] Depending on the type and location of aquaculture proposed, various other approvals may be necessary. For example, for aquaculture on land it may also be necessary to get ~pprov~ls for access to public lands (Crown Lands Act 1989: see Chapter 4 ) or interference with native vegetation (Native Vegetation Act 2003: see Chapter 12) .

If development consent is required under the EPA Act, an aquaculture operation is designated development under Part 1 of Schedule 3 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg) (see [5 .710]) where it:

• •

involves supplemental feeding, or involves farming of species that are not indigenous to NSW, or

• requires a lease under the Fisheries Management Act 1994 and: - has a total area of over 50 hectares, or - is more than 1O hectares but is also likely to cause significant impacts. Non-marine aquaculture operations generally are a pp roved separately in accordance_ with SEPP 62 (see below). Similarly, there is separate regulation of aquaculture that constitutes development for which State Environmental Planning Policy No 52 - Farm Dams and Other Works in Land and Water Management Plan Areas requires consent and aquaculture development to which State Environmental Planning Policy No 62 - Sustainable Aquaculture applies (EPA Reg, Sch 3, cl 3(2)). In addition, an environment protection licence under the Protection of the Environment Operations Act 1997 (see [9.670]) is required for premise-based aquacult~re _other than oyster farming where there is supplemental feeding and the discharge of effluent, liquid sludge or other waste water into natural waterbodies.

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(19.790]

(19.820]

The complexity of aquaculture approval processes in Australia was the subject of a Productivity Commission report in 2004 entitled Assessing environmental regulatory arrangements for aquaculture (http://www.pc.gov.a u/research/commissionresearch/aquaculture) . In an effort to coordinate approval processes and in.corporate statutory requirements, the NSW Land Based Sustainable Aquaculture Strategy (LBSAS) was adopted which contains two interlinked sections on best management and integrated approvals. The NSW LBSAS includes an identification of appropriate aquaculture sites and provides a simplified approvals process gazetted under State Environmental Planning Policy 62 - Sustainable Aquaculture.

The respondent submitted that the local council and the State of NSW were negligent by omission in not doing enough to prevent the hepatitis outbreak. This related to whether NSW had failed properly to regulate the growing of oysters and whether the local council had properly zoned the area in which the oysters were grown. The claims against the State and the local council were rejected o~ th~ basis that the respondent had failed to establish that they owed a duty of care to md1v1dual consumers of Wallis Lake oysters. Even though both the local council and the State had the power to control the activities (including monitoring and testing the waters for contamination and taking steps to prevent the harvesting of oysters), the court drew a distinction between the ability to exercise control and the actual exercise of control. The mere fact there was the existence of power and the potential to exercise control over an activity was not a sufficient basis for the imposition of a duty of care. The State had not actually assumed direct responsibility for the day-to-day control of the commercial activities of oyster growers in Wallis Lake or elsewhere. Further, according to Chief Justice Gleeson (at 554), caution needs to be exercised when considering whether to extend liability to public authorities in situatio~s where decisions about the extent of government regulation and control over pnvate and commercial behaviour is essentially political.

SEPP 62 (19.790] In 2000 State Environmental Planning Policy 62 - Sustainable Aquaculture (SEPP 62) was prepared under the EPA Act. The aim of this instrument is to provide a "whole of government approach" for the approval and encouragement of sustainable aquaculture in NSW. It applies to pond-based, tank-based and natural water-based aquaculture operations. Aquaculture operations that fall within these classifications are prohibited if they do not comply with the policy (SEPP 62, cl 11).

The policy:

• promotes aquaculture in areas where a regional aquaculture strategy has been developed • establishes minimum performance criteria for site and operational requirements • provides for the establishment of "graduated" environmental assessment based on the level of environmental risk associated with a proposed aquaculture development. It aims to assist local councils and other regulatory agencies in assessing aquaculture development proposals. Some aquaculture operations (see above) remain designated developments for the purposes of the EPA Act (EPA Reg, Sch 3 Pt 1; SEPP 62, cl 14(1)). SEPP 62 was considered by the NSW Land and Environment Court in Chambers v Maclean Shire Council [2002] NSWLEC 1 and Pindimar Bundabah Community Association v Great Lakes Council [2007] NSWLEC 165.

Case s tudy: Seeking damages for negligent regulation (19.800] The High Court case Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 raised the question of whether government agencies and local councils can be sued for damages if they are negligent in regulating aquaculture activities. The respondent and other consumers contracted Hepatitis A after eating oysters grown in Wallis Lake, near Forster on the NSW central coast. The oysters became contaminated after a period of high rainfall. It was well known that runoff following high rainfall increases the risk of viral infections. The respondent brought an action in negligence on behalf of a class of affected consumers for damages against the oyster growers as well as the local council (Great Lakes Council) and the State of NSW.

chapter 19 Fisheries and aquatic ecosystems

Protection of aquatic habitats (19.81 0] Part 7 of the Act allows for the making of habitat protection plans to protect any fish

habitat where it is (s 192):

• essential for the survival of the species, or • required to maintain harvestable populations of the species, or • required for critical habitat listed in Part 7A. The Minister and public authorities must consider a habitat protection plan in the exercise of their functions (s 193). A public authority is required to notify the Minister if it pr?~oses to exercise any function that is inconsistent with a habirnt protection plan. Wh~re the Mmister f~r the relevant public authority and the Fisheries Minister cannot resolve the _disput~, the matter is referred to the Premier for resolution (s 193(3 )) . The Premier's resolution will be given effect even if it is inconsistent with a habitat protection plan (s 193(4)).

Aquatic reserves (1 9.820] Special protection may be given to certain areas by declaring them to be aqu~tic reserves under the Marine Estate Management Act 2014. These are typically smaller than manne parks (see below), in most cases less than 80 hectares. The primary_purp_ose o~ an ~quatic re_serve is to conserve biological diversity, or particular components of biological diversity. ConsiS t ent with this primary purpose, the secondary purpose . of aquatic reserves are (Marine Estate

Management Act 2014, s 33 ):

•

managing the use of resources

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[19.830)

• facilitating educational activities and scientific research • providing opportunities for public appreciation and enjoyment • supporting Aboriginal cultural uses. There are currently 12 aquatic reserves:

• Long Reef (North Sydney, established 1980) • Bushrangers Bay (Shellharbour, established 1982) • North (Sydney) Harbour (established 1982) • Shiprock (Port Hacking, established 1982) • Towra Point (Botany Bay, established 1987) • Cook Island (Tweed Heads, established 1998) • Barrenjoey Head (North Sydney, established 2002) • Boat Harbour (Kurnell, established 2002) • Cabbage Tree Bay (Manly, established 2002) • Cape Banks (La Perouse, established 2002) • Narrabeen Head (North Sydney, established 2002) • Bronte-Coogee (East Sydney, established 2007) Establishing rese111es [19.830] Before declaring an area to be an aquatic reserve, the Minister must obtain the consent of the land owner (s 35). A land owner may be either a private land owner or, for public water land, the relevant authority or Minister. Consent is not required where the owner cannot be found or identified after "diligent inquiry" (s 36).

Managing rese111es [19.840] Aquatic reserves are managed by the Department of Primary Industries as part of the new approach to marine estate management. Regulations on aquatic reserves may include (s 40):

• the use and enjoyment of aquatic reserves • carrying out activities within, on or adjacent to aquatic reserves either generally or in relation to a particular reserve or park • taking of animals, plants or materials from or into the reserve • entry into the reserve of all persons or any class of persons • removing trespassers, persons causing annoyance or inconvenience or persons committing offences • navigation and use of vessels, or the closing of reserve to vessels • where vessels may be moored or anchored • protecting cultural heritage • use of aircraft • prescribing fees.

[19.870)

chapter 19 Fisheries and aquatic ecosystems

A person who carries out an activity which contravenes management regulations or an aquatic reserve notification is liable to a maximum penalty of 500 penalty units and 1,000 penalty units for corporations (s 41).

Mining in aquatic reserves [19.850] Mining is prohibited in aquatic reserves (s 54(1)), with the exception of existing mining activities in which licences, permits or leases may still be in force; however no renewal or extension of such licences may be granted after specific dates nominated in the Marine Estate Management Act 2014 unless expressly authorised by an Act of Parliament (s 54(3)). Development in or adjacent to aquatic reserves is managed according to the Marine Estate Management Act 2014, EPA Act and other relevant Acts and policies.

Marine parks [19.860] Under the Marine Estate Management Act 2014, an area that may be declared as a

marine park may include:

• any area of waters of the sea or subject to tidal influence • any area of water, or land, adjacent to such waters • any area of land within such waters • any area of land from time to time covered by such waters (s 23(3)). A marine park declaration may not be made in respect of an area of Crown lands above mean high water without prior consent under the Crown Lands Act 1989 and in an area of land above mean high water mark without the consent of the owner of the land (s 23(4)). Once a marine park declaration has been made, it is not affected by an existing interest in respect of land in the area or a change of land ownership (s 23(5)). A declaration of an area as a marine park can only be revoked by an Act of Parliament (s 25). A marine park may also be declared on land that is already reserved or dedicated for a public purpose (s 28). An aquatic reserve is revoked upon the declaration of a marine park (s 27(1)) and an area within a marine park cannot be declared as an aquatic reserve (s 27(2)). There are currently six multiple use marine parks:

• Jervis Bay (established 1998) • Solitary Islands (established 1998) • Lord Howe Island (established 1999) • Cape Byron (established 2002) • Batemans (established 2005) • Port Stephens-Great Lakes (established 2006)

The total area of marine parks and aquatic reserves is approximately 345,000 hectares or around 34 % of NSW waters.

Management [19.870] The purposes of marine parks are the same as those of aquatic reserves (s 22).

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[19.880]

The day-to-day management of marine parks are conducted by the Department of Primary Industries. They are zoned in accordance with permitted uses and activities, from the most highly protected "sanctuary" zone to "habitat protection", "general use" and "special purpose" zones (Marine Parks (Zoning Plans) Regulation 1999). In sanctuary zones, vessels may only anchor in designated anchoring sites (cl 1.14). For a conviction for attempting to harm animals in a sanctuary zone, see · Sidhom v Robinson on behalf of the Department of Environment and Climate Change [2007] NSWLEC 408. In December 2014, the Minister of Primary Industries announced changes to the temporary measure given to shore-based recreational line fishing in 2013; In this decision, the NSW Government proposed to retain amnesty at ten sites, which will be permanently rezoned to allow recreational fishing. The removal of amnesty at 20 sites was also recommended, where sanctuary zone rules will again be enforced.

Fishing in marine parks [19.880] In general, fishing remains subject to general fisheries law and any specific marine zoning or operational plans. In case of marine parks, all forms of fishing are prohibited in

sanctuary zones while limited fishing activities may be allowed in habitat protection, general use and special purpose zones (Marine Estate Management (Management Rules) Regulation 1999, Pt 1, Div 2; see also Marine Estate Management Regulation 2009).

Critical habitat [19.890] Habitat that is critical to the survival of an endangered or critically endangered species,

populations and ecological communities (see below) may be declared to be the "critica] habitat" of the species (Fisheries Management Act 1994, ss 220P, 220T; Threatened Species Conservation Act 1995, Pt 3). Public authorities must have regard to the existence of declared critical habitat in relation to the use of the land concerned or in exercising their functions regarding the land concerned (s 220V). The location of critical habitat is made public by publication of information and maps in the Gazette (ss 220T, 220W), although there is discretion not to disclose the precise location if the Minister is satisfied that the disclosure would be likely to expose the habitat and the species to a · significant threat, each landholder of land concerned agrees that the precise location should not be disclosed, and it is in the public interest that the precise location should not be disclosed (s 220Y) . Ten sites have been declared critical habitat for the Grey nurse shark. Specific activities may be prohibited or regulated on specified critical habitats. (Threatened Species Conservation Act 1995, s 51).

Spawning fish habitat, noxious species and fishways [19.900] Various offences are created in the Fisheries Management Act 1994 aimed at avoiding harm to fish spawning habitat, combating the introduction and spread of noxious species, and assisting the natural passage of fish through inland waterways.

It is an offence to damage gravel beds knowing that it is a place where salmon or trout (or other species prescribed by regulations) spawn or are likely to spawn (s 206), and to wilfully take ·or disturb fish knowing that they are spawning or are near their spawning beds (s 207). Fish species and marine vegetation may be declared to be noxious (ss 209 - 209B): this makes the sale or possession of them, other than as authorised by permit, an offence (ss 210, 211).

[19.910]

chapter 19 Fisheries and aquatic ecosystems

Pacific oysters are an example of a listed "Class 2" noxious fish. They are declared to be a noxious fish in all estuarine and ocean waters with the exception of Port Stephens, where they are farmed under aquaculture licences (see Sch 6C, Part 1). Fisheries officers are authorised to seize and destroy any live noxious fish or marine vegetation (s 213). The Minister may also declare a quarantine area because of the presence or suspected presence of noxious fish or marine vegetation (s 209C). It is an offence to release live fish into the sea, river creek, other flowing stream of water, or into a lake without a Ministerial or aquaculture permit (s 216(1)) except for the immediate return of fish to waters from which they were taken (s 216(2)). It is also an offence to bring into NSW live fish species or certain live marine vegetation from outside NSW without a permit from the Minister (ss 217(1), 217A(l)).

Landowners who construct, alter or modify a dam, weir or reservoir on a waterway may be ordered to construct or repair a "fishway" to enable fish to pass through the construction (s 218). It is an offence to use nets or other material to obstruct fish passage in a bay, inlet, river or creek (s 219). There are a few exceptions, such as an activity that is approved State significant development or approved State significant infrastructure (EPA Act, ss 89J(l)(b), 115ZG(l)(b); see [11.70]).

Threatened species conservation [19.91 0] Part 7 A was inserted into the Act in 1998 to provide measures aimed at conserving the

biological diversity of fish and marine vegetation and promoting environmentally sustainable development and activities (s 220A(a)). It provides for the listing of threatened species, populations and ecological communities (Schedule 4) and key threatening processes (ss 220C - 2200) and for the preparation of recovery plans and threat abatement plans (ss 220ZH - 220ZV). The criteria for listing threatened species, populations, ecological communities and threatening processes are set out in clauses 270 - 283 of the Fisheries Management (General) Regulation 2010. Specific offences are created for harming threatened species, populations or ecological communities or damaging their habitat, as well as buying, selling or possessing threatened species. This Part operates alongside the Threatened Species Conservation Act 1995 (NSW), s SA and Fisheries Management Act 1994, s 220BA see [12.430]. A Fisheries Scientific Committee is established to determine lists of threatened species (Fisheries Management Act 1994, ss 220G, 221ZA, 221ZB). It may make its listing determinations either on its own initiative, or following a request by the Minister or the Natural Resources Commission or by nomination (s 220H). In implementing the Threatened Species Conservation Act 1995, the Minister may also consult the Fisheries Scientific Committee before making a declaration on a species of fish or marine vegetation (Threatened Species Conservation Act 1995, s SA).

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[19.920)

Threatened species, endangered populations and ecological communities [19.920) Threatened fish species are listed in one of the following categories: vulnerable, endangered, critically endangered or presumed extinct (s 220B(1)). For the purpose of threatened species listing, the Fisheries Minister may, with the agreement of the Minister administering the Threatened Species Conservation Act 1995, declare a species of animal to be a fish "if it is an invertebrate and it is a species that may inhabit water at some stage of its biological dev~lopment" (s 220BA(l)(a)). Two species of dragonfly are currently listed as threatened species of fish because they spend the majority of their life as aquatic larvae. Various fish species have been listed as vulnerable under the Fisheries Management Act 1994 (Sch 5), including:

• great white shark • great hammerhead shark • Alpine Redspot Dragonfly • Bousfield marsh hopper • Buchanans fairy shrimp • black cod • silver perch

[19.950)

• •

chapter 19 Fisheries and aquatic ecosystems

Lowland Darling River aquatic ecological community Lowland Lachlan River aquatic ecological community

• Snowy River aquatic ecological community. Offences

[19.930] Specific offences are created for harming threatened species, populations or ecological communities or damaging their habitat, as well as buying, selling or possessing threatened species. The maximum penalty for harming a vulnerable fish is 50 penalty units plus imprisonment for one year. For endangered fish, the maximum penalty is 2,000 penalty units plus imprisonment for two years (s 220ZA). In relation to fish, "harm" means "take, injure or otherwise harm the fish" (s 220B(1)). For example, certain fishing gear was prohibited generally within 800 metres of the critical habitat of the grey nurse shark. However, as an outcome of the NSW Review of grey nurse shark protection, research showed that grey nurse sharks are unlikely to interact with certain types of fishing gear such as artificial lures such as spinning, trolling and jigging. Hence, some of the critical habitat sites were delisted (ie Bass Point in Shellharbour) and the shape of some of the other sites at Magic Point and Green Island were modified. (Critical Habitat of Grey Nurse Shark Amendment Notification 2013 under the Fisheries Management Act 1994).

• Murray crayfish.

Licences and stop work orders

Fish species listed as endangered under the Fisheries Management Act 1994, Sch 4, are as follows:

[19.940] Licences can be granted authorising harm to threatened species, populations or ecological communities or to damage habitat (s 220ZW):

• southern bluefin tuna • eastern freshwater cod • trout cod • Adam's emerald and Sydney hawk dragonflies • Oxleyan pygmy perch • Southern pygmy perch • purple spotted gudgeon • southern bluefin tuna • scalloped hammerhead shark. • • • •

Listed endangered populations (Sch 4, Pt 2; for eligibility criteria, see s 220FA) include: Snowy River population of river blackfish Murray-Darling Basin population of eel tailed catfish Darling River Hardyhead population in the Hunter River catchment Po_sidonia australis populations in Port Hacking, Botany Bay, Sydney Harbour, Pittwater, Bnsbane Waters and Lake Macquarie.

Listed endangered ecological communities (Sch 4, Pt 3; for eligibility criteria, see s 220FB) include:

•

Lowland Murray River aquatic ecological community

• • •

for scientific purposes for the welfare of fish or marine vegetation if there is a threat to life or property.

Stop work orders can be issued where action is being, or is about to be, carried out that is likely to result in harm to a threatened species, population or ecological community or damage to habitat (s 2210).

Threatening processes [19.950] An activity that, in the opinion of the Fisheries Scientific Committee, adversely affects threatened species, populations or ecological communities or could cause species, populations or ecological communities that are not threatened to become so, is eligible for listing as a "key threatening process" (s 220FC). The definition of a "threatening process" is "a process that threatens, or that may threaten, the survival or evolutionary development of species, populations or ecological communities of fish or marine vegetation" (s 220B).

• • •

Eight activities are currently listed as key threatening processes. These are: the current shark meshing program in NSW waters hook and line fishing in areas important for the survival of threatened fish human-caused climate change

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(19.960]

• removal of large woody debris from NSW rivers and streams

• installation and operation of instream structures and other mechanisms that alter natural flow regimes of rivers and streams • degradation of native riparian vegetation along NSW water courses • introduction of fish to waters within a river catchment outside their natural range • introduction of non-indigenous fish and marine vegetation to the coastal waters of NSW. Threat abatement plans may be prepared to manage a threatening process so as to "abate, ameliorate or eliminate its adverse effects on threatened species, populations or ecological communities" (ss 220ZJ, 220ZN(2)).

Mangroves, seagrasses and other marine vegetation [19.960] Marine vegetation that is not listed under Part 7A as a threatened species, population or ecological community, is nevertheless afforded protection from harvesting if the vegetation is declared by regulations to be protected marine vegetation (ss 204A, 204B).

Mangroves and seagrasses may not be harmed except under the authority of a Ministerial permit (s 205; for a prosecution, see Rosser v NSW Department of Primary Industries [2008] NSWLEC 109), or if the activity is approved State significant development or approved State significant infrastructure (EPA Act, ss 89J(l)(b), 115ZG(l)(b); see [12.1190]). For a prosecution for harming marine vegetation in a protected area (s 205(2)), see Carter v Wall [No 2] [2003] NSWLEC 94). These provisions do not apply to marine vegetation that is properly being cultivated or kept for the purposes of aquaculture (s 205A).

Unlisted species [19.970] Species that do not satisfy the criteria for listing as threatened may still be afforded protection if the Fisheries Scientific Committee recommends to the Minister that other measures should be taken to protect them (s 2200). Measures include:

• fishing closures (s 8) • prohibitions on take (ss 19, 20) • bag limits and commercial catch limits (ss 17, 26 - 34) • size limits (s 15) • gear restrictions (s 24) • preparation of habitat protection plans (s 192) • declaration of restricted fishery (ss 111 - 116) • protection of marine vegetation (ss 204 - 205A) • declaration of share managed fishery (ss 41- 101).

20 Aboriginal land and heritage in NSW Susan Phillips Barrister St James Hall

Historical background ............................................................................................................................................. [ZO.l~] The NSW Aboriginal Land Rights Act .......................................................................................................... [ZO.? ] Native title ............................ ························:·······.····· ................................................................................................. [~~·~~~] Aboriginal cultural hentage protection m NSW .................................................................................... [ · l

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Historical background [20.10) Since Europeans colonised Australia there have been . and unconcluded initiatives in relation to Ab . . I I debates about, v10lence towards issues appear in some of the earliest decisions :~t;~~aNf:~ e and their rights to the land. These people (R v Jack Congo Murrell (1836) 1 L R upreme Court concernmg Aboriginal egge ep 72; R v Bon Jon NSWSC w·11· J 18 S 8 1 41 ). Early Governors struggled to restrain th f h I rs , ept e excesses o t e frontier and t . d l of ten to little avail, that Aboriginal peopl .I d o remm setters, e were entrt e to at least subs. t f h l to protection of the Jaw In is ence rom t e and and . response to some of the cruelty meted o t t Ab . . l colony and on its frontiers some r·nd· .d l . d d u o ongma people in the , 1v1 ua s m epen ently t .d 1 d h people could live in safety for exam l Al d se as1 e an w ere Aboriginal , p e, exan er Berry set aside R b p k Coo langatta Estate on the south coast f NSW ose y ar on his residence and safety of local Abor· . I o I (near present day Berry) for the continued 1gma peop e.

During the 19th century there were ad hoc reservations of la d f .. formal reservation of land for this pur . 182 . n or Abongmal people. The first . . pose was m 5 m Wellmgto V. II . NS Abongmes Protection Board was estabr h d 6 . . n a ey m W. In 1883 the control. A further 85 were established b::w:e~ ;~~~:!~5 of these ~eservations in NSW under its of NSW (under the Aborigines Protection A t 1909 1894. Dur_mg the 20th century, the State included the power to compel them to live : ) manag~d the lrv~s of Aboriginal people: this 1909 until 1969, when it was replaced 6 th :rbese~ves. This leg1slat10n remained in force from Y e origmes Act 1969 (NSW). During the 19th and particularly the 20th centuries church . . . to Aboriginal people. In many areas th . d I d, es became mvolved m mmistering ey acquire an where the· · · Id b They also moved onto the reserves to f l rr m1ss10ns cou e carried out. manage armer y self-managed .. f people. Today many Aboriginal people di f h commumt1es o Aboriginal s I re er to t e places where th h . gran d parents lived during the 20th cent " h M. . ey, t err parents and ury as t e 1ss10n".

Aboriginal people before 196 7 [20.20) In NSW, settlement pressure after World W: 1 I d . reserves and their allocation to soldiers ttl ar eh_ro the revocat10n of many Aboriginal e ers or to towns rp exp · Ab . . revoked reserves were sometimes m d h ans10n. ongmal people from ove to ot er reserves fa f h · d• . became fringe dwellers in country t Th G r_ rom t err tra 1t1onal country or . owns. e reat Depress10n als 0 f d Ab . . mto reserves as sources of work d. . . h d . . orce ongmal people . . rmm1s e , particularly m th · l mdustnes. Aboriginal people were not e t.tl d h . . e agncu rural and pastoral n 1 e to t e social secunty ·1 61 . . people, so reserves and missions were the on! . .f k ava1 a e to non-mdrgenous 1 Y optwns wor was not available. In 1940 the Aborigines Protection Board was re laced 6 . . Board had even greater powers to co l Ab . p I y the Abongmes Welfare Board. This mpe ongma people to 1· h exempt people from those restrictions if the Id d ive on t e reserves, but could . . Y cou emonstrate that the bl 1· . . w h rte society and not maintain Ab . . 1 . Y were a e to rve wrthm . ongma ways. Durmg the 1950 h B d housmg for Aborigines in many ru I h . s, t e oar began to acquire ra centres w ere segregat10 . h. h . Freedom Ride in 1965, nevertheless kept Ab . . l l n practice~, rg lighted by the ongma peop e apart from non-mdigenous residents.

[20.40]

chapter 20 Aboriginal land and heritage in NSW

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The 196 7 referendum and afterwards [20.30] In 1967 the Commonwealth referendum to amend sections 5l(xxvi) and 127 of the Constitution was passed and the Commonwealth was able to exercise its powers with respect to Aboriginal people. A Commonwealth department to deal with Aboriginal affairs was not established until the change of the Federal Government in 1972. The new Commonwealth Department of Aboriginal Affairs introduced a policy of self determination for Aboriginal people. Formerly, the policies of the States during the 20th century had sought assimilation of Aboriginal people.

In 1970-71, the Social Science Research Council of Australia published the three volume report by Professor Charles Rowley which investigated the position of Australia ' s indigenous peoples in contemporary Australian society. In a departure from previous assessments of Aboriginal people, the Rowley Report was not an anthropological review of an ancient people in an old society: it located Aboriginal people as contemporary Australian citizens. It remains a highly significant work of continuing relevance, and marks the point when the political and social perception of Aboriginal people and their culture shifted: they were no longer viewed as relics of an ancient culture but as present and future members of Australian society.

Land rights legislation (20.40] In 1971, Justice Blackburn's decision was handed down in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (the Gove land rights case). Justice Blackburn felt constrained by precedent from concluding that Yolgnu people were the owners of land leased by the Commonwealth to the mining company Nabalco, despite finding that the people had a system of laws and customs highly adapted to the country with which they had a relationship, with duties to care for and tend it by means of ritual observances. He found that the lives of Yolgnu people were governed by their own system of law, but that the common law did not recognise that they had any communal entitlement to the land that restrained the right of the Commonwealth to lease it to Nabalco.

This case added to the growing pressure for recognition of Aboriginal land rights expressed, for example, by the establishment in 1972 of the Aboriginal Tent Embassy in front of Parliament House in Canberra. In 1973 the Whitlam Government commissioned Edward Woodward QC, counsel for the Yolgnu plaintiffs in the Gove land rights case, to hold a Royal Commission into the appropriate means to recognise the traditional rights of Aboriginal people in land. Recommendations from Woodward 's report provided the basis for the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The Commonwealth was able to pass this legislation because it had legislative responsibility at the time for the Northern Territory. In 1973 the NSW Aborigines Act 1969 was amended to create the Aboriginal Lands Trust, in which title to the 56 remaining Aboriginal reserves was vested. The aim of the Trust was to lease the land to Aboriginal people "in a scheme of collective ownership".

Relying on non-government funds, the NSW Aboriginal Land Council was formed in 1977 to lobby the NSW Government for recognition of Aboriginal rights to land. It initiated 10 land claims between 1977 and 1981, calling for "community ownership of land on the basis of traditional ownership rights, cultural heritage, and social and economic needs"; emphasising "the aspirations of local communities to have direct control over the land they occupied" (Review of the Aboriginal Land Rights Act 1983 (NSW), Background Paper, at 1.4.2 (1997)).

)

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In 1978, partly in response to this lobbying, the NSW Government established the Select Committee of the Legislative Assembly upon Aborigines under the chairmanship of Maurice Keane MP. The Keane Report on behalf of that Committee provided the basis for the Aboriginal Land Rights Act 1983 (NSW) - the first State-wide legislation of its kind in Australia.

What are land rights and native title? [20.50] Land rights and native title are different forms of interest in land.

Land rights provide a form of freehold title to Aboriginal bodies eligible to hold the title. In NSW they are created under State law, the Aboriginal Land Rights Act 1983, and titles may be vested in a statutory corporation (usually a land council) for the benefit of Aboriginal people. Native title is a right to land that has its source in the traditional laws and customs of the societies of indigenous peoples occupying Australia and the Torres Strait Islands when the British acquired sovereignty. This title is recognised by the common law and, since 1993, through the procedures set out in the Native Title Act 1993 (Cth).

Constitutional recognition [20.60] As a result of amendments made by the Constitution Amendment (Recognition of Aboriginal People) Act 2010 (NSW), enacted with bipartisan support, the NSW Constitution Act 1902 now provides (s 2):

(20.80)

chapter 20 Aboriginal land and heritage in NSW

The NSW Aboriginal Land Rights Act 1983 represents a less cumbersome mechanism for holding land than that introduced ten years later by the Commonwealth Native Title Act 1993 (Cth) (see pp [20.220]). Land acquired under the Aboriginal Land Rights Act 1983 may be utilised or even sold in the interests of members of the LALC as long as there is compliance with stringent measures (Division 4, s 42G; see [20.120]-[20.140]). The vesting of freehold in a LALC under the Aboriginal Land Rights Act 1983 offers a simpler and more adaptive form of title than can be achieved through a native title claim. Grants under the Aboriginal Land Rights Act 1983 can be a means of resolving native title claims. Since 1994 there have been a number of agreements reached between Aboriginal people and the State whereby land claimed in a native title application has instead been granted under the Aboriginal Land Rights Act 1983 to a LALC or other corporation of which the claimants were members. Such arrangements have settled a number of native title claims or aspects of those claims in NSW, for example, in Byron Bay, Wellington, Gilgandra and Coonabarabran. The existence of the Aboriginal Land Rights Act 1983 in NSW was one reason why the State was slow to respond to native title claims. There was a bureaucratic and, at times, political perception that NSW, as the first State to pass State-wide land rights legislation, had "done its deal" with Aboriginal people, and that the Aboriginal Land Rights Act 1983 represented appropriate compensation for dispossession. It was also thought - erroneously- that colonisation and occupation had "washed away" Aboriginal peoples' traditions and connection to land in NSW, meaning they would be unlikely to succeed in demonstrating that their native title rights and interests had survived colonisation and the expansion of occupation of land in NSW throughout the 20th century. There have also been misunderstandings amongst Aboriginal people about how rights and interests acquired under the Aboriginal Land Rights Act 1983 fit with rights and interests in land capable of recognition under the Native Title Act 1993.

(1)

Parliament, on behalf of the people of New South Wales, acknowledges and honours the Aboriginal people as the State's first people and nations.

(2)

Parliament, on behalf of the people of New South Wales, recognises that Aboriginal people, as the traditional custodians and occupants of the land in New South Wales:

Structure

(a)

[20.80] The NSW Aboriginal Land Rights Act 1983 established a system of local, regional and

. (b)

have a spiritual, social, cultural and economic relationship with their traditional lands and waters, and have made and continue to make a unique and lasting contribution to the identity of the State.

The NSW Aboriginal Land Rights Act [20. 70] In NSW, land rights are the interests acquired under legislative measures that provide for

land to be held as a particular kind of freehold by local or the State Aboriginal land councils corporate bodies whose members are Aboriginal people. The Aboriginal Land Rights Act 1983 (NSW) has been a powerful instrument in the development of resources for NSW Aboriginal people. Local Aboriginal land councils (LALCs) and the State Land Council (NSWALC) have become significant institutions for Aboriginal and non-Aboriginal people in both rural and urban areas. The Aboriginal Land Rights Act 1983 most significantly provides that Crown land not used or required for an essential public purpose can be claimed by and granted to a LALC or to NSWALC (s 36).

State councils of elected representatives of Aboriginal people in NSW. LALC' s were established as bodies corporate able to hold and acquire land under the Aboriginal Land Rights Act 1983, and to run enterprises and manage housing on the lands. Boundaries of LALCs were drawn throughout the State, including within their borders land formerly held by the Aboriginal Lands Trust. Former trust lands were vested in freehold in the relevant LALC. Adult Aboriginal people may be members of a LALC (s 54) if:

• they reside within the LALC boundaries, • they hav-e-an--a\ociation with the area and have been accepted as a member by a meeting of the relevant council, or • the person is an Aboriginal owner of land within the LALC boundaries and has made a written application for membership. Regional councils had a role in providing financial and other assistance to LA~Cs althou~h those functions have now largely been subsumed by local or State bodies. The reg10nal councils were abolished in the 2006 amendments to the legislation.

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For the first 15 years of the Aboriginal Land Rights Act 1983, 7.5% of all land tax paid in NSW was allocated to a fund to support implementation and operation of the Act. The State level council, NSWALC, was made responsible for receiving and managing this fund. This funding was declared to be part of a compensation package to Aboriginal people under the Aboriginal Land Rights Act 1983 for their dispossession and the prior revocation of reserve lands. Half of the funding was retained as core capital, preserved to support the functions of the councils at the end of the 15 year period. The other half was available for the establishment and other operational costs of running up to 121 LALCs and the other bodies. NSWALC or a LALC can also utilise their funding to purchase, lease or otherwise acquire land (s 38).

Who can claim land? [20.90] A critical difference between the NSW Aboriginal Land Rights Act 1983 (NSW) and the earlier Commonwealth Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) is that traditional connection to the land is not a prerequisite for an Aboriginal person to be a member of a LALC, and it is not included in the criteria which must be satisfied to establish entitlement to claim land.

The Preamble to the Aboriginal Land Rights Act 1983 states that: 1.

Land in the State of New South Wales was traditionally owned and occupied by Aborigines;

2.

Land is of spiritual, social, cultural and economic importance to Aborigines;

3.

It is fitting to acknowledge the importance which land has for Aborigines and the need of Aborigines for land;

4.

It is accepted that as a result of past Government decisions the amount of land set aside for Aborigines has been progressively reduced without compensation ...

As the legislation was designed to address the dispossession of Aboriginal people in NSW, the scheme to achieve Aboriginal land ownership focuses on whether land is claimable rather than on the traditional identity of the claimant. Under the Aboriginal Land Rights Act 1983 (s 36), either the relevant LALC or NSWALC can claim land on behalf of LALC members.

Claiming land [20.100] The key provision that allows land councils to acquire land under the Aboriginal Land

Rights Act 1983 is section 36. This provides that claimable Crown lands may be claimed by LALCs or NSWALC where:

• the lands can be lawfully sold or leased, or are reserved or dedicated for any purpose under the Crown lands legislation (see Chapter 4); • the lands are not lawfully used or occupied (Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48 (the Wagga Motor Registry case)); • the lands are not needed for residential or other essential public purposes (Minister Administering Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] [2001] NSWCA 28 [51]-[68]); and

[20.130]

•

chapter 20 Aboriginal land and heritage in NSW

the lands are not subject to a registered claim for native title or determination that native title exists (s 36(1)(d), (e)) .

The Register of Land Claims, maintained by the Registrar of the Aboriginal Land Rights A ct 1983 (NSW) lists the land where claims have been lodged. Members of the public may ask to inspect the register (ss 166 - 169).

If the NSW Minister for Aboriginal Affairs refuses a claim, a land council can appeal to the NSW Land and Environment Court (s 36(6)).

Applying the test [20.11 OJ The test for whether or not the land is claimable must be applied when the claim is

lodged (New South Wales Aboriginal Land Council v The Minister (1988) 14 NSWLR 685 at 694 per Hope JA). Foresight, not hindsight is the appropriate perspective for the Minister in assessing whether or not a land claim should be granted- that is, the Minister should consider the circumstances that applied when the application was lodged, not the events that took place after lodgment and which could not have been foreseen. Such events have included a change in government and policy in relation to certain parcels of Crown land (Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28). The High Court considered its first case arising under the NSW Aboriginal Land Rights Act 1983 in 2008 in Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48 (the Wagga Motor Registry case). In that case the Court considered what constituted "use" of land, upholding a NSW Court of Appeal decision ordering the Minister to transfer the derelict old Wagga Motor Registry, which was being prepared for sale by the State, to the Wagga Wagga LALC. The High Court held that the decision to sell and preparation of the site for sale did not constitute "use". The Court focused on the legal characterisation of the acts, facts, matters and circumstances which deprived the land of the characteristic of being "not lawfully used or occupied". In doing so the High Court said it was not necessary to adopt a "beneficial construction" of the Aboriginal Land Rights Act 1983.

Disposing of land [20.120] LALCs are able to sell land (Division 4, ss 40 - 42). They have come under pressure to release some of their holdings for development and also to improve their financial position to better manage other land that they hold. These issues are sometimes hotly contested among the members of a LALC or by other indigenous interest holders, who disapprove of the alienation of land acquired for the benefit of Aboriginal people including the extinguishing consequences for any native title that subsists in that land (see [20.610]). Concerns about ensuring appropriate dealings with land led to amendments in 2009 requiring NSWALC approval for certain transactions with their land proposed by LALCs.

Preconditions for dealings with land [20.130] To deal with land vested in it, a LALC must have the approval of NSWALC (ss 42D, 42E, 42G) except for leases less than three years and other dealings which may in the future be identified in regulations. If the dealing concerns land transferred under section 36 the Minister must be notified (s 42E(3)).

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What constitutes "a dealing with land" is defined broadly in section 40. It includes selling and leasing; granting a mortgage, easement or covenant; entering a biobanking agreement (see [12.1590]-[12.1620]), a conservation agreement (see [12.1610]), a wilderness protection agreement (see [4.260]) or a property vegetation plan (see [11.80]); subdivision and making a development application. Prior to seeking NSWALC approval the LALC must call a meeting of members of the land council for the purpose of considering the issue. A quorum (defined in Schedule 3) must be present, and 80% of those present and voting must vote to support the sale or disposal (s 42G(5)); New South Wales Aboriginal Land Council v Mark Hoddinott [1999] NSWLEC 41 (12 February 1999)). The cultural and heritage significance to Aborigines of the land is something that must be considered by the LALC and also by NSWALC in making their decisions. Land is of "cultural and heritage significance to Aborigines" if the land is significant in terms of the traditions, observances, customs, beliefs or history of Aborigines (s 40). NSWALC can withhold approval of the proposed dealing if it is of the opinion that the dealing is contrary to the interests of LALC members (s 42G(2)).

Restrictions on dealings [20.140] Even where there has been compliance with the preconditions noted above, a land

council cannot deal with its land unless the question of whether there are any natir tle rights and interests has been resolved (s 42). The restriction does not apply if the dealing is with the Environment Minister under Part 4A of the National Parks and Wildlife Act ~974 (NSW) (s 42(2)(a)). Part 4A provides for lands vested in and/or granted to a land council to be leased to the Minister for reservation and co-management with the Aboriginal owners as part of the national park estate (see [20.760]).

Establishing that native title is extinguished [20.150] The Commonwealth's Native Title Act 1993 provides, that granting exclusive

possession interests, such as freehold, extinguishes native title (see [20.330]). However, where that freehold has been vested to or for the benefit of Aboriginal people under provisions such as land rights legislation, the Native Title Act 1993 provides that prior extinguishment must be disregarded (s 4 7 A). Lands transferred to a LALC in fee simple will be subject to any native title rights and interests existing in the lands immediately before the transfer (s 36(9) and (9A)). With limited exceptions (s 37(3)), a land council may not deal with land vested in it that is subject to native title rights and interests unless the land is the subject of an approved determination of native title (s 42 ). In practice this involves land councils filing a non-claimant application (see [20.620]) under the Native Title Act 1993 in the Federal Court, seeking a determination that native title has been extinguished.

chapter 20 Aboriginal land and heritage in NSW

[20.190)

•

it is not being used for a residential purpose and a resolution has been passed declaring it to be land of spiritual or cultural significance to Aboriginal people (cl 7(c); Dareton Local Aboriginal Land Council v Wentworth Council [1995] NSWLEC 239).

The application for exemption must be approved by the Minister for Aboriginal Affairs, whose decision is governed by a set of guidelines (available from the website of Aboriginal Affairs NSW: http://www.daa.nsw.gov.au). Applications are generally made i~ relation ~o vacant lands vested in the land council that are not yet utilised for a commercial or residential purpose. The exemption may also apply to former Aboriginal reserves (Regulation, ~chedule 1)_ and land of spiritual or cultural significance. Exemptions may only be claimed for a fiv~ year penod, and may be renewable upon application. Less than 50% of applications for exemption are successful. Aboriginal land cannot be sold for non-payment of rates (s 44). The rating authority can recover the unpaid rates from NSWALC (s 44A). NSWALC may then recover rates from the LALC in whose area the relevant land lies (s 44A(3)).

Mining on land council land [20.170] Under section 45, mineral resources in land successfully claimed by an Aboriginal land

council vest in the land council. This does not include (s 45(11)):

• rights gold • rights to silver • the Crown's ownership of coal and petroleum. to

Mining operations cannot be carried out on land council land without its consent (s 45(~)). A LALC must gain the consent of NSWALC or the Land and Environment Court before 1t can validly consent to mining on its land (s 45(6)). Consent from NSWALC or the Court c~n only be withheld if the terms under the agreement would be inequitable to the LALC or detnmental to the interests of members of other LALCs (s 45(9)). Fees and royalties for mining on land owned by a LALC are payable to NSWALC which retains 40% and disburses the remaining 60 % to the LALC (s 46).

Agreements to permit hunting, fishing or gathering [20.180] Section 4 7 provides that agreements may be negot~ated ~~ LALCs ~ith owners,

occupiers or controllers of land (including private land) to permit spec1f1ed Abongmal people to have access to the land for hunting, fishing or gathering. If agreement cannot be reached, the LALC may apply to the Court for a permit conferring those rights (s 48). These provisions have not yet led to any agreements between LALCs and other land owners about how such rights can be exercised.

Rates and rate exemptions [20.160] Land held by LALCs can be exempt from rates (s 43). The Aboriginal Land Rights

Regulation 2002 provides that land may be exempt if:

•

it is not being used for a commercial or residential purpose (cl 7(6)), or

The Register of Aboriginal Owners [20.190] The Register of Aboriginal Owners, maintained by the Registrar of the Aboriginal

Land Rights Act 1983, aims to record:

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• • •

[20.200)

the name of every Aboriginal person who has a cultural association with land in NSW

[20.220)

(e)

if the plan contains particular proposals related to the strategies in paragraph (a), (b) or (c), strategies for the development or acquisition of human resources and skills to implement the proposals

(f)

timelines for the achievement of proposed strategies and proposals in the plan

(g)

particulars of the assets and liabilities of the Council.

the location of the land the nature of the cultural association that the Aboriginal person has with the land.

Those whose names are entered must be directly descended from the original Aboriginal inhabitants of the cultural area in which the land is situated, and have a cultural association with the land that derives from the traditions, observances, customs, beliefs or history of the original Aboriginal inhabitants of the land (ss 170 - 175). This last requirement was introduced after the passage of the Native Title Act 199 3 (Cth). One of the criticisms made by Aboriginal people of the Aboriginal Land Rights Act 1983 was that it appeared to assume that traditional cu re and connection to specific lands had been eradicated by the impact of colonisation and the disp ssession of many Aboriginal people of their land in NSW. NSW Aboriginal people, who retained knowledge of their connection to country, were concerned that vesting land in statutory bodies corporate such as LALCs further burdened their prior ownership and occupation of an area. In order to register the connection retained by Aboriginal people to their traditional countries and cultures in NSW, the Register of Aboriginal Owners was introduced and amendments were made in 1996 to the National Parks and Wildlife Act 1974 in relation to Aboriginal ownership of national parks.

Other functions of land councils [20.200] The State land council structure is a significant Aboriginal structure and resource in NSW. The land councils provide a focal point for Aboriginal aspirations, for the accumulation of experience and achievement and to represent the views and needs of Aboriginal people in NSW. They are also the entry point for non-indigenous people and government bodies seeking the involvement of Aboriginal people in an increasing number of fields. Apart from acquiring land through claim and purchase, LALCs carry out a number of other duties set out in section 52. These duties include managing land and a number of cultural heritage functions. Land councils communicate with the Director-General of the Environment Department about lands of cultural significance to Aboriginal people and members may participate in cultural heritage site surveys, inspections and cultural heritage "clearance" of sites where development is proposed. Land councils have a variety of responsibilities in relation to Aboriginal housing on their land, including acquiring, leasing, constructing and managing housing. Many land councils also provide employment and training services and assistance with legal affairs. LALCs must prepare a community, land and business plan (s 82) in consultation with LALC members, persons who have a cultural association with land in the land council's area and other stakeholders. The matters that community, land and business plans must cover include (s 83 ): (a)

the objectives and strategy of the Council for the acquisition, management and development of land and other assets

(b)

the objectives and strategy of the Council for the provision and management of community benefits schemes

(c)

the objectives and strategy of the Council for carrying out business enterprises and investment

(d)

the objectives and strategy of the Council in relation to Aboriginal culture and heritage

chapter 20 Aboriginal land and heritage in NSW

LALCs may be asked to participate in dispute resolution involving Aboriginal people in their area (s 106(3)). They also have the duty to promote the protection of Aboriginal culture and the heritage of Aboriginal people in their area (s 52(4)).

Review of the Act [20.210] The Aboriginal Land Rights Act 1983 is periodically subject to review most recently in 2012 . In 2006 and 2009 the Act was substantially amended to provide a clearer regulatory framework for Land Councils when disposing of and developing land. One of the challenges facing the land councils has been called "scope creep": more and more tasks are imposed on the land council structure, at times at the cost of its core functions and without additional resources for the added tasks. Some land councils' functions have become focused on advocacy for Aboriginal people and on social issues such as equitable housing and employment, in addition to claiming and managing land. Amendments made in 2013 and 2014 facilitate property and land dealings by Aboriginal Land Councils, as well as covering regulation of membership, entry into agreements between the Crown Lands Minister and arrangements relating to business enterprise functions of Aboriginal Land Councils amongst other things. More than 36,700 land claims have been lodged by LALCs or NSWALC since the passage of the Aboriginal Land Rights Act 1983, with more than 25,000 still awaiting determination. More than 4,000 have been refused and just over 2,500 of the claims granted. While the Act has returned almost 82,000 hectares of land to the ownership of Aboriginal people, this represents less than 1 % of land in NSW. It is nevertheless a substantial asset base, requiring highly developed management skills and strategies. Amendments to the Aboriginal Land Rights Act 1983 have focused upon adaptation to the recognition of native title, on issues of governance and accountability and on the method and processes to be followed in dealing with land. Substantial provisions have been added to guide LALCs and NSWALC in discharging their responsibilities to their members, to each other and to the Minister.

Native title Background [20.220] In Australia, unlike other Commonwealth countries, the rights and interests held by indigenous people in their traditional lands have only been recognised since the decision of the High Court in Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo No 2). That decision was handed down ten years after Eddie "Koiki" Mabo and other Meriam people of the Murray

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[20.260)

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Islands in the Torres Strait to the north of Cape York, commenced proceedings in the High Court seeking recognition of their traditional rights to Mer, Waier and Dauar Islands (or . Murray Islands). Since 1973, Commonwealth governments (including those of Whitlam, Fraser and Hawke) had promised but failed to provide a national land rights scheme. With the failure of the political commitment the only avenue for the plaintiffs in the Mabo case, to pursue recognition of their inherent and traditional rights to land, was through the courts.

the common law applied in Australia. The Court found that, contrary to the development of the laws of tenure in Australia during the 19th and 20th century, Australia was not terra nullius in 1788. It was a land in which law existed when sovereignty was acquired and therefore, by the ordinary operation of the common law, those local laws were capable of recognition as "native title". It followed that, where native title had not been extinguished by the grant of an inconsistent interest by the Crown, it might still survive.

The decision in Mobo [No 2)

The Court held that the source of native title was not the Crown but the occupation of the land by the original inhabitants in accordance with a system of traditional laws and customs. It is this system which is the source of the rights and interests which comprise the group's native title (Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422). The nature of the rights and interests comprising the native title will vary from group to group, and be found in the traditional laws and customs of these groups.

[20.230] On 3 June 1992 the High Court held that where, in relation to particular land, Aboriginal people and Torres Strait Islanders can show they are descended from the original inhabitants and have maintained their traditional laws and customs, then unless their title has been extinguished by the grant of an inconsistent interest, their rights and interests in the land are recognised by the common law as native title.

The Mabo No 2 decision is a significant work of scholarship about the history of land law, the modes by which the British (and other European) colonial powers acquired sovereignty, the development of concepts of tenure in Australia, the role of the High Court and the history of settlement of Australia. It is the touchstone for understanding how recognition of native title in Australia was achieved and its location in the common law (Wik Peopies v Queensland (1996) 187 CLR 1). The decision analysed the common law brought to Australia when the British acquired sovereignty. The plaintiffs did not challenge the acquisition of sovereignty over Australia by the British, as had been done in an earlier land rights case, Coe v Commonwealth (1979) 53 ALJR 403; 24 ALR 118. In Coe the decisions of Jacobs and Murphy JJ presaged the approach later taken in Mabo No 2, in particular reconsideration of the doctrine of terra nullius (or "land empty of law") in Australia: The plaintiff is entitled to endeavour to prove that the concept of terra nullius had no application to Australia, that the lands were acquired by conquest, and to rely upon the legal consequences which follow. He may rely, in the alternative, on common law rights which would arise if there were peaceful settlement. Whether the territory is treated as having been acquired by conquest or peaceful settlement, the plaintiff is entitled to argue that the sovereignty acquired by the British Crown did not extinguish "ownership rights" in the aborigines and that they have certain proprietary rights (at least in some lands) and are entitled to declaration and enjoyment of their rights or compensation. (Coe v Commonwealth per Murphy J at [9]). In Mabo No 2, the Court reviewed the mechanisms of the common law that provided for the recognition of local law in places where the British had acquired sovereignty.

Recognising indigenous inhabitants' rights [20.240] In Mabo No 2, the High Court found that the radical title to the land, acquired with sovereignty by the Crown, did not confer absolute beneficial ownership of the land. The antecedent rights and interests in the land possessed by the indigenous inhabitants survived the change in sovereignty, constituting a burden on the Crown's radical title. A change in sovereignty did not of itself extinguish those rights and interests.

The Court found that this was the way in which the common law had operated in all territories over which the British Crown had acquired sovereignty. It was thus the way in which

Extinguishment and compensation [20.250] Native title is extinguished where the Crown has granted an interest conferring exclusive possession or where the people no longer observe traditional law and custom. The Court found the Crown had the power to extinguish native title where it evinced a clear and plain intention to do so. Where extinguishment had occurred prior to the passage of the Racial Discrimination Act 1975 (Cth) through the grant of an inconsistent interest, no compensation was payable. Where the creation of an adverse interest had occurred after the passage of the Racial Discrimination Act 1975, compensation was payable for any extinguishment or impairment of native title.

Responses to the Mobo decision [20.260] The Mabo No 2 decision created an enormous public debate: various groups responded that the recognition of native title was a radical departure from the settled law of Australia and likely to destabilise fundamental notions of property to the detriment of the economy. Lobbyists from the mining, pastoral and agricultural sectors were particularly vocal about the need for a legislative response to the decision in order, in their terms, to re-establish certainty and security about interests in land. Dire predictions were made about the consequences of native title surviving and being recognised in Australia. This was despite the Court's finding that native title was extinguished by the grant of freehold or interests that conferred exclusive possession, and that if other interests had been granted that did not involve exclusive possession, native title was burdened to the extent of any inconsistency between these rights (see also the discussion of the Wik decision on [20.350]).

To other observers, the decision was legally conservative, even though it changed the previous understanding about indigenous peoples' formal interest in land. In important respects it preserves the status quo: native title is extinguished or burdened by interests that are inconsistent with it. On the other hand, where traditional law still exists and where there has been no extinguishment, it is possible for that law to still operate and for interests in land held under that law to be recognised. The definition of extinguishment adopted in Australia departs from that in Canada and other common law countries. In Australia, extinguishment over particular land is permanent, no matter what subsequently happens to the tenure or whether there is, despite intervening interests,

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ongoing connection to that land by its traditional owners (Fejo v Northern Territory of Australia (1998) 195 CLR 96; Wilson v Anderson (2002) 213 CLR 401). Canada and other jurisdictions allow for the revival of native title when an adverse interest ceases (Delgamuukw v British Columbia 1997 3 SCR 1010). During 1993, a Commonwealth Bill was negotiated between the Labor government and indigenous leaders. It was designed to express the outcome of the Mabo No 2 decision in statutory form and to address a number of questions posed but unresolved by the decision. It contained important compromises between the negotiating parties: one was that all interests in land created by the Crown were valid (eg, freehold and any other interest from exclusive possession through to a mere permissive occupancy), whether they were created before or after the passage of the Racial Discrimination Act 1975 (past acts). Concern about potential invalidity for some interests in land created since 1975 arose because they came after the passage of the Racial Discrimination Act 1975. Where it could be shown that the creation of an interest in land after 1975 had an adverse impact on the title of indigenous people, and it did not have this impact on any other title, that interest risked invalidity for being contrary to the Racial Discrimination Act 1975 (Mabo (No 1) v Queensland (1988) 166 CLR 186; Racial Discrimination Act 1975, ss 9, 10).

The Native Title Act [20.270] After one of the longest debates in parliamentary history, the Native Title Act 1993 (Cth) ("the Act") was passed in December 1993. Recognition of native title is now regulated by the provisions of the Act (Western Australia v Commonwealth (1995) 183 CLR 373; Western Australia v Ward (2002) 213 CLR 1). The Act established procedures that, from 1 January 1994, deal with four main issues:

• recognition of native title • confirmation of the validity of the grant of prior interests (past acts) • determination of compensation for extinguishment of native title that has occurred since the passage of the Racial Discrimination Act 1975 • the creation of new interests in land where native title has not been extinguished (future acts and the right to negotiate).

The Native Title [New South Wales) Act 1994 [20.280] The Commonwealth Act entitles the States to adopt measures that confirm the validity of interests in land created by the States, in particular those since 1975. After the passage of the Native Title Act 199 3 each State passed complementary legislation that validated certain past acts of the States creating interests in land. In NSW, the Native Title (New South Wales) Act 1994 validates past acts, confirms that previous exclusive possession acts, such as freeholding land, extinguish native title and confirms that previous non-exclusive possession acts (such as the declaration of national parks, or pastoral activity licences) burden native title to the extent of inconsistency between the rights and interests. While this legislation confirms and applies these precepts to relevant acts of the Crown

[20.310)

chapter 20 Aboriginal land and heritage in NSW

in NSW, it adopts all other measures of the Commonwealth legislation. The discussion in this Chapter refers only to the Commonwealth Native Title Act 1993.

Who may claim native title? [20.290] It is fundamental to the basis for, as well as the purposes and scheme of the Native Title Act 1993, that native title claimants are people who are the descendants of the original inhabitants and are connected to their country through ongoing observation of traditional law and custom. They must demonstrate that those traditional laws and customs exist and bind the people who are part of their group (s 223). Only those who claim not to have lost their native title can file an application seeking recognition of native title (Kanak v Minister for Land and Water Conservation (2000) 106 FCR 31).

Negotiation about future acts [20.300] In exchange for acceptance of the validation of past acts, with the consequential extinguishing effect of many of those interests on native title, people who hold (or claim to hold) native title were given a procedural right to negotiate in relation to the doing of future acts (ie creation by the ·state of new interests in land), such as the creation of a mine, in their traditional country. This right can be exercised while an application for recognition of their native title rights and interests is being processed, and it means that future acts are not "on hold" while native title claimants prove their native title rights and interests exist. The right to negotiate was heavily circumscribed but it gives traditional owners the right to "speak for their country" during the processes that create rights for others in that land.

The Notional Native Title Tribunal [20.310] The National Native Title Tribunal was established under the Native Title Act 1993 to deal with native title matters and accept native title applications for processing. Its functions have been further developed and adapted since the Act was passed as the Act has been amended from time to time. The Tribunal comprises a President and Members and the Native Title Registrar, who make decisions, conduct inquiries, reviews and mediations, and assist various parties with native title applications, and Indigenous Land Use Agreements (see [20.390]). The President and Members' statutory functions include:

• arbitral decision making • administrative decision making • conducting inquiries • conducting mediations • conducting reviews • assisting parties with agreements to settle applications • assisting parties to negotiate indigenous land use agreements • assisting representative Aboriginal and Torres Strait Islander Bodies under the Act. • •

The Native Title Registrar has statutory responsibilities including: maintaining the National Native Title Register the Register of Native Title Claims and the Register of Indigenous Land Use Agreements

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• •

[20,320]

[20.360]

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assessing claimant applications for registration giving notice of native title applications and ILUAs registering ILUAs

• providing assistance • providing information. Types of application

[20.320] ~our types of application concerning native title may be made under the Act (s 61):

• an applicat10n by persons claiming native title (claimant applications) • an application by persons with an interest in land wanting to know if i't m b b' · ·l · h d• ay e su Ject to native tit e ng ts an mterests (non-claimant applications) • an(compensation applicati?n for com~ensation for extinguishment of native title by acts done since 1975 applications) • an application for revocation or variation of a native title determination. Various administrative applications about matters arising under the Act l (ss 69, 75). may a so be made

Extinguishment and traditional laws and customs [20.330] _The la_w does not recognise any rights which have as their source traditional laws and cus~om~, if previous _acts of the Crown have extinguished native title. Such acts may not have extmgmshed or eradicated the traditional laws and customs in fact though th d • l ud h N - . , ey may o so m aw. ~ er t e ative Title Act 1993, prior extinguishing interests (or previous exclusive p~ssessi~n ~cts) prevent the Court from determining that native title exists in relation to the re evant an . Such land may not be claimed. However, the grant of those interests may not have affected whether or not t~e local indigenous people continue to live according to their traditional laws. The grant of exclusive possession may prevent access by people to parts of their traditional country and may have affected ceremonies and other aspects of their traditional laws and customs. H?wever, those barriers will not of themselves extinguish the laws and customs bindin on the tradltlonal owners of country even though under non-· d' l_ h g f l ·• . .' ' m igenous aw, t ere can be no orma recogmt10n of any nghts or mterests in the land that flow from the tradition l l (D Rose v South Australia (2003) 133 FCR 325). a aw e

The 1998 amendments to the Native Title Act [20.340] The _1993 Act has been significantly amended on a number of occasions since _ 1993 most notably m 1998, 2007 2009 and 2010 The · · l · . . . , _ • ongma structure provided that once an apphc~t10n was lodg_ed with the Nat10nal Native Title Tribunal, the matter would be mediated b the Tnbun;1· !he Tnbunal, through mediation, would endeavour to assist the parties to see wha: issues cou e settled by agreement. If the application was unopposed, or agreement was rea~hed.' the,;nbunal could determine the outcome, for example, that native title claimants held native title ( Old" Native Title Act 1993 ss 70 71 73) If · • . . , , , . no agreement was possible or 1f any 1ssu~s remamed contested, then the Tribunal would refer the application to the Federal 'court f or h eanng.

Not long after the Tribunal's establishment, the decision of the High Court in Brandy v Human Rights and Equal Opportunity Commission (1995) 127 ALR 1 found that determination of a matter was a judicial function that could not be carried out by a tribunal. This meant that some of the functions the National Native Title Tribunal was designed to carry out had to be performed by the Federal Court. For this and other reasons that emerged from the preliminary operations of the Tribunal, the Native Title Act 1993 required amendment (see eg, Northern Territory v Lane (1995) 138 ALR 544; North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595).

The Wik decision [20.350] In Wik Peoples v Queensland (1996) 187 CLR 1, the High Court considered the effect on native title of the grant of pastoral interests over land in far north Queensland. The Court found that use of the word "lease" in the context of the pastoral interests created by the State did not import the common law concept of exclusive possession. The Court held that the kind of proprietary interests the pastoralists had over the land claimed by the Wik and Thayorre peoples depended on the instruments that created those interests. Where the instruments did not confer exclusive possession, the rights of others such as native title holders could co-exist with the pastoral interests and activities. Consistently with Mabo No 2, the Court found that the grant of an interest that was less than exclusive possession would not extinguish native title but would burden it to the extent of the inconsistency. In the event of any conflict between the rights and activities enjoyed by the pastoralist and native title holders, the rights created by the state prevailed over the traditional rights.

The Ten Point Plan [20.360] Following the change of Commonwealth government in 1996 the Howard Government proposed extensive changes to the Act, particularly in response to the High Court's decision in Wik Peoples v Queensland (1996) 187 CLR 1. The changes were known colloquially as the Ten Point Plan. The Plan included many more than ten changes: the Ten Points were really ten headings under which the hundreds of proposed changes were explained.

Aspects of the Ten Point Plan included some amendments that drew broad support. These included the introduction of a procedure to assess claims before they were entered on the Register of Claims (the registration test) and a statutory framework for indigenous land use agreements amongst others. However, the scale of changes proposed for the Act by the Ten Point Plan provoked another strident public debate about the merits of recognising the rights of indigenous people to their traditional lands. The Act was finally amended in July 1998 with independent Senator Brian Harradine eventually playing a pivotal role in relation to its final form. His four "sticking points", conceded by the government to gain his support for the Bill to pass the Senate, included:

• •

that the Native Title Act 1993 had to be subject to the prov1s10ns of the Racial Discrimination Act 1975 that there should be no "sunset clause" (the Bill had proposed a period of six years within which Indigenous people had to prove their native title)

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[20.370]

that the new registration test for applications should not require indigenous people to prove they had had ongoing physical connection to the area claimed, particularly where, for example, they had been locked out or removed that the right to negotiate about future acts prior to a determination should remain.

The National Native Title Tribunal and the Federal Court [20.370] The 1998 legislation included amendments responding to the Brandy decision (see

above). All current matters lodged with the National Native Title Tribunal were referred to the Federal Court. From 30 September 1998, the applications to the Tribunal became proceedings before the Federal Court, no matter what their status had been before the Tribunal. The Court, overnight, was vested with over 800 sets of proceedings. From that date all new native title applications are filed with the Federal Court, not lodged initially with the National Native Title Tribunal. Following the 1998 amendments, applications filed with the Court are then sent to the Tribunal for registration testing and notification. At the end of the notification period (three months) the Court confirms the parties to the application from those responding to the notice. The Court may then refer the matter for mediation. The Court may refer a matter for mediation other than to the National Native Title Tribunal. The Court maintains a list of people who may be appointed as mediators. While the parties explore whether the application might be settled by agreement, it is subject to case management by the Federal Court judge into whose docket the matter has been placed. Close case management is seen by the Court as an important way of keeping the applications on track. The Court is no longer tolerant of the time native title applications take to resolve and will often programme them for trial against the wishes of all parties. This is seen as a way of focussing the parties attention on resolution of the proceedings and improving the rate of disposition of native title applications (Budby v Queensland [2013] FCAFC 149 per Dowsett J at [52] - [57]). All State and other major parties to native title applications profess a preference to engage in mediation not litigation of applications. In the 1998 and subsequent amendments the Tribunal has retained mediation and other functions designed to assist parties to native title applications such as mapping, research and communication. For some commentators and participants this arrangement did not prove to be completely satisfactory leading to several adaptations to the allocations of institutional responsibilities between the Federal Court and the Tribunal in subsequent amendments to the Act.

Intermediate period acts [20.380] The 1998 amendments confirmed the validity of "intermediate period acts" - that is, new interests created since the Native Title Act 1993 was passed in 1993 that risked invalidity for failure to follow Native Title Act 1993 procedures. In 1998 comprehensive schedules of extinguishing interests arising from legislation created by each State and Territory were appended to the Act. States then passed complementary legislation validating any intermediate period acts in the same way as they had passed earlier acts adopting the Commonwealth legislation.

Indigenous Land Use Agreements [20.390] The 1998 amendments included provisions to register settlement of a native title claim or aspects of the claim through an Indigenous Land Use Agreement (ILUA) (Part 2, Division 3, Subdivision A- E). These agreements are registered with the National Native Title Tribunal and

[20.420]

d d waters. Often they concern future acts and the 1 te to use and management o f Ian an . . h re a . .1 . h d .nterests and other rights and mterests m t e area relationship between native tlt e ng ts an. i subject to the agreement. They may deal with:

• extinguishment of native title • how future acts will occur. in the ILUA area d• • how parties' co-existing nghts an mterests are to be eni· oyed in the ILUA area • compensation • other matters arising from a native title claim.

. . . The agreements are binding on the parties to them and on any person holding nat1ve title m the

area subject to the agreement.

Specific future act arrangements

.

. h . h f t" e title holders with respect to [20.400) In 199 8 different regimes concernmg t e ng . ts o na iv . . . . 3· the following categories of interests and activities were mtroduced m Part 2, D1v1s10n .

• activities associated with primary production (Subdivision G) • management of rights and interests in water and airspace (S_u~division_ ~)• renewal or extension of leases, licences, permits and authorities "l(Subdi~1s10nt"I) future . i·nfrastructures, offshore areas an d ow impac • reserves, public services

acts

(Subdivisions J - N).

Criticism from the United Nations [20.410] The 1998 amendments to the Native Title Act 199_3 a~tr~cte? adverse findin~s fror th~

United Nations Committee on the ti~::ti~:e:!!~ci:: D~~~~~::i~:tt:~!;re ~ho;:~:::at~::al tChat in _the amtheendEml1·me~:;ti~:s;;~; Forms of Racial Discrimination (CERD). Australia _was the onvent1on on d d h. C ent10n first western country against which adverse observations were ma e un er t is onv . The Committee formally observed: . . . . . . I Native Title Act recognises and seeks to protect mdigen~us title,

i°t

:~:tsd~~en:hht~~:i;~;di:gduiAshtorWi~fi:i:~:e :~ge;;~~e 9i;dj=~~;s;;:;: ~~~t~::dd~~~~:;:~; 0 perva e t e amen e c· · I h Id h ded balanced between the rights of indigenous and non-indig:n~t Ji~=rt~s ::;:~e of Act appears to create legal certamty for governments an ir indigenous title. . . . . h tive title laws in Australia. Australia was The Committee resolved to contmue to momto~; e n\ d of 1999 for failing to address its reported to the United Nations General Assem Y at t e en breaches of the Convention.

:;s;:e

Rights relating to proposed future acts ofter 1998 .

T l A

.

.

1993 rovided native utle (20.420) As discussed on [20.270], the original Natt~e it e ct future ~cts in their country. claimants with a right to negotiate with respect to cert~m pro?osed h nge for accepting that all This was the "deal" accepted by the indigenous nego~1awrs m exc . a ne otiate means that .dated thereby extinguishing nauve utle. The nght to g past acts wou Id be Vall ,

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[20.430]

registered claimants can negotiate during the course of their claim about the grant of particular kinds of interests in their traditional country (future acts), rather than waiting until a determination of their native title gives them standing to do so. This arrangement relies on the legal fact that if claimants secure a determination that native title exists, it is merely an act of recognition of rights and interests held by that group of people over their traditional country since time immemorial. The determination does not bring the native title rights and interests into being. Following the 1998 amendments, registration of the application for recognition of native title is required to entitle the native title claim group to exercise a range of procedural rights with respect to future acts such as

• a right to notice of the Government's intention to do a future act (s 29) (eg, grant an interest to a third party in land where native title may not have been extinguished) • a right to comment on acts concerning primary production, airspace or waters (Subdivisions G and H) • a right to compensation and comment in relation to certain kinds of public works and acts

to be carried out which arise from pre-existing rights (ie, rights granted before 23 December 1996 - the date of the Wik decision) eg, renewal, re-grant or extension of primary production leases (Subdivisions I, J and K)

• a right to negotiate in relation to the compulsory acquisition of native title rights and the grant of certain interests particularly those in relation to mining (Subdivision P).

The right to negotiate [20.430] Typically the right to negotiate arises where a party (eg, a mining or exploration company) - the grantee party - is seeking an interest such as an exploration licence or a mining lease, in an area where native title has not been extinguished or the State is seeking to compulsorily acquire native title. The relevant Minister must issue a notice (s 29) that the State proposes to do the future act. If there is a registered native title body corporate or registered claim over that area, the body corporate or native title applicant becomes the native title party to negotiations concerning whether they will consent to the grant of the interest (s 30).

If there is no claim over the area, a native title claim group has three months from the date of issue of the notice to file a claim, and four months to become registered in order to exercise a right to negotiate. The parties have until six months after the date of the notice to negotiate in good faith with a view to obtaining the agreement of the native title party to the doing of the future act subject to such conditions as agreed by the parties (s 31).

[20.450)

•

things produced by the project proposed on the claimed land.

Where good faith negotiations have occurred between the na_tiv_e title party, the grantee ~art: ( 30A) the Minister can grant a vahd mterest to the party seekmg 1t and the governm:t partyA st /" ,(1996) 67 FCR 366· FMG Pilbara Pty Ltd v Cox (2009) 175 (s 31) (Walley v western us ra ta , FCR 141) . Should the parties fail to reach agreement, the matter can be arbitrated (s 35! by the Nati~nal Native Title Tribunal or body designated by the State to carry out arbitral funct10ns . The arb1tral body must determine (s 38):

• that the act must not be done • that the act may be done, or • that the act may be done subject to conditions. If no settlement is achieved or the arbitral body take~ too Ion?, the relevant Minister may determine that the future act may be done subject to certam cond1t10ns (s 36A). The right to comment

.

.

[20.440] Future acts are divided into categories in Division 3, and_ the right to negotiate ~pph~s · ( 25 26) As mentioned above, m many other categones, t e to only one o f t h ese categones ss , · . · h . .1 licant will have no right to negotiate in relat10n to the future act, but mere 1y_a ng t native tit e app b . . ( 24GE(l)(f) 24HA(7}). These "rights" are virtually to comment or to e given notice eg, ss ' . . . (L d ·t bl and rovide a minimally useful opportunity to native title claimants ar t unenflorceaQe l pd (1999) 95 FCR 14 and (2001) 108 FCR 453) . The Full Federal Court Peop es v ueens an 60 [38] h found in Harris v Great Barrier Reef Marine Park Authority (20?0) 98 FCR at d \ e o ortunity to comment is a right limited to an entitlement to explam ~hy_ the act shou~ _not e c;!ied out or be carried out only on certain conditions. There is no obhgat10n on the Mm1ster to respond to these comments.

Negotiating activity on land subject to claim 20.450] Often a grantee party, such as a mining company, !snot_ par~icularly_concerned_ wheth~r ~r not a native title claim group will eventually establish their native title. Their concern is t~ g:m a valid interest from the relevant Minister to carry out an activity on land where native tit ~ . as not been extinguished. By gaining the consent of the native title par_ty to the future ~ct, the _mmmg company will gain a valid interest (that is, the Minister can validly grant t~e kmd of mt~ret sought) . The company is also likely to have sorted out many relevant matters m the course o t e negotiations. These usually include:

Where a new claim is registered by the fourth month after the issue of the notice, the claim group has only the balance of the six month period to negotiate with the grantee party (s 30(1)(a)). The procedures involving preparing, authorising, filing and registering a claim in response to a section 29 notice usually mean that only the remaining two months are available for the negotiation. Parties can extend this period if they wish but a negotiation party can also bring negotiations to a halt on the basis that the statutory period for negotiation has expired (s 35).

• •

The scope of negotiations is not limited and may cover arrangements relating to (s 33 ): profits income

• cultural heritage clearances • monitoring of the land and activity • employment of local Aboriginal people in the project where native title has not been • compensation for impact of the project on country extinguished. 1 f The negotiations may have mapped out an appropriate relationship between the deve ope; o the project and the local traditional owners and established other matters rele:ant to t7e con uc~ of the mine or other project such as, cultural awareness workshops for pro1ect emp oyees an

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contractors, protocols concerning alcohol management, and respect for the decision-making process of the indigenous community. These discussions and negotiations are important: projects of this kind are frequently proposed in more remote areas and local Aboriginal people are likely to be an important source of information and employees for the company. Often communities can be very interested in participation in projects as long as cultural heritage and local matters are dealt with appropriately. Companies can also be motivated to reach a "good" agreement with native title claimants allowing the project to claim a profile as an "ethical investment option". The right to negotiate provides these opportunities. In the absence of agreement by the parties an arbitrator (ss 36, 38) or the Minister (ss 36A, 42) can nevertheless determine that the interest should be granted once the statutory period for good faith negotiations has expired.

Claimant applications under the Native Title Act [20.460} Even in 2015 many native title claims remain unresolved that were filed under the original version of the Native Title Act 1993. In October 2015 there were 402 active applications, of which 368 are claimant applications. Of these 32 were filed prior to the 1998 amendments. The following discussion describes the Act following its most recent significant amendments in 2010 (other amendments of technical nature have been made since then).

The Act provides that once an application has been filed with the Federal Court and the respondent parties have been joined to the application, it must be referred for mediation. Contested matters and any final determinations are dealt with by the Federal Court. The applications are closely case managed by the Federal Court judge to whose docket the applications are allocated when filed. One of the amendments made in 2009 allowed for referral of applications for mediation to an appropriate person or body other than the Tribunal (s 86B). Referral to mediators such as Federal Court Registrars or an approved list of persons maintained by the Federal Court, may occur in response to particular issues arising in the course of the claim otherwise periodic directions hearings are listed before the Court to ensure that the matter progresses.

What is native title? [20.470) Section 223 defines native title as follows:

Common law rights and interests (1)

The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a)

the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)

the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)

the rights and interests are recognised by the common law of Australia.

chapter 20 Aboriginal land and heritage in NSW

[20.500]

Hunting, gathering and fishing covered (2)

Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

What the Federal Court determines [20.480] Section 225 defines the task of the Court when making a_ nati_ve tit!~ determin~tion. A determination of native title is "a determination whether or not native title exists m relation to a particular area (the determination area) of land or waters" and:

• who the persons or groups are that hold native title • the nature and extent of the native title rights and interests • the nature and extent of any other interests in relation to the area • the relationship between the native title rights and interests and any other interests • whether the native title rights and interests confer exclusive rights of possession, occupation, use and enjoyment on the holders of those rights and interests.

The nature of the native title claimed need not be frozen in the form that existed before European contact. Like all systems of law, it evolves w~th ti_me (Mabo No~ (1992) _175 CLR 1_ at 87-89). The evidence demonstrating the survival of native title must establish there 1s a normative system of law and custom observed by the native tit!~ group. While those laws and customs may develop and alter over time, the only rights and mterests over land_ and water that can be recognised under the Native Title Act 1993 are those that find th~ir ongm m pre-sovereignty law and custom (Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422).

The registration test [20.490] The 1998 amendments introduced a registra~ion test for each native_title claimant application. This requires claimant applications, once filed, be tested _accordmg ~o a set. of · · ( 190 _ 190D) If the application satisfies the Native Title Registrar hthat 1t1· contams cntena ss · · · sufficient information (according to a check list of issues, ss 62_, 190B,. 190C), t e app_ ication IS entered on the Register of Claims maintained by the Native Title _Registrar. _Reg1strat10n of ~he claim entitles the applicant to the benefit of certain procedural nghts, part1Cularly concernmg future acts.

w

Amendments made in 2007 allowed an application that has failed the registration test to be dismissed by the Court if it is not satisfied that the application will be amended so as to pass the test (nows 190F(6); George v Queensland [2008] FCA 1518).

Notification andjoinder . to t h e reg1stra · t'10n test , the Tribunal will [20.500] Once claims have been assessed accor d mg proceed to notify the public as specified in section 66. · · h e area su b'1ect t ~ cla1·m: they have a three month If a person believes they have an mterest mt d r 1 period following the issue of the public notice of the claim m whKh to file a form 5 at th e Fe e a

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Court indicating their wish to be a party to the proceedings. As long as form 5 or equivalent notice is received within the three months, they become parties to the proceedings. If the notification period has passed, people seeking to join may do so by notice of motion if they can satisfy the Court that they have an interest in the claim area that may be affected by a determination in the proceedings (s 84(5); Byron Environment Centre, Inc v The Arakwal People (1997) 78 FCR 1).

The five elements of a native title claim [20.51 OJ Five elements make up a native title claim. The elements deal with five basic questions concerning the existence of native title: who holds it, where is it, what is it, why claim it and how will decisions about it be made. When the claim is filed, these criteria must be addressed in the information that must be provided on a "Form 1" (available from the website of the Federal Court, http://www.fedcourt.gov.a u).

The registration test will be applied to these elements both as to their merits (s 190B) and procedural and other matters (s 190C). The claim will not pass the test and be included on the Register of Claims if it does not meet all the criteria to the satisfaction of the Native Title Registrar (s 190A). Where it does not pass the test and become registered, it remains valid as proceedings before the Court, but the claim group will not be able to exercise any procedural rights if any future acts are proposed within the area of the claim and the claim may be susceptible to dismissal by the Court (s 190F(6)).

Who may claim? [20.520] Where a group of Aboriginal or Torres Strait Islander people wish to claim that they hold native title, section 61 provides that a native title determination application may be filed by one or more people authorised by the native title claim group. This group consists of everybody who, according to their traditional laws and customs, holds "the common or group rights and interests comprising the particular native title claimed" (s 61(1)). The group must include the person or persons authorised on behalf of the group to make the application.

The applicant

[20.550]

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h 1. ( 66B) (Ward v Northern Territory [2002] FCA 171; Holborow v State of be t e app 1cant s h if f h "P · ,, B k dJ.i l . [2002] FCA 1428· Lawson on be a o t e ooncarie ar an Western Austra ta ' . [ 02] FCA 1517) (Paakantyi) People v Minister for Land and Water Conservation for NSW 20 . Concerns that the applicants were not authorised led to dismissal _of the Wongatha the Goldfields region of Western Australia (Harrington-Smith on behalf of the 1. · app ICat10ns over W.0 n atha People v State of w7 western A us t ralia (No 9) (2007) 238 ALR 1). One.d of thef • d uce d 1·n 2009 allows the Court to order an applicant to produce evi ence o amengd ments mtro their authorisation (s 84D).

The native title claim group

.

. clearly [20 540] The group on whose behalf the app 11cant ma k es th e ap plication must be defmed b b no~ h to ascertain whether any particular person is a membe~ (_s 61(~)). There may e ~ num er

:f di~mn:,;mys of de:c:~:::,'~: ~~~:i;;,:::,t:~u:;:,;:::~~:~ :;•;::::r:::;:::~:c~;::,

::~h:::,a :i::;:~~1;.pical ancestms m iden:fiabl~

A~go;~g~::lp~~:~er:e: ;~:a~ti::!::!~\~;:;~: from as close to the time of first contact wit non m .d from whom claim group members can show descent to the present. prov1 e, I · 1

It is not sufficient for people to demonstr~te onbly tha~ theyf hl ave a ~:~st~:: ;:;e:o:g~::t 1 b bl t show ongomg o servat10n o aws an record. They ~u~t al s~ a T:e ocomposition of the group and its description often requires

~

~~::d:~a ~: c::sub~::i:~ top:~:e~ c~;i:~t:;;/:t!::~:t ::::tr~cea~!:~t:~h~: all the group mem ers an db~dtehaeliye~:!::~et;::p 1 research (Aplin v Queensland [2010] FCA 625).

Where is the area being claimed?

.

.

.

. ly d escn.b e_d on th e form on [20.550] The area claimed must be precise b which .d .f.native d ndtitle anyclaims areas .d d B d ·es of claim areas must e I entI ie a must be filed, and a map prov, e · oun an . • 1 b identified (s 62(2)). within the boundary that are not covered b_y the. apphcat10n must a so e Land within a boundary that may not be claimed mcludes: . .

•

any areas for which there is already an approved determi~ation of nauv_e utl~

• areas where there has been a previous exclusive possession act (as defmed m ss 23B a

nd

[20.530] The person or persons in whose name the proceedings are commenced is the applicant. There can be only one applicant, but "the applicant" may comprise more than one person. The individuals comprising the applicant must be members of the native title claim group who have been authorised by all the members of the claim group to bring the application (s 61(4)). Section 251B describes how an applicant must be authorised - either by a process of decision-making that, under the traditional laws and customs of the native title claim group, must be complied with; or where there is no such process, (eg, to deal with issues arising under legislation such as the Native Title Act 1993) in accordance with a process of decision-making agreed to and adopted by the claim group (Daniel v State of Western Australia [2002] FCA 1147 at [14]). The applicant must set out the basis on which they are authorised (s 62(1)(v)) in the Form 1. It is the applicant who must deal with all matters arising in relation to the application (ss 61(1), 62(l)(iv)).

:::~e!:ro;ht:::7:t~ ;;0 i::i::::;;. ~~i~;sat7~~sd:~;n::c:::n :::t:n::us p:ysical presence (Northern Territory v Alyawarr [2005] FCAFC 135 at [193]ff). .

An applicant may be removed if they consent to being replaced, have died or become incapacitated, or have acted in excess of their authority or have lost the authority of the group to

add additional areas (s 64(1)). Should~ claim groubp wISh -~~ ass:te t:::t7;:i;:~mbin! the two additional areas, a new claim must be filed. It may e poss1 e su s q claims (s 64(2)).

23E) which has extinguished native title - for example, a grant of freehold.

.

. 4 7 - 4 7B allow prior extinguishment to be disregarded where the land is However, sect10ns C 1 d th t one or more

xclusive ossession may not be claimed over land where there have been prev10us E . ppossess10n . acts (as d ef.me d m . s 23F) - for example ' non-exclusive agncultural or non-exclusive pastoral leases.

d d

A claim may be amended to reduce the ar~a at any ti~e (s 64( lA)) but_ it ca~ot i~~ea;:s eov:~

953

954

The Environmental Law Handbook

[20.560)

Claims over offshore waters (20.560] In Yarmirr v Northern Territory [2001] ALMD 3 the High Court held that, while native title may survive in offshore waters, exclusive possession cannot be claimed. Gumana v Northern Territory (2007) 158 FCR 349 followed Yarmirr in finding that exclusive possession native title cannot be claimed below the high water mark. In each matter, the Court held that it could not recognise exclusive native title rights because common law public rights exist in relation to water, such as a right to innocent passage, to navigation and to fish. However, non-exclusive native title rights, for example to fish (see [19.300]), travel across, visit and protect areas of cultural significance can co-exist in waters with public rights of navigation and fishing. In each instance, determinations were made that non-exclusive native title existed in the waters claimed. In Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24; [2008] HCA 29, the High Court held that the grant of land made to the low water mark under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (see [20.40]) had conferred exclusive possession of the inter-tidal zone on the traditional owners of Blue Mud Bay. The exclusive possession arose from the terms of the grant under the Aboriginal Land Rights Act 1983, not from the native title of these traditional owners which had been recognised in Gumana.

chapter 20 Aboriginal land and heritage in NSW

[20.600)

use and enjoyment of the land by other Aboriginal people who recognise the relevant traditional law (Northern Territory v Alyawarr (2005) 220 ALR 431).

Why is the claim being made? (20.580] If the claim is a response to a section 29 notice relating to a futu~e act, ~orm 1 must

identify that notice. The time limits referred to on [20.430] (the right to negotl~te) will ~om_mence immediately and the Native Title Registrar will use their best endeavours to fm1sh cons1dermg the claim within four months from the issue of the notice (s 190A(2)). Claims may be filed for only part of or for the entire area in which a group asserts native title rights. Claims may be filed as a consequence of negotiations with government about land management or m relat'.on to intra-indigenous issues. The reasons why the claim is filed will have a bearing on how qmckly It can progress through the native title system and the resources that can be made available to help its progress.

Decision-making by the claim group (20.590] Form 1 must show how the applicant is authorised to make the application and to deal

What rights and interests ore being claimed? (20.570] Information provided on the Form 1 must set out a description of the native title rights and interests claimed and the activities that are enjoyed as a consequence of those rights and interests. The factual basis for asserting that the native title rights and interests exist must be included; in particular, it must be shown that (s 62(2) ):

• •

•

the native title claim group has an association with the area claimed and their predecessors were also associated with it

with all matters arising in the course of the application (s 62A). The claim group must explam the decision-making method by which they authorised the applicant to make the claim (see above). This method will also guide how the group makes decisions about the claim and how the applicant's authority is maintained in dealing with things that arise through the claim process (s 251B; Daniel v Western Australia (2002) 194 ALR 278; [2002] FCA 1147).

Mediation

traditional laws and customs exist giving rise to the native title claimed

(20.600] Once parties have been joined, unless the Court orders otherwise, the ap_plication

the claim group has continued to hold the native title in accordance with those traditional laws and customs.

should be referred for mediation (s 86B). The purpose of mediation (defined ins 86A) 1s to help the parties reach agreement on some or all of the following matters: whether native title exists or existed in relation to the land or waters covered by the

The claim must explain the current activities (as carried out by members of the claim group on the lands and waters claimed) that demonstrate the survival of native title. These activities must demonstrate how the rights and interests claimed continue to be enjoyed and exercised in the present. Recognition of the claim group's right to continued enjoyment of those activities and their future protection is at the heart of why a claim may be brought. When this aspect of a claim is considered by the Native Title Registrar, the only rights and interests that will be entered on the register of claims, or that can be the subject of negotiation, are the rights and interests that have been shown to have a factual basis in the material filed with Form 1 (s 190B(5)). The High Court has found that certain aspects of the traditional law and custom observed by a claim group are not rights and interests that are cognisable under the Native Title Act 1993 - for example, protection of cultural and spiritual knowledge or a right to trade. The High Court has held that such aspects of traditional law are not rights in land and are incorporeal (Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 at [57]-[61], [467]) . Other aspects of traditional law and custom, deemed to be of an intramural nature (that is rights between people as opposed to rights to land), cannot be recognised as giving rise to rights in land, such as regulation of claim group membership or the right to make decisions about access to and

• •

application if native title exists or existed: -

who holds or held the native title the nature and extent of the native title rights and interests and how they are exercised the nature and extent of any other interests in relation to the area the relationship between the native title rights and any other interests to the extent that the area is not covered by a non exclusive agricultural or pastoral lease, whether the native title rights and interests confer exclusive possession, occupation, use and enjoyment of the land or waters on their holders.

Mediation and agreements reached at mediation may involve matters other than native title (s 86F). Whilst mediation and negotiation is the most frequent method of claims resolution, it is now more common for claims to remain in case management by the Court without formal referral to mediation while the native title applicant prepares material designed to satisfy, particularly the

955

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(20.610)

State party (which is always the First Respondent to a native title claim), that the members of the claim group are connected to their country through on going observation of traditional laws and customs. This material - usually comprising witness statements from various claim group members and an expert anthropological report is referred to as a "connection report". The Court may make directions regarding provision of an applicant's connection report which is provided on a confidential and without prejudice basis as the precursor to negotiation of a consent determination or other resolution of the claim. If on the basis of the connection report/material the State accepts that the claim group has established they are the right group for the country claimed and there are sufficient indicia of ongoing observation of traditional laws and customs then other respondents usually adopt the State's position.

If the parties reach agreement in relation to the application, the Federal Court may grant orders consistent with the terms of the agreement if it is satisfied that it is appropriate to do so (s 8~)- It may also make a determination for part of the area if there has been agreement in relat10n to part of the claimed area (s 87A) . A determination may be made giving effect to agreements that involve matters other than native title (s 87A(5)). The Court has often praised parties who have settled native title matters by consent (North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595; Mark Anderson on behalf of the Spinifex People v State of Western Australia [2000] FCA 1717 at [8] per Black CJ). If there is no prospect of agreement or if some issues remain unresolved by agreement, the Federal Court will hold a hearing on the contested issues and make a determination (s 86C). The de~lared pu~pose of the amendments made in 2009 and since was to achieve quicker, mo~e fl~x1ble ~egot1ated settlements of native title claims. The improved rate of disposition of native title claims 1s predominantly the product of experience accumulated by the institutions practitioners and claimants in making the Act work. '

chapter 20 Aboriginal land and heritage in NSW

(20.640)

Non-claimant applications (20.620] Those with a non-native title interest in land who want to know if it may be subject to

native title rights and interests may file an application under section 61. Non-claimant applications are filed on Form 2. Once a non-claimant application has been filed, the Native Title Registrar must provide notice in the prescribed way that the application has been received (s 66). Others may then join the application as parties within the three-month period following issue of the notice (s 84). If the parties agree it is useful, the application will be referred to mediation (s 86B). The object of the non-claimant application is generally to allow for a valid future act to be done. Non-claimant applications are typically filed by persons or organisations such as relevant State Ministers, local government bodies and individuals who hold a non-extinguishing interest such as a licence or permissive occupancy in land where a change of interest or use is proposed, or who are seeking an interest in land where native title may not have been extinguished (eg, a pastoral interest holder seeking to convert a non-extinguishing pastoral interest to freeh~ld! or a neighbouring property owner seeking to acquire an interest over Crown land). Where this 1s not opposed, or there is no claimant application in response, mediation may not be necessary. Non-claimant applications may also be relied upon where the interest holder seeks to validly acquire an interest over the land that would extinguish native title, or to change land use where a different kind of interest to that already held is required. For example, a local government body may wish to convert land managed as a reserve to land for use as a caravan park or sporting facility. If, during the notification period, there is a claimant application in response to the non-claimant application, both sets of proceedings will be dealt with together (s 67).

Validating a future act (20.630] If no claimant application has been made within three months after notice, the

Native title claims: statistics [20.610] Over 2,100 applications of all types have been filed since the Native Title Act 1993 was passed. In August 2015 there were 396 active applications, 363 being native title claimant applications. Of the 1,416 that have concluded, 253 determinations have been made - the rest have been rejected, withdrawn, struck out or dismissed.

non-claimant applicant may validly proceed to acquire the new interest sought in the land (s 24FA) without any further determination being made with respect to native title. Once a v~lid future act has been done, the non-claimant application is usually discontinued. Because the obiect of the non-claimant application is generally to allow for a valid future act to be done, it is usually unnecessary to proceed to secure a determination that native title has been extinguished. Gaining a valid interest to carry out a particular activity or land use is the object of the application.

Of the determinations, only 24 have been litigated - in 18 of the litigated applications the Court found native title exists. Ninety nine (99) determinations have been made that native title exists in all or part of the determination area. Eighty eight (88) determinations, both claimant and non-claimant, were made by consent. The claimant applications made by consent were mediated and settled by agreement between the parties, and almost all of the 31 non-claimant applications were unopposed.

Should a native title claim group subsequently establish that they held native title rights and interests in the area affected, they are entitled to seek compensation for the impairment of their native title rights and interests from the State or the Commonwealth, whichever created the relevant interest. As the Native Title Act 1993 processes will have been followed, the interest itself will have been validly created, so the newly-created interest cannot be invalid because of the

Only three compensation applications have been determined. Two were unsuccessful following litigation Uango v Northern Territory (2007) 159 FCR 531; Lawson v Minister Assisting the Minister for Natural Resources (Lands) (2004) 139 FCR 548). One was successful_ De R~se v_State of South Australia [2013] FCA 988 where compensation for the extinguishment of native title was resolved by consent of the parties (see [20.660]).

An example of a non-claimant application

impairment or extinguishment of native title (s 11).

(20.640] A non-claimant application might involve a party such as a local governm_ent _body

managing land over which no prior extinguishing interests have been granted. Should it wish to

957

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[20.650)

construct bush fire fighting facilities or a sportsground and amenities, it could lodge a non-claimant application in relation to that land. If no claim to native title is filed during the notification period, the local government body can proceed to change the use of the land and construct facilities over which others may have uses, including exclusive possession (such as secure areas for fire fighting equipment). Those interests will have been validly created. Should it be shown subsequently that the creation of those interests extinguished native title, the native title holders will have rights to compensation for extinguishment of their native title even if the relevant native title holders did not exercise a right to negotiate in relation to the creation of the new interest. However, the interest holders' possession and use of the land will not be subject to challenge on grounds of invalidity in relation to native title. The right to compensation will only arise where the native title holders are able to demonstrate that until the interest was created their native title rights and interests over the land concerned survived. . Failure to lodge a claim within the three-month notification period does not necessarily mdICate that there are no traditional owners. The people who could make decisions about claim lodgment might have had to be elsewhere for any number of reasons, such as "sorry business" (funeral and mourning rites) or cultural and ceremonial duties. However, the creation of the interest necessary to support the new use will have been validly done and compensation will be payable by the State or Commonwealth (depending on the kind of interest created).

[20.660)

chapter 20 Aboriginal land and heritage in NSW

of exclusive possession extinguish native title. However section 4 7 A provides that where land is vested in a person (including a corporation) for the benefit of Aboriginal or Torres Strait Islander peoples, prior extinguishment must be disregarded. Native title claims may still be made over land vested in an Aboriginal organisation. However, claims under the land rights legislation cannot be made over land where native title is claimed or determined to exist (Aboriginal Land Rights Act 1983, s 36(1)(d), (e)). Traditional owners do not always agree that people with traditional rights to speak for an area of land have been appropriately recognised when lands, over which they claim connection and traditional authority, are vested in an indigenous organisation such as a local Aboriginal land council. To some traditional owners, such a vesting may mean further alienation of their land. Should a native title claimant application that has proceeded to full trial be unsuccessful in establishing that the claimants hold native title rights, the Court may, in its discretion, determine that there is no native title, Wyman on behalf of the Bidjara People v State of Queensland [2015] FCAFC 108 at [456]. Otherwise the Court may dismiss the application leaving the possibility that another claim, differently or perhaps more competently composed, may be brought, Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) (2007) 238 ALR 1.

Seeking on order that native title hos been extinguished

Compensation applications

[20.650] Some non-claimant applications do seek orders that native title has been extinguished (Kennedy v State of Queensland [2002] FCA 747; see also Kanak v Minister for Land & Water Conservation [2000] FCA 1105). For example Aboriginal land councils in NSW are prevented from dealing in land vested in them under the Aboriginal Land Rights Act unless they have secured a determination through a non-claimant application that native title has been extinguished (Aboriginal Land Rights Act 1983 (NSW), s 42; see (20.120]).

[20.660] Persons authorised by the native title claim group may seek a determination of compensation where their native title has been extinguished (s 61). These compensation applications are dealt with under the procedures described on (20.460] for claimant applications under section 61. Applicants must be able to demonstrate that they are authorised in the same way as they must for applications for determination of native title.

Although the Native Title Act 1993 specifically validates all interests held under the NSW Aboriginal Land Rights Act 1983, section 47A allows for prior extinguishment to be disregarded where an interest in land is held by Aboriginal or Torres Strait Islander people under legislation that makes provision for the grant or vesting of land or interests in land to them. This means that there is no presumption of extinguishment in relation to the freehold and other interests vested in land councils through grants under the Aboriginal Land Rights Act 1983 (NSW). Native title cannot be extinguished except in accordance with the Native Title Act 1993 section 11. A land council seeking to pass or create an interest in its land for a third party, that is free from native title, must file a non-claimant application with the Federal Court. Only a non-claimant application can secure a determination that native title has been extinguished over the land in which the land council holds an interest. A determination that native title has been extinguished over particular land vested in the land council, will allow the land council to validly deal with that interest, for example, by selling it (Darkinjung Local Aboriginal Land Council (2001] FCA 1124; Worimi (aka Gary Dates) v Worimi Local Aboriginal Land Council [2010] FCAFC 3). Wi~hout a determination from the Federal Court resolving its non-claimant application by extmguishing native title, the land council cannot pass a title to a purchaser or other interest holder "free" from native title. This places land councils in a unique position. On the one hand they hold land as freehold granted to them under the Aboriginal Land Rights Act 1983. Elsewhere freehold and other forms

In 2005, Sackville J concluded the hearing of a compensation application in relation to the Yulara Resort in the Northern Territory and the extinguishment of the native title rights and interests of the Yankunytatjatjara and Pitjantjatjara people, and his decision was upheld by the full Federal Court Uango v Northern Territory (2007) 159 FCR 531; (2007] FCAFC 101). At first instance in Jango v Northern Territory (2006) 152 FCR 150; [2006] FCA 318, Sackville J dismissed the compensation application on the basis that the compensation claim group had not shown, on the case pleaded and evidence presented, that at the relevant time, their native title rights and interest subsisted over the area covered by their compensation claim. He found that the evidence did not prove the case for native title as formulated in the application. Dismissal means the traditional owners of the land including the town of Yulara may be able to re-present their case in the future with the benefit of more and differently pleaded evidence. In De Rose v State of South Australia [2013] FCA 988 compensation for the extinguishment of native title was resolved by consent of the parties following the successful outcome of litigation concerning the survival of the native title rights of the claimants over other parts of their traditional country in De Rose v State of South Australia (No 2) (2005) 145 FCR 290.

959

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[20.670)

Case study: Native title over Lake Victoria [20.670] In Lawson v Minister Assisting the Minister for Natural Resources (Lands) (2004) 139 FCR 548; [2004] FCAFC 308, the applicant claimed that native title survived over Lake Victoria in south western NSW (Barkandji country). In the alternative, the applicant claimed that the Barkandji people were compensable for the creation of Lake Victoria as an act that impaired or extinguished their native title. Lake Victoria is in part an artificial lake created as part of the scheme to provide water to south eastern South Australia. The Court dismissed both the native title claim and the claim to compensation, partly because the legislation relevant to the lake had been passed in the early 20th century, long before the Racial Discrimination Act 1975 had been passed. Extinguishment of native title prior to the enactment of the Racial Discrimination Act 1975 in 1975 is not compensable even though the extinguishment was discriminatory.

Revocation or variation of a determination [20.680] The final type of application that may be filed under the Native Title Act 1993 is an application to revoke or vary a determination (s 61 ). Application for a revised determination under section 13(1) can only come from:

• • •

a registered native title body corporate the Commonwealth, State or Territory Minister, or the Native Title Registrar.

To date there has been only one variation to a determination made, and this was merely to correct an error in the wording of the determination. There have been three unsuccessful applications for revision or revocation (see In re Yoren [2004] FCA 916 and the reasons for judgment pending in the unsuccessful application by Wintawari Guruma Aboriginal Corporation (RNTBC)).

Funding for native title proceedings [20.690] The Native Title Act 199 3 has created native title representative bodies to participate in the native title process. Native title representative bodies (often called "rep" bodies or NTRBs) must be either recognised by the Commonwealth Minister or charged by the Minister to carry out the functions of a native title representative body (ss 203A - 203AI). These bodies provide funding to indigenous people seeking recognition of their native title. In an adaptation of this structure many "rep bodies" are now native title service providers ("NTSPs"). NTSPs are funded to do the same work as NTRBs but they have not gone through the same recognition process. In an area where no NTRB is appointed, an NTSP may be funded by Prime Minister and Cabinet to carry out a range of or all the same functions as an NTRB. The funding period for NTSPs is determined by negotiation rather than the recognition process. The Commonwealth Attorney General provides funding to respondent parties (s 213A). Commonwealth funded parties include, for example, members of State-wide pastoral and

[20.710)

chapter 20 Aboriginal land and heritage in NSW

961

-----------commercial fishers associations and other sporting or recreational interest groups. Usually State governments are self funded as the first respondent to a claim. Other parties such as water licensees may apply for Commonwealth funding as respondents even where the capacity of the claim to affect their interest is highly questionable.

Other functions of representative bodies [20.700] A representative body must give priority to the protection of native title (s 203B(4) ). Its functions include:

• •

facilitating and assisting indigenous peoples in relation to native title claims where requested to do so (ss 203B(l), 203BB) certifying applications for native title and indigenous land use agreements - that is, forming an opinion about the proper authorisation of the claim or indigenous land use agreements (s 203BE) on the basis that the claim group is appropriately defined and inclusive of all people falling within the description and that it has properly authorised the applicant in accordance with either traditional law and custom or a process agreed and adopted

• • •

notification (s 203BG)

•

other functions set out in section 203BJ, including:

dispute resolution (s 203BF) agreement making as a party to indigenous land use agreements (s 203BH)

• internal review, particularly in relation to funding decisions (s 203B1)

- providing information - identification of native title holders - communication and cooperation with other representative bodies. Native title representative bodies have been held to have an interest in their own right in native title proceedings through their statutory functions, and so may often be both a party to a native title claimant application and the representative of the applicant (Woodridge v Minister for Land & Water Conservation (NSW) (2002) 122 FCR 190; [2002] FCA 1109).

Delay and complexity [20.710] One of the causes for some of the dissatisfaction with native title processes is the length of time it takes to fully resolve claims. Some of the transferal of functions between the Court and the Tribunal carried out in the 1998, 2007 and 2009 amendments were intended to improve the disposition rate for native title matters. For native title applicants it can be difficult to see how the allocation of functions between the Court and the Tribunal can help to expedite their claims when one of the primary reasons why it can be difficult to progress a claim is the shortage of resources - human and financial. As the statistics for disposition of the matters show (see [20.610]) most of the applications are resolved outside the processes of the Court. A valid concern of applicant groups is that unless they have a claim on foot it is hard to attract resources to develop the material that they require to demonstrate their native title survives. It is also their experience that priority is given to solving

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[20.720)

future acts and reaching agreement about the nature of other interests in their claim area. The larger question of recognising their native title can appear to come after that. Native title has become an increasingly complex area for participants. The development of a jurisprudence particular to native title has made the area highly technical. The legislation is meant to create procedures by which the co-existence of traditional indigenous law and custom with non-indigenous rights and interests can be recognised. Familiarity with the processes and concepts is gradually developing, but as more of the Act is amended and sometimes contested there is increasing complexity. One of the wonders of the native title process is that it leads to articulation of formerly suppressed or hidden stories of the survival of Aboriginal and Torres Strait Islanders' laws and customs. Those laws and customs can now be recognised through the narratives of the lives of indigenous peoples, creating a significant contribution to the understanding of local and national history. The fact that mediation and negotiation can lead to agreement about the co-existence of indigenous and non-indigenous rights and interests enhances the depth of understanding about a community and enriches the belonging and connection of all parties.

Aboriginal cultural heritage protection in NSW [20.720] There is no legislation concerned exclusively with the protection of Aboriginal cultural heritage in NSW. While the LALCs have considerable responsibility in this area, as outlined above, the primary way in which Aboriginal cultural heritage is protected is through provisions in the National Parks and Wildlife Act 1974 (NSW) (NPW Act). The Office of Environment and Heritage is responsible for administering this Act. Aboriginal people have been critical of the continued inclusion of the protection of Aboriginal cultural heritage in the Act as maintaining a "bones and stones" thinking with respect to their culture. The NSW Government announced in early 2010 that a two year Working Group would be established to consider independent Aboriginal heritage legislation for NSW. The NSW Opposition also announced their support for separate heritage legislation. However the amendments introduced in 2010 were to the NPW Act ' with the intention of bringing its compliance and enforcement provisions more into hne with those in other NSW environmental protection and heritage legislation, and with those in some other states. Offences and penalties for harming or desecrating Aboriginal objects and declared Aboriginal Places, and some new Aboriginal cultural heritage offences and penalties were introduced. '

The Heritage Act 1977 (NSW) specifically excludes Aboriginal objects from its definition of relics (s 4) and there have been difficulties invoking it in aid of protection of Aboriginal cultural heritage that is not protected by the provisions in the NPW Act (see below, [20.830]). This difficulty was exemplified by the battle to preserve Australian Hall, a building in Elizabeth Street Sydney which in 193 8 was the site of the first national Aboriginal civil rights gathering, known as the "Day of Mourning" (see http://www.dictionaryofsydney.org/entry/australian_hall). The Australian Hall as a non-Aboriginal structure of significance to Aboriginal people appeared beyond the scope of the Heritage Act 1977. A long campaign for its protection was waged. Australian Hall became the first building in Australia to be recognised as an Aboriginal heritage site eventually securing protection under the Heritage Act 1977.

[20.740)

chapter 20 Aboriginal land and heritage in NSW

Protection of Aboriginal objects and places [20.7:J0] The NPW Act makes the Director-General of the Environment Department responsible for the proper care, preservation and protection of "Aboriginal objects " and "Aboriginal places" (s 85). An "Aboriginal place" can be declared where, in the opinion of the Environment Minister, a place is or was of special significance with respect to Aboriginal culture (s 84 ). Aboriginal objects are defined in section 5(1) to be "any deposit, object or material evidence (not being a handicraft made for sale) relating to the Aboriginal habitation of the area that comprises New South Wales, being habitation before or concurrent with (or both) the occupation of that area by persons of non-Aboriginal extraction, and includes Aboriginal remains".

The NPW Act was substantially amended in 2010. From 1 October 2010 new heritage laws and regulations, including new penalties for the harm or destruction of Aboriginal heritage have effect. Prohibitions against harm to Aboriginal objects apply to objects on both public and private land. "Harm" includes conduct by a person that destroys, defaces, damages or moves an Aboriginal object or place (s 5(1)). However, the Director-General can give permission to developers, government agencies and others to disturb, damage or destroy Aboriginal heritage by issuing an Aboriginal heritage impact permit (ss 87(1), 90, 90C; Kennedy v National Parks & Wildlife Service [2002] NSWLEC 67), after taking into account not only the significance of the objects or places but also social and economic consequences (s 90K). Before applying for a permit, the applicant must carry out an Aboriginal community consultation exercise with native title holders or other Aboriginal people with relevant knowledge, and submit a cultural heritage assessment report with the application (National Parks and Wildlife Regulation 2009, ell 80D, 80C). Where development consent is also required under Part 4 of the Environmental Planning and Assessment Act 1979, and an Aboriginal object is already known to exist, the application is to be dealt with as integrated development (Environmental Planning and Assessment Act 1979, s 91(2): see [5.370]). An important effect of these provisions is that native title holders, particularly where they have the benefit of a determination of the existence of their native title rights and interests, are properly parties for consultation concerning cultural heritage matters and the grant of permits. How parties' interests co-exist in an area where cultural heritage protection measures are to take effect could be the subject of an Indigenous Land Use Agreement with native title holders under the Native Title Act 1993 (see [20.390]). Aboriginal heritage impact permits can apply to both initial survey work and the activity itself. They can be issued in relation to specified parcels of land and deal with multistage developments. There are provisions for the variation (s 90D), transfer (s 90B), suspension and revocation of permits (s 90G). If an application is refused an applicant can appeal to the Land and Environment Court within 21 days of receiving notice of the decision (s 90L), but objectors can only resort to judicial review proceedings (see [2.360]).

Offences [20.740] People who unlawfully destroy or damage Aboriginal objects or places without a

permit can be prosecuted. The Director-General can also issue:

• stop work orders where an imminent action is likely to significantly affect an Aboriginal object or place (s 91AA; see [12.770]-[12.810])

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interim protection orders (s 91A; see [12.680] and remediation directions where an Aboriginal object or place has been harmed as a result of the commission of an offence (s 91L; see [12.690]).

Before the 2010 amendments, a person could only be prosecuted for harming an Aboriginal object or place if the harm was caused "knowingly". This offence is now punishable with up to two year' s imprisonment and 5,000 penalty units when committed by an individual, and 10,000 penalty units when committed by a company. New offences have now been added to cover situations where someone damages an Aboriginal object or place and they ought to have realised what it was even though, at the time of the damage, they did not (ss 86(2), (4), (5), (8): see the discussion of strict liability in [2.620]). Where an Aboriginal object is involved, this offence is punishable up to 1,000 penalty units when committed by an individual and 2,000 penalty units in the case of a company. There are exemptions covering, for example, bush fire emergencies (s 87A) and traditional non-commercial cultural activities carried out by Aboriginal people (s 87B).

Finding Aboriginal objects (20.750] Those who find Aboriginal objects must notify the Director-General within a reasonable time (s 89A). If those who have damaged an Aboriginal object but claim that they did not even know it was there want to escape conviction, they have to prove either that they were carrying out a low impact activity (s 87(4)) or that they had exercised due diligence to determine whether their actions would harm an Aboriginal object and reasonably determined that none would be harmed (s 87(2); see [2.640]). Low impact activities are listed in the National Parks and Wildlife Regulation 2009 (cl 80B). They include specified farming, land management, maintenance, survey and environmental rehabilitation works, ordinarily on land that has already been disturbed.

Compliance with any one of a number of Codes of Practice will amount to due diligence (National Parks and Wildlife Regulation 2009, reg 80A):

• •

• • • •

the Due Diligence Code of Practice for the Protection of Aboriginal Objects in NSW (http://www.environment.nsw.gov.au/resources/cultureheritage/ddcop/l0798ddcop.pdf) the Plantations and Reafforestation Code (the Appendix to the Plantations and Reafforestation (Code) Regulation 2001) (http://www.legislation.nsw.gov.a u/maintop/view/inforce/subordleg +97 4+ 2001 +cd +0+ N) the Private Native Forestry Code of Practice (http://www.epa.nsw.gov.au/pnf/CodeofPractice.htm) the NSW Minerals Industry Due Diligence Code of Practice for the Protection of Aboriginal Objects (http://www.environment.nsw.gov.au/resources/cultureheritage/ddcop/ddcop-minco.pdf) the Aboriginal Objects Due Diligence Code for Plantation Officers Administering the Plantations and Reafforestation (Code) Regulation 2001 (http://www.environment.nsw.gov.au/resources/cultureheritage/ddcop/ddcop-DII.pdf) the Operational Guidelines for Aboriginal Cultural Heritage Management (http://www.environment.nsw.gov.au/resources/cultureheritage/ddcop/ddcop-ForestsNSW.pdf).

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The Due Diligence Code of Practice for the Protection of Aboriginal Objects in NSW (the Code), explains and provides practical steps which individuals and organisations who own, manage or use land need to take in order to:

• • •

identify whether or not Aboriginal objects are, or are likely to be, present in an area determine whether or not their activities are likely to harm Aboriginal objects determine whether an Aboriginal heritage impact permit is required.

The Code is designed to provide certainty to land managers and developers about appropriate measures they must take to provide a defence against prosecution; encourage a precautionary approach in land users and developers, and ensure more effective conservation of Aboriginal cultural heritage. The introduction of the due diligence measures obliges people whose actions may affect Aboriginal cultural heritage to take precautions to consider if Aboriginal objects may be present and avoid harm. If harm cannot be avoided they must apply for an Aboriginal heritage impact permit. The Director-General must also establish and keep a database to be known as the Aboriginal Heritage Information Management System (AHIMS) (s 90Q). The AHIMS is to contain information and records regarding Aboriginal objects and places whose existence and location have been reported to the Director-General. The AHIMS will include copies of any reports that have been provided to the Director-General regarding Aboriginal objects, places and features of significance to Aboriginal people. The purposes of the AHIMS are not restricted to only maintaining a record of findings, but also to assist people exercising due diligence to determine whether an act or omission would harm an Aboriginal object and to assist public and local authorities in the exercise of their land management, planning and other functions.

Co-management of N ational Parks under Part 4A Recognition of Aboriginal ownership of protected areas (20. 760] A significant innovation in relation to the management of Crown lands in NSW was

the enactment of the National Parks and Wildlife Amendment (Aboriginal Ownership) Act 1996, which amended the National Parks and Wildlife Act 1974 by introducing Part 4A, "Aboriginal Land". As a result of these amendments, the NPW Act provides that land that has already been dedicated or reserved under that Act as a protected area, such as a national park can be transferred to Aboriginal people in cases where it has Aboriginal cultural significance (s 71C(2)). Land is of cultural significance to Aboriginal people if "the land is significant in terms of the traditions, observances, customs, beliefs or history of Aboriginal persons" (s 71D). Aboriginal land councils are to hold the land in trust for traditional owners. Schedule 14 of the Act currently identifies seven national parks, nature reserves and historic sites that have already been designated as of Aboriginal cultural significance. Part 4A provides the means by which this initial list may be added to. Many different kinds of arrangements to provide for Aboriginal participation in and joint management of national parks and reserve areas have been entered into in relation to areas not included on Schedule 14 (see http:// www.environment.nsw.gov.au/jointmanagement/jointmanagedparks.htm). There are also negotiations for more Part 4A arrangements in the context of resolving aspects of some NSW native title claims.

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In September 1998, the Mootwingee National Park (renamed the Mutawintji National Park) became the first national park handed back to an area's traditional owners under Part 4A. Although ownership is transferred, there is a mandatory leaseback of the land to the Environment Minister for a term of 30 years (s 71AD(l)(b)). The Minister is obliged to pay compensation by way of rental to the Aboriginal owners for the loss of full enjoyment of their land through the leasing arrangement (s 71AE). If there is a dispute between the parties about the amount of rent, the matter must be referred to mediation (s 71AE(5)). The lease is renewable after negotiation between the parties (s 71AI), but there is a holding-over provision that means the Minister can allow the lease to continue even after it has expired (s 71AL). The National Parks and Wildlife Act 1974 protects any native title that may be determined to exist in the areas (ss 71O(2)(b)(i), 71P(2)(a)). Land claims [20.770] The Aboriginal Land Rights Act 1983 provides that lands are not "claimable" if the

Minister for Aboriginal Affairs is satisfied that they are needed for the public purpose of nature conservation (s 36A). However, if an Aboriginal Land Council negotiates a lease of the lands in accordance with the provisions of Part 4A, and agrees to their simultaneous reservation under the National Parks and Wildlife Act 1974, the Minister may grant the claim (s 36A(2)).

Port 4A Leases [20.780] Section 71AD sets out the matters to be covered in a lease between the Aboriginal land council and the Environment Minister. The lease must recognise that Aboriginal owners and other Aboriginal people who have their consent, are entitled to use the lands for hunting or fishing for, or the gathering of, traditional foods for domestic purposes and for ceremonial and cultural purposes to the extent that this is in accordance with the tradition of the Aboriginal owners (s 71AD(l)(i)). However, this is subject to the requirement that this does not breach provisions in the legislation, regulations and the management plan, including those designed to protect animals, trees, plants, flowers and vegetation (s 71AD(l)(j)).

Arrangements made under leases of this kind include licensing individuals to "hunt rabbits, goats, kangaroos and emus ... for domestic purposes and for ceremonial and cultural purposes in accordance with the tradition of the Aboriginal owners" (Schedule 3 of the Mutawintji lease).

(20.820]

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chapte1· 20 Aboriginal land and heritage in NSW

surrounding landholders. The board is subject to the control and direction of the Minister.

The board must prepare a draft plan of management, which must be made available for public comment (s 72), before being finalised by the Minister (s 73B) . Traditional owners, and other authorised Aboriginal people, may enter and use the land, including animals, for domestic, ceremonial and cultural purposes as long as the activities are consistent with the plan of management (ss 45(6)(a), (b); 56(7); 57(7)). The Board can refuse to approve the carrying out of these activities (s 71AO(2)) . Plans of management may also restrict public access to places of cultural and spiritual significance (s 71AD(l)(m)). The 2010 amendments to the NPW Act include measures designed to improve the efficiency and effectiveness of Part 4A Boards of Management and their management of Part 4A lands.

Cultural heritage advice [20.800] An Aboriginal Cultural Heritage Advisory Committee advises the Minister and the Director-General of the Environment Department on any matter relating to the identification, assessment and management of Aboriginal cultural heritage, including providing strategic advice on plans of management and the Aboriginal Heritage Impact Permit process (s 28). The Committee must include:

• •

a member nominated by the NSW Aboriginal Land Council ten other members drawn from: - nominees of Aboriginal elders groups - registered native title claimants - Aboriginal owners listed on the register kept under the Aboriginal Land Rights Act 1983, Schedule 9(1).

The Committee may advise the Minister or Director-General on matters to do with Aboriginal cultural heritage, whether or not a matter has been referred to it.

Other legislation concerning protection of Aboriginal objects and places Local Government Act

Management [20. 790] A board of management established under the Act has the care, control and management of the land (ss 71AN -AQ). The board has between 11 and 13 members. A majority must be Aboriginal owners of the lands. The board must also have a representative from:

• the NSW Aboriginal Land Council • the National Parks and Wildlife Service • local government • local conservation interests

[20.810] The Local Government Act 1993 (NSW) contains protocols for dealing with the cultural significance of land to Aboriginal people. Local Aboriginal people and communities must be consulted about the level of public disclosure of and access to places and items of significance to Aboriginal people (ss 36, 36DA).

Environmental Planning and Assessment Act [20.820] Apart from the provisions of the NPW Act relating to the protection of Aboriginal objects and places (see [20. 730]), where an activity is proposed that may cause injury or

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desecration to areas of Aboriginal significance and development consent is required under the Environmental Planning and Assessment Act 1979 (NSW), protective conditions can be incorporated into the consent. Section 79C of that Act lists impacts which must be considered before development consent is granted (see [5.1180]). They include the likely impacts of the development on both the natural and built environments, social and economic impacts in the locality and the public interest. These are broad enough to include Aboriginal heritage.

In addition, Aboriginal heritage should be a relevant value when environmental planning instruments, such as local environmental plans (see Chapter 3 ), are made. Finally, State government agencies act as the determining authority on the environmental impacts of proposed activities falling to be assessed under Part 5 of the Environmental Planning and Assessment Act 1979 and must consider a variety of community and cultural factors, including Aboriginal heritage, in their decisions (see [6.160]).

Heritage Act [20.830] The definition of "relic" in the Heritage Act 1977 (NSW) excludes any deposit, object or material evidence that belongs to Aboriginal settlement (s 4). (See Chapter 17 for a discussion of the protective provisions of the Act.) However sites of post colonial significance to Aboriginal people can be brought within the protective measures under this Act when they would not otherwise be covered by the NPW Act. See, for example, the discussion of Australian Hall at [20.720) .

Aboriginal places or objects that are recognised as having high cultural value can now be listed on the State Heritage Register. The State Heritage Register provides an extra level of protection beyond that provided by the AHIMS register (see above, [20.760]) as it protects against any damage or destruction to listed sites registered. There are substantial penalties for offences under the Heritage Act 1977. There is an Aboriginal Heritage Advisory Panel to provide advice on managing and conserving heritage places that are important to Aboriginal communities. It is drawn from Aboriginal community members equipped to advise the Heritage Council on Aboriginal issues from a regional and community perspective.

Commonwealth legislation [20.840] The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) was enacted specifically for the protection of Aboriginal and Torres Strait Islander heritage. Under this Act, indigenous Australians can apply, either orally or in writing, to the Commonwealth Minister (currently the Minister for the Environment) to make a protective declaration (s 11) where certain areas are under threat of injury or desecration (ss 9, 10). "Desecration" is defined very broadly (s 3(2)) and includes:

• •

[20.870]

chapter 20 Aboriginal land and heritage in NSW

Before making a declaration affecting land or objects in NSW, however, the Commonwealth must consult the State government to determine whether there is effective protection under State law (ss 13(2), (5); 7(1), (3)). See: Guide to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (2014) for more details (http://www.environment.gov.au/resource/guideaboriginal-and-torres-strait-islander-heritage-protection-act-1984-cth).

Protective declarations in relation to land [20.850] Protective declarations of any duration can be made if the Minister is satisfied that an area is a significant Aboriginal area and it is under threat of injury or desecration (s 10(1)), after considering a report dealing with such things as (s 10(4)):

• the significance of the area • the nature and extent of the threat • the restrictions to be imposed • the effect a declaration will have on the financial interests of others.

Prior to submission of the report to the Minister, public submissions must be invited and taken into account in the final report (s 10(3)(6)). The Minister may nominate a person to resolve through consultation any matter to which the application relates (s 13(3)). In Western Australia v Minister for Aboriginal and Torres Strait Islander Affairs (1995) 37 ALD 633, Justice Carr held that the Minister must afford procedural fairness to the parties (see [2.370]) before making a declaration which is appropriate and adapted to the circumstances of the particular case.

Emergency declarations [20.860] The Minister can make declarations lasting for a total period of 60 days in relation to land (not objects), where the threat is "serious and immediate" (s 9), but they do not come into operation immediately (s 14(1)). However, authorised officers can make emergency declarations lasting for up to 48 hours where otherwise the injury or desecration to land would occur before the Minister could make an emergency declaration (s 18). Authorised officers can also make 48 hour emergency declarations in relation to objects.

In Toomelah Boggabilla Local Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs [1996) FCA 924, the Federal Court held that it did not have the power to make an interlocutory (or interim) order compelling the Minister to make an emergency declaration under section 9 of the Act.

passage through or use of an area inconsistent with Aboriginal tradition

Case study: The Hindmarsh Island case

anything done near the area that will adversely affect the use of or the significance of the area consistent with Aboriginal tradition.

[20.870] The circumstances surrounding the Hindmarsh Island case (Norvill v Chapman (1995) 133 ALR 226) notoriously demonstrate the difficulties of securing protection for Aboriginal cultural heritage and the disconnect between indigenous concepts of culture and heritage and indigenous responsibilities to protect significant places, objects and knowledge.

Areas protected, including land and waters, must be of "particular significance to Aboriginals in accordance with Aboriginal tradition" (s 3(1)). Declarations can also be sought in relation to significant Aboriginal objects (s 12), including Aboriginal remains (s 3(1)), where they are used or treated in a manner inconsistent with Aboriginal tradition (s 3(2)).

In July 1994, the Minister for Aboriginal Affairs declared that he was satisfied that the construction of a bridge linking Goolwa to Hindmarsh Island would

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threaten injury to or desecration of a "significant Aboriginal area". The declaration prohibited work for 25 years, except with the Minister's written consent. A report had been forwarded to him for consideration, together with written representations. Since some of the representations contained secret "women's business", the Minister had requested a female member of his staff to read them, and advise him whether they were adequately represented in the report. The Federal Court, in proceedings brought by the company building the bridge and residents of Hindmarsh Island set aside the Minister's declaration on the ground that various preconditions essential to the exercise of the power had not been satisfied. The most significant aspect of the finding, for this discussion, was that the Minister had failed to properly consider the representations attached to the report (see [2.390]), in that he had delegated them and not personally considered them. The Court held that the Minister's duty to consider the representations required an "active intellectual process" on the part of the Minister, and that this duty could not be delegated. See also Bropho v Tickner (1993) 40 FCR 165 and Western Australia v Minister for Aboriginal Affairs (1995) 37 ALD 633. Justice Burchett stated that "Aboriginals, just like all their fellow members of the community, if they wish to avail themselves of legal remedies must do so on the law's terms". Shortly after this decision was handed down, a faction of the local Ngarrindjeri people claimed that the secret women's business submission had been fabricated. This was confirmed by a Royal Commission set up by the South Australian Government. The Minister subsequently commissioned a review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, and appointed Justice Jane Mathews of the Federal Court to head a second federal inquiry into the making of a new declaration. Justice Mathews recommended against the further use of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 on the grounds that available evidence did not warrant its use, and that South Australian legislation was available for protection of the area. Before the release of the report, however, an application was brought by the dissident women for a declaration that Justice Matthews' nomination as Commissioner was incompatible with her commission as a judge of the Federal Court (Wilson v The Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1; [1996] HCA 18). The High Court found in favour of the women declaring that Justice Matthews' appointment breached the separation of powers doctrine. The Commonwealth Government subsequently enacted the Hindmarsh Island Bridge Act 1997, which excluded the operation of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 from the construction of the bridge and its associated works. Other litigation ensued and in Chapman v Luminis Pty Ltd (No 5) (2001) 123 FCR 62; [2001] FCA 1106 von Doussa J rejected claims for damages by the developers. His Honour was not satisfied that the claims of "secret women's business" had been fabricated and many organisations subsequently apologised to the Ngarrindjeri women. This controversy highlighted the need for a culturally appropriate approach to the protection of indigenous heritage, as recommended by the review of the Aboriginal

[20.870]

chapter 20 Aboriginal land and heritage in NSW

and Torres Strait Islander Heritage Protection Act 1984 in 1996 by the Hon Elizabeth Evatt.

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Table of Cases A

ACF v Commonwealth [1980] HCA 53 .................................................. [2.880] AMP Investments Ltd v Newcastle City Council [1999] NSWLEC 164 ..... [5.1400] Aboriginal Affairs, Minister for v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 ............... [2.400], [2.450], [5.1180] Abret v Wingecarribee Shire Council [2011] NSWCA 107 .................................. [3.140] Agostino v Penrith City Council (2010) 172 LGERA 380 ...................... [3.180], [3.190] Ai v Newcastle City Council [2003] NSWLEC 123 .............................................. [5.1190] Alamdo Holdings Pty Ltd v Hills Shire Council [2012] NSWLEC 1302 ............................................ [5.1300]

Ampol Ltd v Environment Protection Authority (unreported, NSWCCA, 26 October 1995) ............................. [9.1160] Anambah Homes Pty Ltd v Maitland City Council [2004] NSWLEC 615 ..... [5.2620] Anderson v Director-General, Department of Environment and Climate Change (2008) 163 LGERA 400; (2008] NSWCA 337 ................... (2.440], (5.1190], [6.170] Anderson v Director-General, Department of Environment and Conservation (2006] NSWLEC 12 ................................ [5.1360] Anderson v Minister for Infrastructure Planning and Natural Resources [2006] NSWLEC 725 .............................. [5.1190] Anderson on behalf of Numbahjing Clan within the Bundjalung Nation v NSW Minister for Planning (2008] NSWLEC 120 .............................................. (14.340]

Aldi Stores v Newcastle City Council [2010] NSWLEC 227 ................................ [3.140]

Anderson on behalf of the Numbahjing Clan within the Bundjalung Nation v NSW Minister for Planning (No 2) (2008) 163 LGERA 132 ................................... [2.930]

Aldous v Greater Taree City Council (2009) 167 LGERA 13; [2009] NSWLEC 17 ....... [1.210], [5.1500], [8.40], [14,340], [14.620]

Andrews v Botany Bay City Council [2008] NSWLEC 96 ................. (3.680], (5.1310], (5.1670], (5.1700], (5.1710]

Alec Finlayson Pty Ltd v Armidale City Council (1994) 84 LGERA 225 .............................................. [9.2890]

Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57 .............................. [2.380]

Allison v Gosford City Council (2001) 112 LGERA 420 ................................... [3.140]

Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2007) 159 LGERA 8 .................................................. (10.310]

Allsands Pty Ltd v Shoalhaven City Council (1993) 78 LGERA435 ................ [5.1950], [5.1980]

Aplin v Queensland [2010] FCA 625 .............................................. (20.540]

Ampol Ltd v Environment Protection Authority (unreported, High Court of Australia, 15 June 1996) .............. [9.1160]

Aquilina v Blacktown City Council (2009] NSWSC 140 .............................. (14.1060]

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Arkibuilt Pty Ltd v Ku-Ring-Gai Council [2006] NSWLEC 502 ................. [5.1890], [5 .1920], [5.2380]

B

Arncliffe Development Pty Ltd v Rockdale City Council [2003] NSWLEC 297 ··· ········· ··················· [5.2000], [5.2230]

BGP Properties Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 ............ ... .. [l.210], [2.330], [5.1250], [5 .1350], [8.30]

Arnold v Minister Administering the Water Management Act 2000 (2010) 240 CLR 242; [2010] HCA 3 ................ ........ [15.70]

BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 ·· ·········· ················ ·············· ···· [5.1320]

Ashfield Municipal Council v Armstrong [2002] NSWCA 269 .. ....... [5.430], [5.490]

BYT Nominees Pty Ltd v North Sydney Council [2008] NSWLEC 164 ....... [5.420]

Ashfield Municipal Council v Australian College of Physical Education (1992) 76 LGRA 151 ............. ........................ [5.210]

Bailey v Forestry Commission of NSW (1989) 67 LGRA200 ... ............. [5.2680], [6.180], [6.200], [6.210], [6.310], [6.360]

Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 ···· ············ ················· [2.450], [5 .1710]

Bailey v NSW Department of Primary Industries [2009] ADT 152 .. ........ .. [19.80]

Association for Berowra Creek Inc v Minister for Planning [2003] NSWLEC 38 ·················· ······························ [5 .1730] Auburn Council v Nehme (1999) 106 LGERA 19; [1999] NSWCA 383 ............... [5.410], [5.1510] Auburn Municipal Council v Szabo (1971) 67 LGRA 427 ................................... [5 .1520] Austcorp No 459 Pty Ltd v Baulkham Hills ' Shire Council [2002] NSWLEC 90 ·········· ············· ························· [5 .2420] Australian Conservation Foundation v Minister for Resources (1989) 76 LGRA 200 .... ........... .... ............. ..... .. ......... [2.850] Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53 ............... [2.810], [2.840], [2.850] Australian Iron & Steel Pty Ltd v Environment Protection Authority (No 2) (1992) 79 LGERA 158 ... ............... [2.640], [9.1450] Azzopardi v Gosford City Council [2002] NSWCA 234 ............ ............. ......... [5 .380]

Balrnain Association Inc v Planning Administrator for Leichhardt Council (1991) 25 NSWLR 615 ................. [2.460], [2.880], [5 .1730] Bankstown City Council v Alamdo Holdings (2005) 223 CLR 660 ................. .. [14.960] Bankstown City Council v Hanna [2014] NSWLEC 152 .............................. [9.1390]

Barton Securities Ltd v Warringah Council (2009) 170 LGERA 223; [2009] NSWLEC 179 ................................... [3.430], [5 .940]

Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council [2000] NSWLEC 243 .................. [5.210], [5.470]

Bathurst City Council v PWC Properties (1998) 195 CLR 566 ..................... [8.350]

Besmaw Pty Ltd v Sutherland Shire Council 127 LGERA 413 .......................... [5.2490]

Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201 ................................ [2.220]

Bezzina Developers Pty Ltd v Leichhardt Municipal Council [2006] NSWLEC 175 .............................................. [5.1530]

Bauer Holdings Pty Ltd v Sydney City Council (1981) 48 LGRA 356 .................. [5.1190], [5.1430] Baulkham Hills Shire Council v Dix [2004] NSWLEC 404 .............................. [5.1800] Baulkham Hills Shire Council v Domachuk (1988) 66 LGRA 110 ..................... [2.210] Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2008] NSWLEC 181 .............. ............ ...................... [5 .120] Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 ..................... [5.230] Bayview Gardens Pty Ltd v Mulgrave Shire Council (1987) 65 LGRA 122 ...... [5.1770] Bechara v Plan Urban Services Pty Ltd [2006] NSWLEC 594 .............. [5.2340], [5 .2390]

Bannister Quest v Australian Fisheries Management Authority (1997) 77 FCR 503 ..... .. ......................................... [19 .80]

Becton Corporation Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2005] NSWLEC 197 .......... ......................... [5.650], [5.660]

Barakat v Building Professionals Board [2009] NSWADT 5 ................................. [5 .1790]

Belmore Residents Action Group Inc v Canterbury City Council [2006] NSWLEC 530 ..................................... ......... [5.1300]

Barca v Wollondilly Shire Council (2014) 205 LGERA 454 .................... [5 .990], [5 .1010] Barclay v Wollongong City Council [2005] NSWLEC 160 .............................. [5.2580] Barker v Kyriakides [2007] NSWLEC 292 ........................................... . [12.1050] Barrington-Gloucester-Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure (2012) 194 LGERA 113; [2012] NSWLEC 197 .. .. ..... [7.700], [8.40] Barton v Orange City Council [2008] NSWLEC 104 .............................. [5.2680]

Belmore Residents Action Group Inc v Canterbury City Council [2005] NSWLEC 258 ................................................ [2.950] Belmorgan Property Development Pty Ltd v GPT Real Estate Ltd [2000] NSWCA 171 .............................................. [5.1190] Ben-Menashe v Ku-ring-gai Municipal Council [2001] NSWLEC 168 ..... [5.1700] Benalup Holdings Pty Ltd v Lismore City Council (1993) 81 LGERA 257 ...................... ........................ [5 .2380] Benevolent Society, The v Waverley Council [2010] NSWLEC 1082 ................ [5.1250]

Bidjara People v State of Queensland [2015] FCAFC 108 ................................. [20.650] Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 85 .................. ............... [5.1560], [5.1730] Black v Johnson (No 2) [2007] NSWLEC 513 ........ .................................... [12.1050] Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279 .............................................. [5 .1300] Blacktown City Council v Lacan Pty Ltd [2008] NSWLEC 172 .................. .. [5 .120] Blue Mountains CC v Laurence Browning Pty Ltd (2006) 150 LGERA 130 .......... [3.180] Blue Mountains Conservation Society Inc v Director-General of National Parks and Wildlife (2004) 133 LGERA 406; [2004] NSWLEC 196 .................. [2.520], [4.440] Bonaccorso v City of Canada Bay City Council [2007] NSWLEC 159 ....... [8.190] Bongiorno Hawkins Frasetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 ................................ [5 .950] Booth v Bosworth (2001) 114 FCR 39; [2001] FCA 1453 .......... [7.510], [7.820], [7.870], [12.240], [17.740] Boral Resources (Country) Pty Ltd v Clarence Valley Council [2009] NSWLEC 81 ..................................... [2.490], [5.340] Botany Bay City Council v Parangool Pty Ltd [2009] NSWLEC 198 .................... [5.430] Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147 ............. ................................... [3 .140]

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Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338; [2009] NSWCA 226 ...... [3.680], [5.1240], [5.1310] Botany Bay City Council v Ralansaab Pty Ltd [2010] NSWLEC 225 ................. [5.1670], [5.1710], [5.1720] Botany Bay City Council v Remath Investments No 6 Pty Ltd [2000] NSWCA 364 ................................... [5.660], [5.710] Botany Bay City Council v Workmate Abrasives Pty Ltd (No 2) [2003] NSWLEC 166 ................................................ [5.530]

Brown v Environment Protection Authority [No 2] (1992) 78 LGERA 119 ...... [2.880], [9.720]

Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 39 LGRA 150 ................................................ [5.240]

Cambridge Credit Corporation Ltd v Parkes Developments Pty Ltd [1974] 2 NSWLR 590 .............................................. [5.1160]

Brown v Forestry Tasmania (No 4) (2006) 157 FCR 1; [2006] FCA 1729 ....... [7.380], [13.70]

Byron Environment Centre, Inc v The Arakwal People (1997) 78 FCR 1 .................................................. (20.500]

Cameron v Lake Macquarie City Council [2000] NSWLEC 34 ...................... [5.160]

Brownlie v State Pollution Control Commission (1992) 76 LGRA 419 .............................................. [9.1220]

Byron Shire Council v Vaughan, Vaughan v Byron Shire Council [2009] NSWLEC 88 ................................................ [14.620]

Brunetto v Collector of Customs (1984) 4 FCR 92 ........................................ [5.1240]

Byron Ventilink Pty Ltd v Byron Shire Council [2005] NSWLEC 395 ................. [17.120], [17.570]

Bryan v Lane Cove Council (2007) 158 LGERA 390 ................................... [3.620]

CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 ....... [5.150], [5.230]

Canterbury District v Canterbury Municipal Council (1991) 73 LGRA317 ........ [3.640]

CEAL Ltd v Minister for Planning [2007] NSWLEC 302 ................................ [5.820]

Canyork Pty Ltd v Wollongong City Council [2003] NSWLEC 125 .................. [14.110]

Building Owners and Managers Association of Australia Ltd v Sydney City Council (1984) 53 LGRA 54 ..... (5.1670], (5.1940]

CPT Manager Ltd v Broken Hill City Council [2010] NSWLEC 69 ......... [2.400], [2.490]

Building Professionals Board v Cogo [2008] NSWADT 119 .............................. [5.1790]

CSR Ltd v Fairfield City Council [2001] NSWLEC 221 .............. [5.1530], [5.2440]

Capital Quarries Ltd v Gunning Shire Council (unreported, Land and Environment Court, 14 August 1989) .......................... [5.1980]

Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Ltd [2013] NSWLEC 48 .............................. [12.1350]

CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25 ............................ [9.1430]

Braithwaite v Minister for Primary Industries [2006] NSWADT 305 .................... [19.80]

Builders Recyclers Investments Pty Ltd v Marrickville Council [2003] NSWLEC 331 ................................................ [5.710]

Brian McMullin v ICI Australia Operations Ltd, National Registration Authority (unreported, Federal Court of Australia, 10 November 1995, Wilcox J) .......... [11.700] Brinara Pty Ltd v Gosford City Council [2010] NSWLEC 25 ......... (5.430], (5.480] Broad Henry v Director-General of the Department of Environment and Conservation [2007] NSWLEC 722 .............................................. [5.1240] Broker Pty Ltd v Shoalhaven City Council (2008) 164 LGERA 161; [2008] NSWCA 311 ................. [5.130], [5.1940], [5.1990] Bropho v Tickner (1993) 40 FCR 165 .............................................. (20.870] Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 .............................................. [5.1190] Brown v Coal Mines Australia Pty Ltd (2010) 76 NSWLR 473; (2010] NSWSC 143 .............................................. [18.390]

Canada Bay Council v F & D Bonaccorso Pty Ltd (2007) 156 LGERA 294 .......... [8.190] Cantarella Bros Pty Ltd v City of Ryde Council [2003] NSWLEC 388 ....... [9.960]

Budby v Queensland [2013] FCAFC 149 .............................................. (20.370]

Breitkopf v Wyong Council (1996) 90 LGERA 269 .............................................. [5.2630]

Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 ............................. [7.930]

C

Botany Municipal Council v Federal Airports Corporation (1992) 79 LGERA 241 ................................................ [1.530]

Brandy v Human Rights and Equal Opportunity Commission (1995) 127 ALR 1 .................................................. [20.340]

Cameron v Nambucca Shire Council (1997) 95 LGERA 268 ............................ [5.1530]

Bullock, Walters and Assoc Pty Ltd v Eurobodalla Shire Council (unreported, Land and Environment Court, 26 March 1984) ........................................... [5.1700] Burke v Forbes Shire Council (1987) 63 LGRA 1 ......................................... [3.740] Burns Philp Trustee Co Ltd v Wollongong City Council (1983) 49 LGRA 420 ................................................ [3.340] Burrell v Jacenko [1998] NSWLEC 164 .............................................. [17.420] Burrell Place Community Action Group Inc v Griffith City Council [2009] NSWLEC 120 ················································ [2.950] Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404 ......... [5.1800]

Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195; [2010] HCA 27 .................................................. [18.40] Caltex Australia Petroleum Pty Ltd v Charben Haulage Pty Ltd [2005] FCAFC 271 ............. ,................................ [9,2840] Caltex Australia Petroleum Pty Ltd v Manly Council [2007] NSWLEC 105 ....... [5.530] Caltex Australia Petroleum Pty Ltd v Manly Council (No 2) [2007] NSWLEC 350 ................................................ [5.450] Caltex Oil (Australia) Pty Ltd v Holroyd Municipal Council (1983) LGRA 77 .................................................. [2.310] Calvin v Carr [1979] 1 NSWLR 1; [1980] AC 574 ············ .................................. [5.1730]

Captain Cook Cruises Pty Ltd v North Sydney Council [2002] NSWLEC 243 ..... [5.1530] Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 ..................... [5.1240] Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Natural Resources (No 3) [2010] NSWLEC 59 .................................................. [2.910] Carr v Goulburn City Council (unreported, 21 June 1983) .............................. [5.1650] Carriage v Stockland (Constructors) Pty Ltd (No 5) [2003] NSWLEC 197 ......... [2.950] Carriage v Stockland Development Pty Ltd [2004] NSWLEC 321 .................... [2.950] Carstens v Pittwater Council (1999) 111 LGERA 1; [1999] NSWLEC 249 ................. [1.210], [5.1180], [5.1350] Carter v Wall (No 2) [2003] NSWLEC 94 ................................................ [19.960] Cartier Holdings Pty Ltd v Newcastle City Council (2001) NSWLEC 170 ..... [5.1400]

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Table of Cases

Cassiniti v Canada Bay Council [2002] NSWLEC 144 .. ............................ [5.2580]

Clark v Wollongong City Council [2008] NSWLEC 110 .............................. [5.2650]

Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65 ................................. [5.1670], [5.1690]

Clifford v Wyong Shire Council (1996) 89 LGERA 240 ................................. [5.1240]

Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401 ...... [2.440], [5.1240] Centro Properties Ltd v Hurstville City Council [2006] NSWLEC 78 ....... [5.1300]

Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317 ..... [5.2320], [5.2490] Cobden-Jones v Woollahra Municipal Council [2002] NSWLEC 2 ............. ........... [5.650]

Centro Properties Pty Ltd v Albury City Council [2005] NSWLEC 721 ..... [5.1300]

Cobreloa Sporting Club & Ethnical Club Ltd v Fairfield City Council [2007] NSWLEC 54 .................................................. [9.960]

Cessnock City Council v Quintaz Pty Ltd [2010] NSWLEC 3 ........................ [9.930]

Coe v Commonwealth (1979) 53 ALJR 403· 24 ALR 118 ................................. [20.230]

Challister Ltd v Blacktown City Council (1992) 76 LGRA 10 ......................... [2.80]

Coffs Harbour Environmental Centre v Coffs Harbour City Council (1991) 74 LGRA185 ....................... [3.120], [5.1270]

Chambers v Maclean Shire Council (2002) 117 LGERA 422; [2002] NSWLEC 1 .................................................. [19.790]

Cohen v Wyong Shire Council [2005] NSWCA 46 .................................... [5.120]

Chambers v Maclean Shire Council (2003) 57 NSWLR 152; [2003] NSWCA 100 ................................................ [5.170]

Cole v Whitfield (1988) 165 CLR 360 ................................................ [1.460]

Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114 ....... [5.170], [5.230]

Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 341 ..... [2.80], [5.2630]

Chapman v Luminis Pty Ltd (No 5) (2001) 123 FCR 62; [2001] FCA 1106 .... [20.870] Charben Haulage Pty Ltd v Environmental & Earth Sciences Pty Ltd [2004] FCA 403 ......... .......... ..... ...................... [9 .2840] Chief Executive, Office of Environment and Heritage v Kyluk Pty Ltd (No 4) [2014] NSWLEC 74 ................ [12.600], [12.620]

Collin C Donges and Associates Pty Ltd v Baulkham Hills Shire Council (1989) 67 LGRA 370 .................... [5.1970], [5.1980] Commercial Radio Coffs Harbour Ltd v Fuller (1986) 60 LGRA 68 ............. [l.530] Commonwealth v Tasmania (1983) 158 CLR 1; 46 ALR 625 ................. [l.370], [l.480], [1.470], [1.490]

Chief Executive Office of Environment and Heritage v Rummery [2012] NSWLEC 271 ............................................ [12.1430]

Commonwealth v Yarmirr [2001] HCA 56 ................................................ [19.270]

Chief Executive of the Office of Environment and Heritage v Humphries [2013] NSWLEC 213 ............................ [12.1440]

Community Association DP 270253 v Woollahra Municipal Council [2013] NSWLEC 184 .............................. [5.1670]

Citizens Airport Environment Association v Maritime Services Board (1992) 78 LGERA 7 .................................................... [6.130]

Concrite Pty Ltd v South Sydney City Council [2001] NSWLEC 227 .................. [5.1450]

Civil and Real Estate v Great Lakes Shire Council (1981) 46 LGRA 283 ........ [5.760]

Conomos v Chryssochoides (1997) 97 LGERA 113 ................................... [5.120]

Conservation of North Ocean Shores Inc v Byron Shire Council (2009) 167 LGERA 52; [2009] NSWLEC 69 .............. . [3.110], [5.1240], [12.920] Consumo Pty Ltd v Fairfield CC [2003] NSWLEC 143 .............................. [5.2320] Cooper v ICI Australia (1987) 31 A Crim R 267 ·············································· [9.1430] Cooper and Wilton v Maitland City Council, (unreported, Land and Environment Court, 19 May 1992) ............................... . [5.930] Corkill v Hope (No 3) (1991) 74 LGRA 33 ··················· [2.400], [17.110], [17.300] Corkill v Forestry Commission of NSW (No 2) (1991) 73 LGRA 126 ................. [2.880] Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121 ............. [5.1440], [5.2630], [6.220] Coshott v Ludwig (1997) 8 BPR 15,519; [1997] NSW ConvR 55-810 .......... [3.220] Council of the City of Sydney v Pink Star Entertainment Pty Ltd [2008] NSWLEC 176 ..... ......................................... [5.1520] Country Energy v Williams (2005) 63 NSWLR 699; [2005] NSWCA 318 ................................................ [2.390] Cracknell and Lonergan Pty Ltd v Council of the City of Sydney (2007) 155 LGERA 291; [2007] NSWLEC 392 ............ [3.220] Cranbrook School v Woollahra Council (2006) 66 NSWLR 379; [2006] NSWCA 155 ................................... [2.310], [3.140] Cranky Rock Road Action Group Inc v Cowra Shire Council [2006] NSWCA 339 ................................................ [5.700] Curac v Shoalhaven City Council (1993) 81 LGERA 124 ................................. [5.1170] Currency Corporation Pty Ltd v Wyong Shire Council [2006] NSWLEC 692 ....... [5.530]

Currey v Sutherland Shire Council [2003] NSWCA 300 .. ................................ [5.660]

D Dames and Moore Pty Ltd v Byron Council [2000] NSWLEC 46 ...................... [5.160] Daniel v Manly Municipal Council (1975) 34 LGRA 14 ..... .................................. [5.420] Daniel v Western Australia (2002) 194 ALR 278; [2002] FCA 1147 ................ [20.530], [20.590] Dareton Local Aboriginal Land Council v Wentworth Council [1995] NSWLEC 239 ·············································· [20.160] Darkinjung Local Aboriginal Land Council [2001] FCA 1124 ......................... [20.650] Darling Casino Ltd v Minister for Planning (1995) 86 LGERA 186 ................... [3.450] Darling Harbour Casino Ltd v Minister for Planning and Sydney Harbour Casino Pty Ltd (1995) 86 LGERA 186 ............ [3.650] De Haas v Williams [2004] NSWLEC 15 ................................................ [5.1170] De Rose v South Australia (2003) 133 FCR 325 ..... ..... ......... ........................... [20.330] De Rose v South Australia [2013] FCA 988 ............................... [20.610], [20.660] De Rose v South Australia (No 2) (2005) 145 FCR 290 ...................................... [20.660] Deerubbin Local Aboriginal Land Council v Minister Administering the Crowns Lands Act [1997] NSWLEC 119 ............ [17.110] Delgamuukw v British Columbia 1997 3 SCR 1010 ································ ············ [20.260] Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263 ................ ···················· ············ [2.920]

Currey v Hargraves [2007] NSWLEC 471 ·············································· [5.2630]

Denham Pty Ltd v Manly Council (1995) 89 LGERA 108 ................................. [5.2020]

Currey v Sutherland Shire Council (1998) 100 LGERA 365 ................................. [5.1240]

Dennis v Parramatta City Council (1981) 43 LGRA 71 ..................................... [5.1420]

979

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Department of Land and Water Conservation, Director-General of v Greentree [2004] NSWLEC 584 ................................ [2.620]

El-Chami Batch) [2011] NSWSC 1620 ············································ [19.650]

Egan v Hawkesbury City Council (1993) 79 LGERA 321 ................................... [5.210]

Derodo Pty Ltd v Ku-ring-gai Municipal Council (1992) 77 LGRA 1 .......... [5.2450]

Director of Public Prosecutions v Serna! Pty Ltd (unreported, Magistrates Court Melbourne, 8 June 1995) ............... [9.480]

Electricity Commission of New South Wales v Environment Protection Authority (1992) 77 LGRA 424 .............................. [9.1230]

Doe v Cogente Pty Ltd (1997) 94 LGERA 305 ················································ [3.220] Dogild Pty Ltd v Warringah Council (2008) 158 LGERA 429; [2008] NSWLEC 53 ················ [5.1670], [5.1690], [5.1700], [5.1890]

Embrey v Owen (1851) 6 Ex 353 ..... [15.210]

Designlink International v Baulkham Hills Shire Council [1999] NSWLEC 218 ·············································· [5.1540] Detala Pty Ltd v Byron Shire Council [2002] NSWCA 404 ................ [5.1790], [5.2480] Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118 .......... [12.600] Director-General, Department of Environment, Climate Change and Water v Venn (No 2) [2011] NSWLEC 232 ·············································· [12.600] Director-General, Department of Environment, Climate Change and Water v Venn (No 3) [2012] NSWLEC 31 ······························· ................. [12.600] Director-General, Department of Environment and Climate Change v Hudson (2009) 165 LGERA 256 ................. [2.620], [12.1530], [12.1540] Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121 ............................... [12.1530]

Donnelly v Marrickville Municipal Council (1973) 28 LGRA 276 ................... [5.1140] Dorrestijn v SA Planning Commission (1984) 59 ALJR 105; 54 LGRA 99 ............ [5.420]

Environment and Heritage, Minister for v Greentree (No 3) (2004) 136 LGERA 89; [2004] FCA 1317 ........................... [7.930] Environment and Heritage, Minister for v Wilson [2004] FCA 4 ..................... [7.930]

Dosan Pty Ltd v Rockdale City Council [2001] NSWLEC 252 ....... [5.420], [5.450]

Environment Protection Authority v Aargus Pty Ltd [2013] NSWLEC 19 ........ [9.2520]

Doueihi v Canterbury City Council [2003] NSWLEC 267 .............................. [5.1120]

Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 .......... [9.1160]

Drake v Minister for Planning [2003] NSWLEC 270 ................................ [2.530]

Environment Protection Authority v Ampol Ltd (1994) 82 LGERA 247 .......... [9.1160]

Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350; [1974] HCA 34 ·················································· [5.480]

Environment Protection Authority v Australian Iron and Steel Pty Ltd (No 2) (1992) 78 LGERA 373 .................. [2.620], [9.1430]

Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 ······ [5.2680], [6.200], [6.210], [6.360]

Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 2) [2010] NSWLEC 73 ............... [11.90], [12.1390], [12.1420]

Drummoyne Municipal Council v Roads and Traffic Authority of NSW (1989) 67 LGRA 155 ..................... [6.180], [6.200], [6.210]

Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 4) [2011] NSWLEC 119 ............................................ [12.1420]

Durable Building Products Pty Ltd v Sutherland Shire Council [2000] NSWLEC 233 ················································ [5.440]

Director-General, Department of Primary Industries v Schembri [2009] NSWSC 1006 ······· ...................... [19.160], [19.650]

Engadine Area Traffic Action Group Inc v Sutherland Shire Council [2004] NSWLEC 264 ............................... [5.2020], [5.2030]

E E H and P H Clifford Pty Ltd v Scone Shire Council (1988) 65 LGRA 391 ...... [5.1980]

Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) (2009) 172 LGERA 225 ········································ ...... [9.1430]

Easeport Pty Ltd v Leichhardt Municipal Council [2001] NSWLEC 2 ......... [5.2010]

Director General, Department of Industry and Investment v Rob Butler (Nee Zachariah

Eaton and Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270; [1972] HCA 33 ·················································· [5.500]

Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280 .............................................. [9.1900] Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289 .............................................. [9.1800] Environment Protection Authority v Brazel [2002] NSWLEC 7 ...................... [9.1440] Environment Protection Authority v Buchanan (No 2) [2009] NSWLEC 31 ................................. [9.1680], [9.1920] Environment Protection Authority v Bulga Coal Management Pty Ltd [2014] NSWLEC 5 .................................. [9.1410] Environment Protection Authority v CSR Building Products Pty Ltd [2008] NSWLEC 224 ............................... [9.1890], [9.1900]

Environment Protection Authority v Caltex Australia Petroleum Ltd [2007] NSWLEC 647 .............................................. [9.1400] Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 .............................................. [9.1790] Environment Protection Authority v Djura [2012] NSWLEC 122 .................. [9.2830] Environment Protection Authority v Du Pont (Australia) Ltd [2013] NSWLEC 98 ................................................ [9.1390] Environment Protection Authority v Eco Cycle Materials Pty Ltd and Scanlan [2003] NSWLEC 63 ................................ [9.1540] Environment Protection Authority v Energy Services International Pty Ltd [2001] NSWLEC 59 ................................ [9.2660] Environment Protection Authority v Forbes Shire Council [2014] NSWLEC 26 ... ·............................................ [9.1410] Environment Protection Authority v Forestry Commission (NSW) [2013] NSWLEC 101 .............................................. [13.470] Environment Protection Authority v Gardner [1997] NSWLEC 212 .................. [9.1890] Environment Protection Authority v Hanna [2013] NSWLEC 41 .................... [9.1950] Environment Protection Authority v Hardt [2006] NSWLEC 438 .................. [9.2500] Environment Protection Authority v Hargraves [2002] NSWLEC 113 .............................................. [9.1780] Environment Protection Authority v Hochtief AG [2006] NSWLEC 200 ............ [9.1320] Environment Protection Authority v Hogan [2008) NSWLEC 125 .................... [9.760] Environment Protection Authority v McConnell Dowell [2003] NSWLEC 70 ················································ [9.1470] Environment Protection Authority v Metalcorp [2001] NSWLEC 207 ·············································· [9.1460]

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The Environmental Law Handbook

Environment and Heritage, Minister for v Greentree [2003] FCA 857 ............. [7.840]

Environment Protection Authority v Milpharma Pty Ltd [1994] NSWLEC 189 .............................................. [9.1440]

Environment Protection Authority v Snowy Mountains Engineering Corporation Ltd (1994) 83 LGERA 51 ................... [9.1470]

Environment Protection Authority v N (1992) 26 NSWLR 352; 76 LGRA 114 .............................................. [9.1170]

Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89 .................................................. [2.670]

Environment Protection Authority v New South Wales [2010] NSWLEC 67 .................................................. [2.670]

Environment Protection Authority v Terrace Earthmoving Pty Ltd [2013] NSWCCA 180 .............................................. [9.2500]

Evans & Spicer v Forestry Commission (1982) 48 LGRA 266 ................... [13.520]

Environment Protection Authority v Orica Australia Pty Ltd (the Hexavalent Chromium Incident) [2014] NSWLEC 106 .............................................. [9.1400]

Environment Protection Authority v Thaler [2005] NSWLEC 109 .................. [9.1950]

F

Environment Protection Authority v Tsaur [2005] NSWLEC 469 .................. [9.1950]

Environment Protection Authority v Pal [2009] NSWLEC 60 .................... [9.1910]

F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537 .............................................. [5.1320]

Environment Protection Authority v Unomedical Pty Ltd (No 3) [2010] NSWLEC 198 .............. [9.1270], [9.1430]

Environment Protection Authority v Pal (No 3) [2011] NSWLEC 194 .............. [9.1910] Environment Protection Authority v Pancorp Australia Pty Ltd [2002] NSWLEC 38 ................................................ [9.1210] Environment Protection Authority v Pannowitz [No 2] [2006] NSWLEC 797 .............................................. [9.1910] Environment Protection Authority v Peters [2006] NSWLEC 465 .................. [9 .1780] Environment Protection Authority v Ramsey Food Processing Pty Ltd [2010] NSWLEC 23 ................................................ [9.1400] Environment Protection Authority v Ramsey Food Processing Pty Ltd (No 2) [2010] NSWLEC 175 .............. [9.1580], [9.1950] Environment Protection Authority v Ramsey Food Processing Pty Ltd (No 3) [2011] NSWLEC 180 .............. [9.1580], [9.1950] Environment Protection Authority v Ramsey Food Processing Pty Ltd (No 4) [2011] NSWLEC 246 .............. [9.1580], [9.1950] Environment Protection Authority v Shell Co of Australia Ltd [2000] NSWLEC 132 .............................................. [9.1770] Environment Protection Authority v Shoalhaven Starches Pty Ltd [2006] NSWLEC 685 ............... [9.880], [9.1280], [9.1580], [9.1900], [9.1920]

Environment Protection Authority v Unomedical Pty Ltd (No 4) [2011] NSWLEC 131 .............................. [9 .1270]

Environment and Heritage, Minister for v Warne [2007] FCA 599 .................. [7.930] Eucalypt Group Pty Ltd v Robin [2003] 2 Qd R 488; [2003] QSC 63 ..................... [2.70]

F Hannan Pty Ltd v Electricity Commission (NSW) (No 3) (1985) 66 LGRA 306 ............................... [5.1730], [5.2670] FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141 .............................................. [20.430]

Environment Protection Authority v Waight (No 3) [2001] NSWLEC 126 ....... [9.1920]

Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373 ................. [5.1400]

Environment Protection Authority v Warringah Golf Club [2003] NSWLEC 140 .............................................. [9.1110]

Fairfield City Council v Holroyd City Council [1999] NSWLEC 122 .................. [5.1720]

Environment Protection Authority v Warringah Golf Club Ltd (No 2) [2003] NSWLEC 222 .............. [9.1890], [9.1920] Environment Protection Authority v Water Board (1993) 79 LGERA 103 ...... [9.1430] Environment Protection Authority v Wattke and Geerdink [2010] NSWLEC 24 .................................................. [2.670] Environment Protection Authority v Wattke and Gerrdink [2010] NSWLEC 23 ................................................ [9.1910]

Fairfield City Council v Liu Lonza & Beauty Holdings (unreported, NSW Court of Appeal, February 1997) ............... [5.1470] Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41 ................ [5.1890] Farah v Warringah Council [2006] NSWLEC 191 ................................................ [5.650] Fatsel Pty Ltd v ACR Trading Pty Ltd (No 3) (1987) 64 LGRA 177 ....... [2.700], [5.410] Fejo v Northern Territory of Australia (1998) 195 CLR 96 ................................. [20.260]

Environment Protection Authority v Wyanga Holdings Pty Ltd [2014] NSWLEC 68 ................................................ [9.1800]

Fernance Family Holdings Pty Ltd v Newcastle City Council [2000] NSWLEC 190 .............................................. [5.2350]

Environment and Climate Change, Department of v Olmwood Pty Ltd [2010] NSWLEC 15 ................................ [5.2490]

Filipowski v Mediterranean Shipping Company SA [2005] NSWLEC 159 .................... .......................... [9.2170]

Environment and Climate Change, Department of v Wilton [2008] NSWLEC 297 .............................................. [13.840]

Fitch v Shoalhaven City Council (1987) 67 LGRA 165 ................................... [5.1890]

Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71 ....... [5.470], [5.1250] Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 ................................ [5.230] Forestry Tasmania v Brown (2007) 167 FCR 34; 158 LGERA 191; [2007] FCAFC 186 ................................... [7.380], [13.70] Fortunate Investments Pty Ltd v North Sydney Council (2001) 114 LGERA 1; [2001] NSWLEC 70 ......... [2.130], [3.140] Franklins Ltd v Penrith City Council [1999] NSWCA 134 ................................ [5.1240] Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke [2008] NSWSC 743 ............... [2.70] Frevcourt v Wingecarribee Shire Council (1993) 80 LGERA 75 ................... [5.1940] Frevcourt Pty Ltd v Wingecarribee Shire Council [2003] NSWLEC 206 ..... [5.2030] Frevcourt Pty Ltd v Wingecarribee Shire Council [2005] NSWCA 107 ...... [5.2020], [5.2030] Fridrich Constructions Pty Ltd v Leichhardt Municipal Council (unreported, Land and Environment Court, 23 December 1982) ............................ [5.1300], [5.1430] Friends of Hinchinbrook Society Inc v Minister for Environment (1997) 77 FCR 153 ................................................ [2.410] Friends of Hinchinbrook Society Inc v Minister for Environment (No 2) (1997) 69 FCR 28 ............................................ [7.70] Friends of King Edward Park Inc v Newcastle City Council (No 2) [2015] NSWLEC 76 ..................................... [4.540], [8.200] Friends of Malua Bay Inc v Perkins (2014) 203 LGERA 14 ............................ [5.1240] Friends of Pryor Park Inc v Ryde Council [1995] NSWLEC 160 .................... [5.210] Friends of Pryor Park Inc v Ryde City Council (1995) 89 LGERA 226 ................... [5.200] Friends of South West Rocks Inc v Machro Pty Ltd (2004) 136 LGERA 198 .............................................. [14.340]

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Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) (2013] NSWLEC 38 .................................................. (6.200]

Table of Cases

Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002] NSWLEC 75 .................... [5.1480]

Gwandalan Summerland Point Action Group Inc v Minister for Planning (2009) 75 NSWLR 269; [2009] NSWLEC 140 ................................................ [2.400]

Grace v Thomas Street Cafe Pty Ltd (2007) 159 LGERA 57; (2007] NSWCA 359 ..................... (5.420], (5.430], (5.480]

H

Helman v Byron Shire Council (1995) 87 LGERA 349 ................................... [5.710]

Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; (2002] HCA 54 ................................. [14.950], (19.800]

H Jones and Co Pty Ltd v Kingborough Corporation (1950) 82 CLR 282 .............................................. [15.210]

Hemmes Hermitage Pty Ltd v City of Sydney Council [2004] NSWLEC 539 ....... [5.660]

Gray v Macquarie Generation (2010] NSWLEC 34 ................................ (10.310]

Haggarty & Morrison Pty Ltd v New South Wales (1995) 98 LGERA 226 ...... [13.240]

Gray v Macquarie Generation (No 2) (2010] NSWLEC 82 .................................. [2.910]

Halsey v Esso Petroleum Co Ltd (1961) 2 ALR 145 ........................................ [2.180]

Gray v Minister for Planning (2006] NSWLEC 720 .............. (5.1360], [5.1370]

Harbour Port Constructions Pty Ltd v Woollahra Municipal Council [2004] NSWLEC 283 .............................. [17.620]

G

GHD Pty Ltd v Palerang Council (2009] NSWLEC 1342 .......................... (14.1120] GPT RE Ltd v Belmorgan Property Development Pty Ltd (2008] NSWCA 256 ................................................ [2.490] GPT Re Ltd v Wollongong City Council (2006] NSWLEC 303 ................. (5.1500], (5.1530] Galandon Pty Ltd v Narrabri Shire Council (1983) 51 LGRA 5 ....................... (5.1680] Gales Holdings Pty Ltd v Tweed Shire Council (2006] NSWLEC 85 .................... (5.1350] Gales Holdings Pty Ltd v Tweed Shire Council (2008] NSWLEC 209 .................. (14.190] Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514; (2013] NSWCA 382 ..................... (2.160], (2.200], (2.230] Gann v Sutherland Shire Council (2008] NSWLEC 157 .............................. [5.2370]

Greek Australian Finance Corp v Sydney City Council (1974) 29 LGRA 130 ...... [5.1760] Green v Kogarah Municipal Council (2001] NSWCA 123 ................................ [5.2490] Greengate Consulting (NSW) Pty Ltd t/as Greengate Property Group v Ashfield Municipal Council (2008] NSWLEC 253 ................................................ (5.420]

Garrett v Freeman (No 5) (2009) 164 LGERA 287; (2009] NSWLEC 1 ................ (6.100]

Greenpeace Australia Ltd v Redbank Power Co Pty Ltd (1994) 86 LGRA 143 ................................................ [1.220]

Gee v Council of The City Of Sydney (2004] NSWLEC 581 .............................. (5.1240]

Greentree v Minister for Environment and Heritage (2005) 144 FCR 388 ....... [7.930]

George v Queensland (2008] FCA 1518 ............................................ (20.490]

Grosvenor Australia Properties Pty Ltd v The Council of the City of Sydney (2006) 147 LGERA 25; [2006] NSWLEC 2 70 ................................................ [5.960]

Gerondal v Eurobodalla Shire Council (2011] NSWLEC 77 ................................ (9.1750] Gibson v Mosman Municipal Council (2001] NSWLEC 134 ................................ (5.650] Goldberg v Waverley Council (2007) 156 LGERA 27; (2007] NSWLEC 259 ........ (5.650], (6.130], (6.230], (6.330] Goldberg v Waverley Council (2008] NSWLEC 49 .................................. [6.210] Golden Paradise Corporation v Kogarah Municipal Council (2003] NSWLEC 155 ................................................ (8.340]

Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) (2007) 238 ALR 1 ........................ [20.530]

He Kaw Teh v The Queen (1985) 157 CLR 523 ................ ................. [2.610], [9.1430] Health Administration Corp v Ryde City Council (2005) NSWLEC 507 ....... [5.230]

Hill v Blacktown City Council [2007] NSWLEC 401 .............. [5.1670], [5.1680] Hill v Blacktown City Council [2008] NSWLEC 203 .............................. [5.1680] Hill v Woollahra Municipal Council [2003] NSWCA 106 ................................ [5.1240] Hill Top Residents Action Group Inc v Minister for Planning (2009) 171 LGERA 247; [2009] NSWLEC 185 ............. [5.90], [5.150]

Harris v Great Barrier Reef Marine Park Authority (2000) 98 FCR 60 ....... [20.440]

Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472; [2004] HCA 59 ....................... [5.90], [5.420], [5.2510]

Hastings Cooperative Ltd v Port Macquarie Hastings Council (2009) 167 LGERA 205 ................................................ [3.140]

Hillpalm Pty Ltd v Tweed Shire Council • [2002] NSWLEC 17 ....... [5.650], [5.1120]

Hastings Municipal Council v Mineral Deposits Ltd (1981) 43 LGRA 198 ................................................ [5.440]

Hills Shire Council, The v Kinnarney Civil & Earthworks Pty Ltd [2012] NSWLEC 45 ................................. [9.1430], [9.2500]

Hastings Point Progress Association Inc v Tweed Shire Council [2008] NSWLEC 180 .............................................. [5.1240]

Hilltop Planners Pty Ltd v Great Lakes Council (2003) 127 LGERA 333; [2003] NSWLEC 214 ............. [5.1560], [5.1730], [5.2440]

Hastings Point Progress Association v Tweed Tweed Shire Council (2009) 168 LGERA 99 .................................................. [3.580]

Hockitt Pastoral Co Pty Ltd v Great Lakes Shire Council [2007] NSWLEC 514 ................................................ [2.130]

Gumana v Northern Territory (2007) 158 FCR 349 ...................................... [20.560]

Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39 ...................... [2.900], [2.910]

Holborow v State of Western Australia [2002] FCA 1428 ............................. ....... [20.530]

Gunning Sustainable Development Association Inc v Upper Lachlan Council [2005] NSWLEC 23 ...................... [5.380]

Hawkesbury City Council v Agostino [2009] NSWLEC 176 .......................... .... [5.2680]

Guilfoile v Lake Macquarie City Council (2002)119 LGERA 300 .................. [3.140]

Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (1986) 7 NSWLR 353 ..................... [4.590], [6.280], [6.350]

Hawkesbury City Council v Sammut [2002] NSWCA 18 .................................. [5.2540] Haywood v Brunswick Permanent Building Society (1881) 8 QBD 403 ............... [2.90]

Holidays-A-Float Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127 ...... [5.2540] Homeworld Ballina Pty Ltd v Ballina SC (2010) 172 LGERA 211 ................. [3.640] Hooker Corp Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 ················································ [3.400]

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Hooper v Lucas (1990) 71 LGRA 27 ·················································· [5.930)

I

Hope v Council of the City of Bathurst [1980) HCA 16 ............. .......................... [5.2350)

ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; [2009) HCA 51 ...... [1.390), [15.70), [15.700], [15.810]

Hornsby Shire Council v Porter (1990) 20 LGRA 175 ..................................... [5.930) Houlton v Woollahra Municipal Council (1997) 95 LGERA 201 ................. [5.2320) Houlton v Woollahra Municipal Council [1998) NSWLEC 188 .................. [5.1240) House of Peace Pty Ltd v Bankstown City Council (2000)106 LGERA 440; [2000) NSWCA 44 ...... .. [3.140), [5.420), [5.430), [5.1510) Huang v Hurstville City Council (No 2) [2012) NSWCA 177 ...................... [3.180) Hudak v Waverley Municipal Council (1990) 70 LGRA 130 ................................ [5.450) Humane Society International v Minister for Environment and Heritage (2003) 126 FCR 205 ················································ [7.520) Hunt v Blacktown City Council (1999)107 LGERA 156 ................................... [3.140) Hunt v Blacktown City Council [2001) NSWCA 216 ................................ [5.1270) Hunter Development Brokerage Pty Ltd v Cessnock City Council [2005) NSWCA 169 .............................................. [5.2470] Hunter Ecologically Sustainable Employment Group Inc v HEZ Pty Ltd [2003) NSWLEC 357 ................................................ [2.950) Hunter Environment Lobby Inc v Minister for Planning & Ulan Coal Mines [2011) NSWLEC 221 .............................. [10.310) Hunter Environment Lobby Inc v Minister for Planning (No 2) [2012] NSWLEC 40 ................................................ [10.310)

IDA Safe Constructions Pty Ltd v Woollahra Municipal Council (1981) 48 LGRA 62 ······ [3.650], [3.660), [5.1160], [5.1430] Idameneo (No 9) Pty Ltd v Great Lakes Shire Council (1990) 70 LGRA 27 ........ [5.2020)

Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board (2011) 243 CLR 558; [2011) HCA 19 ............................ [18.710] Jessica Estates v Lennard (2007) 156 LGERA 266; [2007) NSWSC 1175 ............. [3.220] Jessica Estates v Lennard [2007] NSWSC 1434 ................................... ............. [2.70] Johnson v Lake Macquarie City Council (1996) 91 LGERA331 ................. [5.1170)

lnghams Enterprises Pty Ltd v Kira Holdings Pty Ltd (1996) 90 LGERA 68 ...... [5.1450]

Jojeni Investments Pty Ltd v Mosman Municipal Council [2015) NSWCA 147 ················································ [5.530)

Ireland v Cessnock City Council [1999] NSWLEC 153 .............................. [5.2600)

Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99 .............................. .. [5.2420)

Iris Diversified Property Pty Ltd v Randwick City Council [2010) NSWLEC 58 .................................................. [5.480)

Jones v John Lysaght (Australia) Ltd (1983) 51 LGRA 90 ................................ [9.1370)

Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 .......... [5.2460], [5.2490]

Jungar Holdings v Eurobodalla Shire Council (1989) 70 LGRA 79 ..................... [5.1530)

K

Issa v Burwood Council (2004) 137 LGERA 221 ................................................ (3.140)

KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 ................. [2.950)

Issa v Burwood Council (2005] NSWCA 38 .................................................. [5.170)

Kahn v Minister for Immigration, Local Government and Ethnic Affairs (1987) 14 ALD 291 ........................................ [2.440)

J JPR Legal Pty Ltd v Marrickville Council [2009] NSWLEC 1216 ................ (5.1420) Jambrecina v Blacktown City Council [2009) NSWCA 228 ....... ........................... [5.120) Jango v Northern Territory (2006) 152 FCR 150; [2006) FCA 318 ................... (20.660) Jango v Northern Territory (2007) 159 FCR 531; [2007) FCAFC 101 ...... ....... (20.610], [20.660]

Kanak v Minister for Land and Water Conservation (2000) 106 FCR 31; [2000] FCA 1105 ..................... [20.290), [20.650) Kayuga Coal Pty Ltd v Ducey [2000] NSWCA 54 ................................................ [18.350] Keay v Wollongong City Council [2008) NSWLEC 243 ..... ...... ... .................. [5.420) Keech v Western Lands Commissioner [2003] NSWLEC 215 .............................. [11.430] Kennedy v NSW Minister for Planning [2010] NSWLEC 240 .............................. [14.620)

Kennedy v Queensland [2002) FCA 747 ·············································· [20.650) Kent v Johnson (1973) 21 FLR 177 ··································· [2.170), [2.220) Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 ................... [5.1400) Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 .......... [5.1190) Kiama Municipal Council v French (1984) 54 LGRA 42 ....................................... [5.150) Kimber v Ku-ring-gai Municipal Council (1990) 130 LGERA 117 ............... [17.640) Kinder Investments Pty Ltd v Sydney City Council [2005) NSWLEC 737 ..... [5.2440) Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA277; [2006) NSWCA 23 ...... [2.430), [2.440), [5.1190), [5.1200), [5.1560), [5.1730) Kindimindi Investments Pty Ltd v Lane Cove Council (2007) 150 LGERA 333; [2007] NSWCA 38 .................. [5.1500), [5.1640) King v Bathurst Regional Council [2006] NSWLEC 505 ............. [5.1240), [5.1670), [5.2340), [5.2390) King v Great Lakes Shire Council (1986) 58 LGRA 366 ...... [5.650), [5.1390], [5.1530) King v Lewis (1995) 88 LGERA 183 ................................... [5.450], [5.560) King v Minister for Planning [2010] NSWLEC 1102 .......... ............ ...... [5.1510) Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010) HCA 1 ............... [2.510), (5.2650), [13.450), [18.1030) Kivi v Forestry Commission of NSW (1982) 47 LGRA 37 .................................. [6.210]

Hunter Water Board v State Rail Authority of NSW (1992) 75 LGRA 15 ........... [9.1430)

Jarasius v Forestry Commission of NSW (1988) 71 LGRA 79 .... (5.1470), [5.2680], [6.180), [6.210), [6.310), [6.350], [6.360)

Kennedy v NSW Minister for Planning [2010) NSWLEC 269 ................................ [2.910)

Kogarah Municipal Council v Golden Paradise Corporation [2005) NSWCA 230 ·································· ·············· [8.340]

Hutchison 3G Australia Pty Ltd v Waverley Council [2002) NSWLEC 151 ..... [5.1680)

Jeffrnan Pty Ltd v Environment Protection Authority [2011] NSWLEC 89 .... [9.2700]

Kennedy v National Parks and Wildlife Service [2002) NSWLEC 67 ......... [20. 730)

Kogarah Municipal Council v Kent (1981) 46 LGRA 334 ..................................... [5.650]

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Ku-rng-gai Municipal Council v Masterplan Consultants Pty Ltd [1999] NSWCA 167 ················································ [8.220]

Leichhardt Municipal Council v Maritime Services Board (1985) 57 LGRA 169 ················································ [6.200]

Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402 .............. [5.1420], [5.1480]

Leichhardt Municipal Council v Minister for Planning (1992) 77 LGRA 64 ..... [5.1530], [17.390]

L

Leichhardt Municipal Council v Minister for Planning (1992) 78 LGERA 306 ...... [3.380], [3.650], [3.660], [5.1170]

Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313 ............... [5.1670], [5.1690], [5.1890], [5.1920], [5.1940], [5.1960]

Lemworth Pty Ltd v Liverpool City Council [2001] NSWCA 389 ...................... [5.520]

Lane Cove Council v Optus Networks (1996) 90 LGERA 232 .............................. [1.530]

Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61 ...... [2.490], [2.510], [5.1530], [17.320]

Lane Cove Municipal Council v Lujeta Pty Ltd (1986) 58 LGRA 157 .............. [5.560] Lanyon Pty Ltd v Canberra Washed Sand Pty Ltd (1966) 115 CLR 342 ........... [14.1060] Lardil Peoples v Queensland (1999) 95 FCR 14 and (2001) 108 FCR 453 ........ [20.440] Laurie v Land and Environment Court (NSW) (2002) 123 LGERA 179 ................. [3.180] Lawson v Minister Assisting the Minister for Natural Resources (Lands) (2004) 139 FCR 548; [2004] FCAFC 308 ..... [20.610], [20.670] Lawson on behalf of the "Pooncarie" Barkandji (Paakantyi) People v Minister for Land and Water Conservation for NSW [2002] FCA 1517 ......................... [20.530] Lawyers for Forests v Minister for the Environment, Heritage and the Arts (No 2) [2009] FCA 466 ............................. [2.900]

Lennard v Jessica Estates Pty Ltd (2008) 71 NSWLR 306; [2008] NSWCA 121 ······································· [2.80], [5.80]

Loreto Normanhurst Association Inc v Hornsby Shire Council [2002] NSWLEC 45 ................................................ [5.1520] Lorna Hodgkinson Sunshine Home v Lane Cove Municipal Council (1979) 38 LGRA 282 ................................................ [5.240] Lowy v Land and Environment Court [2002] NSWCA 353 .................................. [5.950] Ludwig v Coshott (1994) 83 LGERA 22 .................................................. [3.220] Lyons v Sutherland Shire Council (2001) 117 LGERA 334; [2001] NSWCA 430 .............................................. [17.640]

Makram Constructions Pty Ltd v North Sydney Council [2002] NSWLEC 4 .................................................. [5.2320] Malcolm v Newcastle City Council (1991) 73 LGRA 356 ................................... [5.1530] Manly Council v Horizon Habitats Pty Ltd [2015] NSWLEC 15 .................. [12.1070] Manly Council v Hortis [2001] NSWCA 81 ................................................ [5.1240] Marchese and Partners Architects v Warringah Council [2002] NSWLEC 41 ........... [5.70] Mark Anderson on behalf of the Spinifex People v State of Western Australia [2000] FCA 1717 .................................... [20.600]

M

Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 ............................... [15.280] Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145 ................................................ [2.450]

Lesnewski v Mosman Municipal Council [2005] NSWCA 99 .......... [2.510], [5.930], [5.1170], [5.2650]

M J Davis Industrial Pty Ltd v Fairfield City Council [1999] NSWSC 829 ........ [5.1770] MCC Energy Pty Ltd v Wyong Shire Council [2006] NSWLEC 581 .................. [5.1440]

Marsh v Baxter [2014] WASC 187 ............................................ [11.1160]

Levadetes v Hawkesbury Shire Council (1988) 67 LGRA 190 .............................. [5.2020]

MLC Properties v Camden Council (1997) 96 LGERA 52 ................................... [5.1890]

Martin Morris & Jones Pty Ltd v Shoalhaven City Council [2012] NSWLEC 1280 ............................. [5.1420], [5.1480]

Levenstrath Community Association Inc v Tomies Timber (2000) 108 LGERA 176; [2000] NSWLEC 95 .... [5.1170], [5.1740], [5.2630]

Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23 ............. [1.330], [4.20], [19.270], [20.220]

Lesnewski v Mosman Municipal Council [2004] NSWLEC 99 .................... [5.1800]

Liauw v Gosford City Council (2004) 136 LGERA 349; [2004] NSWLEC 72 ················ ····················· [3.140], [5.230] Link v Minister for Primary Industries [2007] NSWSC 1011 .............................. [19.410]

Lean Lackenby & Haywood Liverpool Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 406 .............................. [5.1680]

Lismore City Council v Ihalainen [2013] NSWLEC 149 ................................ [9.940]

Lederer v Sydney City Council [2001] NSWLEC 272 .............................. [5.2580]

Lismore City Council v Richmond Valley Council [2003] NSWLEC 295 ..... [5.1910]

Lee v Commonwealth of Australia (2014) 229 FCR 431; [2014] FCAFC 174 ...... [15.700]

Liverpool City Council v Cauchi (2005) 145 LGERA 1; [2005] NSWLEC 675 ················································ [9.940]

Legal and General Life of Australia Ltd v North Sydney Municipal Council (1990) 69 LGRA 201 ..... ..................... ...... [3.400]

London County Council v Allen (1914) 3 KB 642 .................................... .............. [2.90]

Londish v Knox Grammar School (1997) 97 LGERA 1 ....................................... [5.170]

Mabo (No 1) v Queensland (1988) 166 CLR 186 .............................................. [20.260]

Marvan Properties Pty Ltd v Randwick City Council [2005] NSWLEC 9 ........ [5.1790], [5.2420] Mason v Tritton (1994) 34 NSWLR 572 ............... [19.270], [19.280], [19.290]

MacDonald v Mosman Municipal Council (1999) 105 LGERA 49; [1999] NSWLEC 215 ................................. [2.130], [5.1650]

Mathews v Goulburn Wool Processors Pty Ltd (1987) 10 NSWLR 419 ................ [9.1210]

Macquarie Generation v Hodgson [2011] NSWCA 424 .................................. [9.710]

Maule v Liporoni [2002] NSWLEC 25 .................................................. [5.380]

Macquarie International Health Clinic Pty Ltd v University of Sydney (1998) 98 LGERA 218 ................................................ [5.230]

Maxnox Pty Ltd v Hurstville City Council [2006] NSWLEC 146 .................. [5.1320]

Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455 ............... [2.510], [5.1770], [5 .1990], [5.2620], [5.2640], [5.2650]

Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 1127 ············································ [5.1300] McDougall v Warringah Shire Council (1993) 80 LGERA 151 .............................. [5.650]

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McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; (2008) NSWCA 209 ······· (2.400), (5.700), (5 .710), [5.720), [5 .1240), (5.1310) McGregor v Bathurst City Council (1995) NSWLEC 71 ... ............. ....... .. ...... . (5.1690) Mcllveen v Baiada Pty Ltd (2003) NSWLEC 174 .. ................... .. ..... .. .................. [5,530] McIntyre v Pittwater Council (2000) NSWLEC 160 .......... .. .. ................ [5.1450) Mees v Roads Corporation (2003) 128 FCR 418; [2003] FCA 306 ................ .. .. . [7.490) Melville v Craig Nowlan & Associates Pty Ltd (2002) NSWCA 32 .. .. .. ................. . [2.950) Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 ............................... [20,240), (20.480) Meriton Apartments Pty Ltd v Fairfield City Council (No 2) [2005) NSWLEC 121 ....................... ............. .......... .. [5.960) Meriton Apartments Pty Ltd v Fairfield Council (2004) NSWLEC 423 ...... (5.430), (5.440), [5.450) Meriton Apartments Pty Ltd v Ku-ring-gai Council [2006) NSWLEC 776 .. ... [5.1940)

Minister Administering Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2) [2001) NSWCA 28 ....... .. ... (20.100) Minister Administering Crown Lands Act v New South Wales Aboriginal Land Council (No 2) (1993) 80 LGERA 173 ....... [5 .170) Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) (2001) NSWCA 28 ..... .. ......... ... .. .... ... .................... (20.110) Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) HCA 48 ...... ... ... [5 .90), [20.100), [20.110) Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (Goomallee Claim) (2012) 84 NSWLR 219; (2012) NSWCA 358 .......... .. .. (4.330) Minster for Environment, Heritage and the Arts v Lamattina (2009) 167 LGERA 219; (2009) FCA 753 .................. ......... .. [7.930) Mirvac Projects Pty Ltd v Ku-ring-gai Council (2007) NSWLEC 113 ............ .. .. .... [5.960) Mison v Randwick Municipal Council (1991) 23 NSWLR 734; 73 LGRA 349 ............... (5 .1530); [5 .1730), (5 .1740) Mittagong Mushrooms Pty Ltd v Narambulla Action Group Inc (1998) 97 LGERA 333 .. .................. ................... .. .. ..... [3.140)

Morrison v Mahon (2007) NSWLEC 416 .............................................. [9.2170)

NSW Fisheries v Payanouvong (2004] NSWSC 1092 .. ............................ [19.630]

Moslem Alawy Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79 ............. ....... ......... ... .................. [5.420]

NTL Australia Ltd v Willoughby Council [2000) NSWLEC 244 .................... [2.130]

Motbey v Hollis (2003] NSWLEC 40 ...... ...... .. ....... .. .............. [5,380], [5.650] Mato Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280 .. .. . [5 .2350] Moua wad v The Hills Shire Council [2013] NSWLEC 165 .. ............... .. ........ ... (9 .2500] Moy v Warringah Council [2004] NSWCCA 77 .. .... ................. ............... .......... [5.1800] Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 .. ..... .. ........ .. [5 .120] Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 .................... .. ... [1.460) Murrumbidgee Ground Water Preservation Association v Minister for Natural Resources [2004) NSWLEC 122 ............................ .... .............. [15.490] Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11; [2005] NSWCA 10 .... [2.450], [15.320], [15.360], [15.700)

Najask Pty Ltd v Palerang Council (2009) 165 LGERA 171; (2009] NSWCA 39 ...... .. ...... .............. .. ............. ....... [5.120] Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38 ........ (2.490], [2.500], (5 .1460], [6.210] National Australia Bank v Drummoyne Municipal Council (1988) 130 LGERA 299; [1988] NSWLEC 63 ............ (17.660) National Parks Association of NSW v Minister for the Environment (1992) 130 LGERA 443 ... .. ................. (4.340], [4.500] Natural Resources, Minister for v NSW Aboriginal Land Council (1987) 62 LGRA 409 .............. .... .. .................... ..... . (5.1240] Nature Conservation Council (NSW) Inc v Minister Administering the Water Management Act 2000 (2005) 137 LGERA 320; [2005] NSWCA 9 ............... [15 .280], [15 .290], [15 .350] Natva Developments Pty Ltd v McDonald Bros Pty Ltd [2004] NSWSC 777 .... .. ........ ..... .............. ....... ........ [3,220]

Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning (2000) 107 LGERA 363; [2000) NSWLEC 20 ............... .. .. [2.460), [5 .1890), (5.1900)

Mona Vale Pty Ltd v Pittwater Council (2003) NSWLEC 74 .... ... [5.470), (5.490], [5.520)

Murrumbidgee Horticultural Council Inc v Minister for Land and Water Conservation (2003) 12 7 LG ERA 450 ............... [15. 770]

Mete v Warringah Council (2004) 133 LGERA 420 .... .. ..... .. ................. ..... [3.580)

Monier PGH Holdings Ltd v Blacktown City Council (1998) 102 LGERA 24 ..... (3.140)

Musumeci v NSW Department of Primary Industries (2008] NSWADT 129 .... (19.80]

Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290; 116 ALR 460 ..... ........... [3 .740), (14.960)

Moore Development Group Pty Ltd v Pittwater Council (2003) NSWLEC 130 .... .. ...... ............ ..... ................... [5 .520)

Mutual Pools & Staff Pty Ltd (1994) 179 CLR 155; [1994) HCA 9 .. ........... (15 .700]

Moorebank Recyclers Pty Ltd v Liverpool City Council (2009) NSWLEC 100 ........ .... .. .... ........ ........ ............ [5 .1180]

Myall Koala and Environment Support Group v Great Lakes Shire Council (unreported, Land and Environment Court, 17 October 1990) ....................... .... .. .............. (14.420]

Morgan v Commonwealth (1947) 74 CLR 421 ............. .. .............. .... .......... .... . (15 .70)

N

New South Wales v McMullin (1997) 73 FCR 246 ....... ........................ ....... ........ (11 .700]

NSW v Commonwealth (1975) 135 CLR 337 ....................... .. .. .. .... [1.470], [19 .100]

New South Wales Aboriginal Land Council v Mark Hoddinott (1999] NSWLEC 41 ................... ......................... .. .. (20.130)

Mike George Planning Pty Ltd v Woollahra Municipal Council (No 3) [2014) NSWLEC 123 .... .............. ............ .. [3 .140) Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 .............. .............. .................. .. (20.40] Miller v Jackson (1977) 1 QB 975 ..... [2.160)

Morris v Kanssen [1946] AC 459 ..... [5.1240] Morrison v Defence Maritime Services Pty Ltd (2007] NSWLEC 421 ..... .. ........... [9.2170]

Nelson v Burwood Municipal Council (1991) 75 LGRA 39 ..................... .... .. ....... [5 .930] Nettheim v Minister (1988) 16 ALD 796 .. .... .... .... ......... .. .... ........ .. ..... .. [17.220] New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 126 LGERA 303; [2003) NSWLEC 154 .. .... ......... [5.1270], [5.1470], (5.1480] New South Wales v Commonwealth (WorkChoices Case) (2006) 229 CLR 1; [2006] HCA 52 ..................... .. ....... [1.490]

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Table of Cases

New South Wales Aboriginal Land Council v The Minister (1988) 14 NSWLR 685 ·············································· [20.110]

North Cronulla Precinct Association Inc v Sutherland Shire Council (1999) 107 LGERA 274 ................................... [8.350]

Newbury District Council v Secretary for the Environment [1981] AC 578; [1980] 1 All ER 731 ........................................ [5.1670]

North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 ............................... [20.340], [20.600]

Oshlack v Rous Water [2011] NSWLEC 73 ....................................... [6.70], [6.200]

Newcastle City Council v Northern Residential Pty Ltd [2009] NSWCA 141 .............................................. [5.1860]

North Sydney Council v Gilmour [2009] NSWLEC 93 .................................. [5.120]

Our Firm Facility Pty Ltd v Wyong Shire Council [2001] NSWLEC 243 ....... [2.130]

North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; 91 LGERA 352; [1996] HCA 20 .................. [5.90], [5.650]

Owens v Longhurst (1998) NSW SC 387 ................................................ [3.220]

Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493; [1957] HCA 15 .................................................... [5.90] Newcastle Port Corporation v MS Magdalene Schiffahrtsgesellschaft MBH [2013] NSWLEC 2010 ............................ [9.2300] Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd [2010] NSWLEC 48 ...... [1.230], [4.130], [6.210], [12.1100] Newcrest Mining (WA) Ltd v Commonwealth (1997) 147 ALR 42 ........................ [1.380] Newton v Great Lakes Council [2013] NSWLEC 1248 ............................ [5.1660] Newton v Wyong Shire Council (unreported, Land and Environment Court, NSW, McClelland J, 6 September 1983) ........................................... [5.1470]

p

Pease v Sharpe (2007) 158 LGERA 21 .................................................. [3.140]

North Sydney MC v PD Mayoh Pty Ltd (No. 2) (1990) 71 LGRA 222 ................. [3 .180]

PW Rygate & West v Shoalhaven City Council (1996) 91 LGERA 417 .............................................. [5.2630]

North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 67 LGRA 344 .......... [5.410], [5.430], [5.480] Northern Residential Pty Ltd v Newcastle City Council [2009] NSWLEC 10 ................................................ [5.1860] Northern Territory v Alyawarr (2005) 220 ALR 431; [2005] FCAFC 135 ..... [20.550], [20.570]

Northern Territory v Lane (1995) 138 ALR 544 .............................................. [20.340]

North Coast Environment Council Inc v Minister for Resources (1994) 36 ALD 533 ................................................ [2.860]

Parra Holdings Pty Ltd v Minister for Land and Water Conservation (2001) 119 LGERA 231; [2001] NSWLEC 265 ............... [5.1410], [5.1480], [5.1490]

North Sydney Council v Michael Standley & Associates Pry Ltd (1998) 97 LGERA 433 .............. [5.2320], [5.2350], [5.2360], [5.2370], [5.2380]

Nicolaisen v Coal Cliff Collieries Pty Ltd (unreported, Land and Environment Court, 18 June 1984) .............................. [9.1430]

Normans Plant Hire Pty Ltd v South Coast Concrete Crushing and Recycling Pry Ltd (No 2) [2006] NSWLEC 734 ....... [5.2680]

Patane v Minister of Fisheries, NSW Fisheries [2006] NSWADT 50 ............... .. ... [19.480]

Owners Of SP 39204 v Sutherland Shire Council [2003] NSWLEC 255 ..... [5.1520]

Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24; [2008] HCA 29 ........ [19.240], [19.750], [20.560]

Noble v Cowra Shire Council [2003] NSWLEC 178 ................................ [2.440]

Oshlack v Richmond River Council [1998] HCA 11 ......................................... [2.900]

Parramatta City Council v Shell Company of Australia Ltd (1972) 26 LGRA 25 .................................................. [5.150]

Patrick Autocare Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWLEC 687 .... [5.820]

Newton v Great Lakes Council [2013] NSWLEC 1248 ............................ [5.1370]

Noble v Cowra Shire Council [2001] NSWLEC 149 .............. [5.1180], [5.1270]

Onus v Alcoa (1981) 149 CLR 27 ...... [2.830]

PD Mayoh Pty Ltd v Burwood Municipal Council (unreported, Land and Environment Court, NSW, Bignold J, No 40275 of 1989, 11 February 1991) ............................................. [5.420] PDP (Darlinghurst Apartments) Pry Ltd v City of Sydney Council [2005] NSWLEC 41 ................................................ [5.1650] Paino v Woollahra Municipal Council (1990) 71 LGRA 62 .................................. [5.650] Parangool v North Sydney Municipal Council (unreported, Land and Environment Court, 4 May 1982) ................................ [5.1150]

Norvill v Chapman (1995) 133 ALR 226 .............................................. [20.870]

Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231 ..................................... [6.70], [6.200]

Notaras v Waverley Council (2007)161 LGERA 230; [2007] NSWCA 333 ...... [2.490], [3.680], [5.1240], [6.170]

Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1; [1972] HCA 21 ..................................... [5.150], [5.500]

Novara Crescent Pty Ltd v Sutherland Shire Council [2004] NSWLEC 403 ..... [5.1300] 0

Parramatta City Council v Hale (1982) 47 LGRA 319 ......... [2.360], [2.430], [2.490], [2.530], [5.1180], [5.1240], [5.1270], [5.1390]

Oberon Council v Australian Game Meats Ltd [2002] NSWLEC 96 ...................... [9.960]

Parramatta City Council v Peterson (1987) 61 LGRA 286 ................... [5.1670], [5.1690], [5.1910], [5.1970]

Penrith City Council v Waste Management Authority (1990) 71 LGRA 376 ..... [5.340] Penrith Waste Services Pry Ltd v Penrith City Council (1998) 101 LGERA 98 ..... [5.410] Perry Properties Pry Ltd v Ashfield Municipal Council (2000) 110 LGERA 345; [2000] NSWLEC 188 .............................. [5.1470] Perth, Shire of v O'Keefe (1964) 110 CLR 529; [1964] HCA37 ....... [5.170], [5.420], [5.430], [5.480], [5.560] Peter Duffield and Associates Pry Ltd v Canada Bay City Council [2002] NSWLEC 168 ............................... [5.1890], [5.2380] Pickwell v Ku-ring-gai Council [2005] NSWLEC 59 ................ [5.1700], [5.1710] Pimas Group Pry Ltd v Maritime Services Board of NSW (1994) 82 LGERA 205 ................................................ [5.650] Pindimar Bundabah Community Association v Great Lakes Council [2007] NSWLEC 165 .............................................. [19.790] Pittwater Council v Scahill (2009) 165 LGERA 289 ............................... [12.1040] Planning, Minister for v Walker [2008] NSWCA 224 ................. [1.210], [5.1350], [5.1370] , [14.620] Planning, Minister for v Walker (No 2) [2008] NSWCA 334 .................... [2.900], [2.910]

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Plath v Fish [2010] NSWLEC 144 .... (2.670], (12.640] Plath v Rawson (2009) 170 LGERA 253; (2009] NSWLEC 178 .. .. (2.620], (12.600], (12.610] Port MacDonnell Professional Fisherman's Association Inc v South Australia (1989] HCA 49 ...................... ... ........ ...... (19.200] Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning (2005] NSWLEC 426 .. ........................... . (5.1350] Post Investments Pty Ltd v Wilson (1990) 26 NSWLR 598 .................................... (2.70] Power v Pentill House Pty Ltd (1993) 80 LGERA 247 ................................. [5.2500] Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 10; (2008] NSWCA 278 ................................... (9.930], (9.940]

Prosecutor v Marcus Goldberg (1997] NSWLEC 7 ................ .................. (19.720]

Q Queensland v Commonwealth (1989) 86 ALR 519 ················································ (1.470] Queensland Conservation Council Inc v Minister for Environment and Heritage (2003] FCA 1463 ............... ....... ... (17.740] Queensland Conservation Council Inc v Minister for Environment and Heritage (2004) 139 FCR 24; [2004] FCAFC 190 ··· ·························· ··················· [7.500] Quota Corporation Ltd v Leichhardt Municipal Council (1981) 45 LGRA 319 .............. ...... .......................... (5.1940] R

Primary Industries and Energy, Minister for v Austral Fisheries P/L (1993) 30 ALD 783 ················································ (2.460]

R v Bon Jon {unreported, Supreme Court of New South Wales, 16 September 1841, Willis J) .......................................... [20.10]

Prineas v Forestry Commission of NSW (1983) 49 LGRA 402 ....... [6.270], (6.310]

R v Edward Vaughan (unreported, Supreme Court of Western Australia, Court of Criminal Appeal, 18 September 1998) ····························· ·············· (17.930]

Pro-vision Developments Pty Ltd v Ku-ring-gai Municipal Council (2003] NSWLEC 226 ................. ......... ...... (5.950] Professional Fishers Assoc Inc v Minister for Fisheries [2002] NSWCA 145 ..... (19.130], (19 .600]

R v Hickman; Ex parte Fox (1945) 70 CLR 598 ················· ···················· ········· [5 .2640] R v Hunt; Ex Parte Sean Investments Pty Ltd (1979) 180 CLR 322 .... ................. [2.420]

Professional Fishers Assoc Inc v Minister for Fisheries (2002] NSWLEC 15 ...... (19.600]

R v Jack Congo Murrell (1836) 1 Legge Rep 72 ···················· ······························ (20.10]

Progress & Securities Building Pty Ltd v Burwood Council (No 2) (2008] NSWLEC 135 ........ ....... (5.2110], (5.2190], [5.2380]

R v Korsman (1947) 64 WN (NSW) 123 ·············································· (19.160]

Progress & Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236 ............................... (5 .2230], (5.2380]

RCM Constructions Pty Ltd & Maycot Pty Ltd v Ryde City Council (2004] NSWLEC 266 ··· ································ [5.210], [5.410]

Project Blue Sky Inc v Australian Broadcasting Association (1998] HCA 28 ........... (6.360]

Randall Pty Ltd v Willoughby City Council (2004) 137 LGERA 25; (2005] NSWCA 205 ··············· (5.1400], (5 .1410], [5.2380]

Project Venture Developments Pty Ltd v Pittwater Council (2005] NSWCA 108 ·· ··············· ····························· (5.1250]

Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13 ........ [5.1530]

Reid's Farms Pty Ltd v Murray Shire Council [2010] NSWLEC 127 ..... (2.490], (5.2440] Remath Investments No 6 Pty Ltd v Botany Bay Council (No 2) (unreported, Land and Environment Court, 11 December 1996) ........................... ........ .... .... [5.1540] Residents Against Improper Development Inc v Chase Property Investments Pty Ltd (2006) 149 LGERA 360; (2006] NSWCA 323 ..................... (3.180], (5.330], (5.340]

Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106 ........................... [12.1430] Rundle v Tweed Shire Council (1989) 68 LGRA 308 ................................ ..... (5.150] Russo v Burwood Municipal Council (unreported, NSW Court of Appeal, 25 November 1996) ............ ........... .. . [5.1910] Ryding v Kempsey Shire Council [2008] NSWLEC 306 ................................ (9.940]

Reysson Pty Ltd v Roads and Maritime Services (2012) 188 LGERA 252 ............................... [5.2470], [5.2490]

s

Richardson v Forestry Commission (1988) 164 CLR 261 .. .. ............. .. [1.470], [1.480]

SDHA Pty Ltd v Waverley Council (2015] NSWLEC 65 ..... ... ....... ................. (5 .1180]

Richmond River Shire Council v Ramsey (1988) 66 LGRA 210 .................. [5.1670], [5.1970]

St George Building Society v Manly Municipal Council (1982) 3 APA 370 ........... (5 .1700]

Rivers SOS Inc v Minister for Planning (2009] NSWLEC 213 ........... ......... .. .......... (2.390] Robson v Leischke (2008) 72 NSWLR 98; (2008] NSWLEC 152 .................... (2.200] Rose Bay Afloat Pty Ltd v Woollahra Municipal Council (2002] NSWLEC 208 .................. ..... ......................... (5 .670] Rose Bay Marina v Minister for Urban Affairs and Planning [2002] NSWLEC 223 .................................... ............ (5 .660] Rose Consulting Group v Baulkham Hills Shire Council (2003] NSWCA 266 .. ............................................ (5.2000] Rosser v NSW Department of Primary Industries [2008] NSWLEC 109 .............................................. [19.960] Rowlane Investments Pty Ltd v Leichhardt Council (2013) 195 LGERA 9 ..... (5 .2470] Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305 ..................... [5.410], [5.420], [5.430] Rozelle Village Pty Ltd v Leichhardt Municipal Council (2015] NSWLEC132 ................. .............. [5.2170]

St Helen's Smelting Co v Tipping (1865) 11 ER 1483 .. .. .... ... ....... .. ....... .. .......... . [2.180] Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council [2006] NSWLEC 733 ............................. .. [5 .1890], [5.1920] Sandig v Ku-ring-gai Municipal Council (2001] NSWLEC 74 .................... (17.120] Save Little Manly Beach Foreshore Inc v Manly Council (No 2) [2013] NSWLEC 156 ........ ........... ................ [8.190], [8 .350] Sav.e The Ridge Inc v Commonwealth [2006] FCAFC 51 ........ ............................. (2.900] Save the Ridge Inc v Commonwealth [2004] FCA 1167 .... .................................. [7.880] Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1996) 92 LGERA 275 ... ................ (3 .650] Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33 ..... ................ (3.450] Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 .......... [6.270] Schneiders v Queensland [2001] FCA 553 ................................................ (7.830]

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Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 ....... [2.490], [2.500], [5.1240]

Smith v Cnizonom (unreported, Land and Environment Court, 25 March 1982) ........................................... [9.1370]

State Pollution Control Commission v AC Hatrick Chemicals Pty Ltd (1992) 76 LGRA 346 .................. ................. [9 .1260]

Sustainability Environment Water Population and Communities, Minister for v Debona [2010] FCA 1497 ........................... [7.850]

Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333 ..... [5.2350]

Smith v East Elloe Rural District Council [1956] AC 736 ............................. [5.1730]

State Pollution Control Commission v Australian Iron and Steel Ltd (1992) 74 LGRA 387 .................... [9.1450], [9.1470]

Seaside Property v Wyong Shire Council [2004] NSWLEC 600 .................. [5.1250]

Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246 ......... [5.130], [5.480]

Sustainable Fishing and Tourism Inc v Minister for Fisheries [2000] NSWLEC 2 ····································· [19.80], [19.570] Sutherland Shire Council v Heyman (1985) 157 CLR 424 ............................... [14.950]

Seaton v Mosman Municipal Council (1996) 93 LGERA 1 .................................. [8.220]

Smith v Wollondilly Shire Council [2004] NSWLEC 194 .................................. [8.40]

State Pollution Control Commission v Blayney Abattoirs Pty Ltd (1991) 72 LGRA 221 ······························· [9.1210], [9.1360]

Security Storage Pty Ltd v Leichhardt Municipal Council (1997) 93 LGERA 176 .............................................. [5.2230]

Smith vWyong SC (1984) 53 LGRA 176 .............................................. [5.2460]

State Pollution Control Commission v Blue Mountains City Council (1991) 72 LGRA 345 ·············································· [9.1190]

Smith v Wyong Shire Council (2003) 132 LGERA 148; [2003] NSWCA 322 ................................. [3.330], [5.1170]

State Pollution Control Commission v Broken Hill Pty Co Ltd [No 1] (1991) 74 LGRA 351 ·············································· [9.1440]

Swadling v Sutherland Shire Council (1994) 82 LGERA431 ............................ [5.1730]

Smith v Wyong Shire Council [2008] NSWLEC 115 .............................. [5.2470]

State Pollution Control Commission v Caltex Refining Pty Ltd [1990] NSWLEC 89 ················································ [9.1140]

SY Holdings Pty Ltd v Warringah Shire Council (unreported, 15 April 1981) ··········································· [5.1650]

State Pollution Control Commission v NSW Sugar Milling Co-operative Ltd (1991) 73 LGRA 86 ....... [9.1170], [9.1180], [9.1210]

Sydney Catchment Authority v Bailey (No 2) [2007] NSWLEC 191 .................... [5.260]

Segal v Waverley Council (2005) 64 NSWLR 177 ............................... ............... [5.1260] Severn Shire Council v Water Resources Commission (1982) 47 LGRA 257 ................................................ [6.210] Shannongrove Pty Ltd v Environment Protection Authority [2013] NSWCCA 179 .............................................. [9 .2500] Sharples v Minister for Local Government [2008] NSWLEC 328 .................. [5.1180] Shellharbour Municipal Council v Rovili Pty Ltd (1989) 68 LGRA 231 .............. [5.650] Shoalhaven City Council v Lovell (1996) 136 FLR 58 ........................................ [5.1480] Shoalhaven City Council v South Coast Concrete Crushing & Recycling Pty Ltd [2009] NSWLEC 197 ....... [5.420], [5.430] Sidhom v Robinson on behalf of the Department of Environment and Climate Change [2007] NSWLEC 408 ...... [19.870] Silverton v North Sydney Municipal Council (unreported, Land and Environment Court, 23 July 1982) ............................... [5.1300] Simpson v Bradley [1991] NSWLEC 88 ················································ [11.500] Sisic v Rockdale City Council [2007] NSWLEC 687 .............................. [5.1120] Skouteris v Auburn City Council [2005] NSWLEC 207 .............................. [5.1240]

Soldat v Blue Mountains City Council [1998] NSWLEC 54 ................................ [19.680] Somerville v Dalby (1990) 69 LGRA 422 ................................. [5.930], [5.1240] South East Forest Rescue Inc v Bega Valley Shire Council and South East Fibre Experts Pty Ltd [2011] NSWLEC 250 .......... [8.40] South Sydney City Council v Houlakis (1996) 92 LGERA 401 .............................. [5.420] Spencer v Commonwealth [2008] FCA 1256 .............................................. [1.400] Spencer v Commonwealth (2009) 174 FCR 398; [2009] FCAFC 38 .................. [1.400] Spencer v Commonwealth (2010) 241 CLR 118; [201 OJ HCA 28 ...................... [1.400]

State Rail Authority of New South Wales v Hunter Water Board (1992) 78 LGERA 343; 65 A Crim R 101 .... [2.630], [9.1440] Steedman v Baulkham Hills Shire Council (No 2) (1993) 80 LGERA 323 ............. [5.230], [5.440], [5.540] Steelbond (Sydney) Pty Ltd v Marrickville Municipal Council (1994) 82 LGERA 192 ·············································· [5.2420] Stockland (Constructors) Pty Ltd v Shellharbour Council [1996] NSWLEC 123 ··· ··········································· [5.1920]

Spencer v Commonwealth [2015] FCA 754 .................................. .............. [1.400]

Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 .... [5.1270], [5.1310], [5.1320]

Squadron Pty Ltd AFT Garrison Unity Trust v Wyong Shire Council [2007] NSWLEC 336 .............................................. [5.1650]

Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 ................. [3.180]

Stanton Dahl Architects v Penrith City Council [2009] NSWLEC 1204 ............................................ [17.640] Starray Pty Ltd v Sydney City Council [2002] NSWLEC 48 .................................. [5.520]

Stromness Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 587 ...... [5.470], [5.1250], [5.1260] Sumar Produce Pty Ltd v Griffith City Council [2000] NSWLEC 72; [2000] NSWLEC 104 ·············································· [9.1010]

Sutherland Shire Council v Nader [2007] NSWLEC 363 .............................. [5.2670] Sutherland Shire Council v Pedy Concrete Co Pty Ltd (1992) LGRA 333 ........... [9.1880]

Sydney City Council v Building Owners' and Managers' Association of Australia Ltd (1985) 55 LGRA 444 ..................... [2.880] Sydney City Council v Claude Neon Ltd (1989) 67 LGERA 181 ................... [5.650] Sydney City Council v Ke-Su Investments Pty Ltd (No 2) (1983) 51 LGRA 186 ················································ [5.440] Sydney Council, City of v Waldorf Apartments Hotel Sydney Pty Ltd [2008] NSWLEC 97 ................................ [5.2540] Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA404 ............. [5.1510], [5.1520]

T Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd (2007) 161 LGERA 1; [2007] NSWLEC 59 ................ [5.1560], [10.440] Tasmanian Conservation Trust v Minister for Resources (1995) 37 ALD 73 ......... [2.870]

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Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806 ....... [2.960]

Trenwith v Sutherland Shire Council [2005] NSWLEC 143 .............................. [5.1120]

Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6 ........................ [5.1120]

Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; 146 LG ERA 1 O; [2006] NSWLEC 133 ..... [1.210], [l.220], [1.230], [5.1250], [5.1350], [5.1470], [5.1480], [8.40]

Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [2008] NSWCA 356 .................................. [2.390]

Vanmeld Pty Ltd v Fairfield City Council (2000)106 LGERA454 .................. [3.140]

u

Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 73 LGRA 366 ....... [5.410], [5.500]

Tenacity Consulting v Warringah Council [2004] NSWLEC 140 .................. [5.1250] Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289 .................... ........... [5.1300], [5.1480] Tesco Supermarkets Ltd v Nattrass [1972] AC 153 ....... ....................................... [9.1530] Teys Australia Southern Pty Ltd v Burns (2015) 206 LGERA 186 ............... [5.1180] Thaina Town v City of Sydney [2006] NSWLEC 624 ................................ [9.960]

Udy v Hornsby Shire Council [2007] NSWLEC 242 ................................ [9.960]

Veloshin v Randwick City Council [2007] NSWLEC 428 .............................. [5.1250]

Ulan Coal Mines v Minister for Mineral Resources (2008) 161 LGERA 391; [2008] NSWCA 174 ................................ [18.350]

Venus Enterprises v Parramatta City Council (1981) 43 LGRA 67 ..................... [5.1420]

Urban Affairs and Planning, Minister for v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 .......... [3.380], [3.600], [3.650]

w

Tickner v Chapman (1995) 57 FCR 451 ················································ [2.420] Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715; 75 LGRA 71 .......... [2.620], [9.1430], [9.1470]

VAW (Kurri Kurri) Pty Ltd v Scientific Committee (2003) 58 NSWLR 631; 128 LGERA 419; [2003] NSWCA 297 .................... .......................... [12.4 70]

Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 .... [6.200], [6.220], [12.370], [12.1080]

Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 ......... ................ ......... [5.2350]

Toomelah Boggabilla Local Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs [1996] FCA 924 ......................................... ..... [20.860] Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 104 LGERA 133 ............................ [6.320] Transport Infrastructure Development Corp v Parramatta City Council (2005) 143 LGERA 415 ..... .............................. [8.350] Trehy v Gosford City Council (1995) 87 LGERA 262 ................. [5.1960], [5.199.0], [5.2000]

Vinson v Randwick Council [2005] NSWLEC 142 .............................................. [5.1250]

V

VAW (Kurri Kurri) Pty Ltd v Scientific Committee (2002) 122 LGERA 231; [2002] NSWLEC 60 .................... [12.470]

Toadolla Co Pty Ltd v Dumaresq Shire Council (1992) 78 LGERA 261 ............................... [5.1940], [5.2230]

Victoria v Commonwealth (1996) 138 ALR 129 ................................................ [1.470]

Valhalla Cinemas Pty Ltd v Leichhardt Municipal Council (1986) 60 LGRA 240 ................... ........................... [5.2320]

WRF Property Pty Ltd v Armidale Dumaresq Council [2003] NSWLEC 223 ..... [5.1540]

Warren v Electricity Commission of NSW (unreported, Land and Environment Court, 31 October 1990) ............ [2.490], [6.280], [10.430] Warringah Council v Edmondson [2001] NSWCA 1 ...................................... [8.300] Warringah Council v Swain [2010] NSWLEC 68 ....................................... [5.90], [5.230] Warringah Shire Council v May (1979) 38 LGRA 424 ..................................... [5.150] Warringah Shire Council v Raffles (1978) 38 LGRA 306 ..................................... [5.170] Warringah Shire Council v Sedevcic (1987) 63 LGRA 361 ........ [2.700], [5.410], [5.2670] Waterhouse v Minister for Arts (1993) 43 FCR 175 ...................................... [17.920] Watpac Construction (NSW) Pty Ltd v Council of the City of Sydney [2014] NSWLEC 163 ................................ [8.220]

Walker v Minister for Planning [2007] NSWLEC 741 ........ ...................... [5.1370]

Waugh Hotel Management Pty Ltd v Marrickville Council [2009] NSWCA 390 .............................................. [5.1420]

Walker v North Sydney Council (2002) 110 LGERA 397 ................................... [3.140]

Waverley Council v C M Hairis Architects [2002] NSWLEC 180 .................. [5.2410]

Walley v Western Australia (1996) 67 FCR 366 .............................................. [20.430]

Waverley Municipal Council v Attorney-General (1979) 40 LGRA 419 ················································ [8.270]

Wallis & Moore Pty Ltd v Sutherland Shire Council [2005] NSWLEC 397 ..... [5.2020]

Valiant Timber & Hardware Co Pty Ltd v Blacktown City Council [2005] NSWLEC 747 .............................................. [5.1680]

Wallis & Moore Pty Ltd v Sutherland Shire Council [2006] NSWLEC 713 ..... [5.1250]

Vammeld Pty Ltd v Fairfield City Council [1999] 46 NSWLR 78 .................... [2.390]

Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255 ................................... [3.140], [6.170]

Van Eden v Minister for Fisheries [2002] NSWADT 245 ............................. [19.730]

Ward v Northern Territory [2002] FCA 171 .................. .......................... .. [20.530]

Van Eden v State of NSW [2008] NSWSC 629 .............................................. [19.620] Van Son v Forestry Commission (1995) 86 LGERA 108 ...... ............................ . [2.190]

Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 ................. .............. [2.420], [12.1350]

Vanmeld Pty Ltd v Fairfield City Council (1992) 75 LGRA 374 ....... [l.280], [5.410]

Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23 .................. [5.420], [5.2540]

Waverley Municipal Council v PE Bakers Pty Ltd (1985) 54 LGRA 309 ............ [5.1670] Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 ................... [2.440], [5.1180], [5.1190], [5.1200], [5.1530], [5.1540], [5.1560] Wehbe v Pittwater Council ............... [3.400], [5.130], [5.480] Western Australia v Commonwealth (1995) 183 CLR 373 ............................... [20.270] Western Australia v Minister for Aboriginal and Torres Strait Islander Affairs (1995) 37 ALD 633 ...................... [20.850], [20.870] Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 ............ [20.270], [20.570]

999

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Table of Cases

Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004) HCA 63 ................................. [5.1680), [5.1690)

Wilson Parking 1992 Pty Ltd v Council of the City of Sydney (2014) 201 LGERA 232 ................................................ [3.180)

Western Stores Ltd v Orange City Council (1971) 23 LGRA 191 ................... [5.1240)

Windy Dropdown Pty Ltd v Warringah Council (2000) NSWLEC 240 ..... [5.2420)

Western Sydney Conservation Alliance v Penrith City Council [2011) NSWLEC 244 ····························· [12.530), [12.1110)

Wingecarribee Shire Council v Concrite Quarries Pty Ltd [2001) NSWLEC 97 ................................................ [5.1510)

Westfield Management Ltd v Perpetual Trustee Company Ltd [2006) NSWCA 245 ······························· [5.1680), [5.1710]

Winn v Director-General of National Parks and Wildlife [2001) NSWCA 17 .... [5.510)

Westfield Management Pty Ltd v Gazcorp Pty Ltd (2004) 135 LGERA220 .......... [3.150) Wiggins v Pittwater Council [2006) NSWLEC 543 .............................................. [5.1310) Wik Peoples v Queensland (1996) 187 CLR 1 ................... [20.230), [20.350), [20.360) Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment and Heritage (2006) 232 ALR 510; [2006) FCA 736 ·············································· [10.310) Wilkie v Blacktown City Council [2002) NSWCA 284 ................................ [5.2510) Williams v Blue Mountains City Council [2001) NSWLEC 73 ....... [5.150), [5.2600) Williams v Pardoe [2003) NSWLEC 363 ················································ [2.950)

'

Willoughby City Council v Dasco Design and Construction Pty Ltd [2000] NSWLEC 257 ·············································· [5.2420] Willoughby City Council v Minister Administering the National Parks and Wildlife Act (1992) 78 LGERA '19 ·················································· [5.200] Willoughby Municipal Council v Huxley Homes Pty Ltd [1989] NSWLEC 135 .............................................. [5.1650) Wilson v Anderson (2002) 213 CLR 401 ·············································· [20.260) Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1; [1996) HCA 18 ............................ [20.870]

Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; 136 LGERA288; (2004) NSWCA 422 ........ [3.130), (3.140), (3.610), [5.170], [5.230], (15.840), [5.1220), (5.2650) Worimi (aka Gary Dates) v Worimi Local Aboriginal Land Council (2010) FCAFC 3 .................................................. [20.650)

y

Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 ..... [3.400] Wongatha People v State of Western Australia (No 9) (2007) 238 ALR 1 ............ [20.650) Woodhouse v Wyong Shire Council (No 2) [2006) NSWLEC 83 ...................... [5.990) Woodridge v Minister for Land & Water Conservation (NSW) (2002) 122 FCR 190; [2002) FCA 1109 ......................... [20.700) Woodward v Cleary Brothers (Bombo) Pty Ltd (1984) 54 LGRA 409 ........... [9.1430), [9.1440) Woolcott Group Pty Ltd v Rostry Pty Ltd [2015) NSWLEC 46 .................... [5.1010) Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138; [1973) HCA 65 ...................... [5.450) Woollahra Municipal Council v Carr (1985) 62 LGRA 263 ................................ [3.180] Woollahra Municipal Council v D' Albora Marinas Pty Ltd (1992) 75 LGRA 46 ················································ [5.2410) Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710 ..................... [4.420), [4.440), [5.200) Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123 ................................................ [5.450) Woolworths Ltd v Bathurst City Council (1987) 63 LGRA 55 ..................... [5.2620) Woolworths Ltd v Campbells Cash & Carry Pty Ltd (1996) 92 LGERA 244 .... [5.1520)

Yarmirr v Northern Territory [2001) ALMD 3 .................................................. (20.560] Yates Security Services Pty Ltd v Keating (1990) 77 LGRA 165 ..................... (2.820]

Yoren, In re [2004] FCA 916 ............ (20.680)

z Zaymill Pty Ltd and Maksim Holdings Pty Ltd v Ryde City Council (2009] NSWLEC 86 ................................................ (5.2470] Zhang v Canterbury City Council (2001) 51 NSWLR 589; 115 LGERA 373; (2001] NSWCA 167 ...... (2.420](3.680), [5.1240), [5.1310), [5.1560]

1001

Table of Statutes COMMONWEALTH Aboriginal Land Rights (Northern Territory) Act 1976: [20.40], [20.90], [20.560] Aboriginal and Torres Strait Islander Heritage Protection Act 1984: [20.840], [20.870] s 3(1): [20.840] s 3(2): (20.840] s 7(1): [20.840] s 7(3): [20.840] s 9: [20.840], (20.860] s 10: [20.840] s 10(1): [20.850] s 10(3)(6): [20.850] s 10(4): [20.850] s 11: [20.840] s 12: [20 ..840] s 13(2): [20.840] s 13(3): [20.850} s 13(5): [20.840] s 14(1): [20.860] s 18: [20.860] Acts Interpretation Act 1901 s 15C: [7.940] Administrative Decisions (Judicial Review) Act 1977: [2.850] s 5(1): [2.850) Agricultural and Veterinary Chemicals (Administration) Act 1992: [11.550] ss 6 - 7: [11.560] s 7(1A)(a): [11.570] s 7(1A)(b): [11.570] s 17: [11.560] s 69H: [11.700] Pt 3: [11.560]

s 7(1A)(f): [11.570] s 7(1A)(k): [11.570] s 7(2): [11. 760] s 8: [11.760] s 8(2): [11. 760] s 8H: [11.670] s 8H(2): [11.670] s 8J: [11.670] s 10: [11.570] s 10(1): [11.750] s 10(2): [11.750] s 10(3): [11.750] s 11: [11.750] s 11(1): [11.750) s 11(2): [11.750] s 11(3): [11.750] s 11A(2): [11.750] s 12: [11. 730] s 12(1): [11.660) s 12(3)(6): [11.660] s 13: [11. 730] s 13(1): [11.660] s 13(3)(6): [11.660] s 15(1): [11.740] s 15(3): [11.740] s 32(1): [11.680] s 32(2A): [11.680] ss 36 - 38: [11.650] s 47A: [11.670] s 47C: [11.670] s 108: [11.570] s 110: [11.570] ss 120 - 128: [11.590) s 121: [11.590] s 145F: [11.690] s 167: [11.650] s 174: [11.600] Pt 2: [11.620), [11.650] Pt 4: [11.590] Pt 7: [11.590], [11.730], [11.740] Div 2: [11.590] Div 5: [11.650]

Agricultural and Veterinary Chemicals (Administration) Regulations 1995: [11.580] Sch 1: [11.580]

Australian Heritage Commission Act 1975: [13.20], [17.850]

Agricultural and Veterinary Chemicals Code Act 1994: [11.550] s 6: [11.570], [11.590] s 7: [11.760] s 7(1A)(c): [11.570] s 7(1A)(d): [11.570]

Australian Heritage Council Act 2003: [17.710], [17.720], [17.770], [17.850] s 5: [17.720] s 7(3): [17.720] s 21: [17.850] s 22(5): [17.850]

s 24AA: [17.850] Australian National Registry of Emissions Units Act 2011: [10.230] Broadcasting and Television Act 1942: [1.530) Building Energy Efficiency Disclosure Act 2010: [10.390] s SA: [10.390] s 11: [10.390] s 13: [10.390] s 17: [10.390] Carbon Credits (Carbon Farming Initiative) Act 2011: [10.140], [10.170], [10.180], [10.190], [10.210], [10.220], [10.230], [10.240], [10.260], [10.270) s 5: [10.220], [10.260] s 11(2): [10.250] s 12: [10.250] s 15(3): [10.250] s 16: [10.250] s 16(2): [10.250] s 18(2): [10.250] s 20B: [10.260] s 20C(2): [10.260] s 20F: [10.260] s 20G: [10.260] s 22: [10.160) s 27(4): [10.160] s 27(4)(e): [10.220] s 27(4A)(b): [10.200] s 27(4B): [10.190] s 27(4C): [10.190] s 69(2): [10.250] s 69(3): [10.250] s 76(1): [10.250] s 114(10): [10.170] s 123A(5): [10.170] s 123D: [10.170] s 133: [10.170] s 163: [10.260] s 163A: [10.260] s 274A: [10.180] Pt 10: [10.220] Carbon Credits (Carbon Farming Initiative) Regulations 2011: [10.240] cl 3.36: [10.240]

1004

The Environmental Law Handbook Carbon Credits (Carbon Farming Initiative) Rule 2015: [10.210], [10.230], [10.250] cl 10: [10.260] cl 20A: (10.160] cl 21(2): (10.210] cl 61(1)(a): (10.230] ell 6l(l)(f) to (i): (10.230] cl 73: (10.250] Pt 4: [10.230] Carbon Farming Initiative Amendment Act 2014: [10.140], [10.270] Clean Energy Act 2011: [10.40], [10.2 70], [10.310] s 14: [10.40] Clean Energy (Consequential Amendments) Act 2011: [10.40] Clean Energy Regulator Act 2011: [10.40] Climate Change Authority Act 2011: [10.40] Coastal Protection Act 1979 Pt 3: [14.730] Coastal Waters (State Powers) Act 1980 s 4(2): [9.2140] s 5: (19.100] s 5(a): [9.2140] s 7(c): [9.2140] Coastal Waters (State Title) Act 1980: [12.320] Commonwealth of Australia Constitution Act 1900 s 51: (1.450] s 5l(i): [1.460], (9.40] s 51(ii): [1.500], [9.40] s 51(xx): [1.490], [9.40], (10.40] s 5l(xxvi): [20.30] s 5l(xxix): [1.470], [9.40], (9.130], (10.40],[12.90] s 51(xxxi): [1.370], [1.380], (1.390], (1.400], [15.810], [17.920] s 51(xxxix): [1.510] s 77: [7.940] s 92: [1.460] s 96: (1.400], [1.570] s 100: [15.70] s 109: [1.520], [9.40] s 127: [20.30]

Corporations Act 2001: [10.100], [17.690) s SF: [13.150) Crimes Act 1914

Table of Statutes s 4AA: [2.680], [9.480], [10.130] s 13: [7.750] Criminal Code 1995 Div 137: (10.130] Crown Lands Act 1989 s 3(1): [18.40] s 171(1): [18.40] Endangered Species Protection Act 1992: (13.20] Environment Protection (Sea Dumping) Act 1981: [7.400], [9.2330], [9.2340], (9.2360] s 5: [9 .2340] s 7: (9.2340] s 9: (9.2360] ss lOA to E: (9.2350] s 15(3): [9.2370] s 16: (9.2380] s 17: [9.2380] s 18(4): [9.2350] s 19(3): [9.2350] s 19(4): (9.2350] s 19(5): [9.2350] s 19(9): [9.2350] s 20: (9.2350] s 21: (9.2350] s 33: (9.2380] Environment Protection and Biodiversity Conservation Act 1999: [1.180], [1.200]., (1.280], [1.440], (1.450], [1.480], [1.510], [1.550], [2.710], (2 .880], [4.630], [7.10], [7.20], [7.40], [7.160], (7.170], [7.290], [7.300], [7.330], [7.340], [7.360], (7.370], [7.380], [7.400], [7.450], [7.490], [7.500], [7.510], [7.520], [7.630], (7.650], [7.690], [7. 700], (7. 710], (7. 720], (7.750], [7.790], [7.810], [7.870], [7.920], [7.930], (7.940], [7.970], (9.2350], [10.310], [12.10], [12.90], (12.120], [12. 130], [12.150], (12.160], (12.200], (12.210], [12.220], [12.230], [12.240], (12.250], [12.260], (12.290], [12.300], (12.310], [12.320], [12.330], [12.350], [12.410], (12.850], (12.880], [12.1260], [12.131 OJ, [12.1500], [12.1600], (12.1660], [13.20], [13.40], [13.60], (13.70], [13.80], [13.90], [17.40], (17.710], [19.610] s 3(1): [17.710] s 3(1)(e}: (12.90] s 3(2) : (17. 710] s 3A: (1.200], [7.690] s 5(5): [7.270]

s 12: [7.60], [17. 730], [17. 740] ss 12 to 14: [7.50] s 13: [4.630] s 14: [4.630], [17.730] s 14(1)(a): [17.730] s 14(1)(6): (17.730] s 14(2): [17.730] s 14(3): [17.730] s 15A: [7.60] s 15B: [7.110], (7.130], [17.800] s 15C: [7.130], (17.800] s 16: [7.160] s 17: [4.630], [7.160] s 17A: [4.630], [7.160] s 17B: [7.160] s 18: (2.710], [7.220], [12.160], (12.190], [12.280], (13.60] s 18(3): [7.380] s 18A: [2.710], [7.220], [12.160], (12.190], (12.280] s 20: [7.240] s 20A: [7.240] s 21: [7.250] s 22: [7.250] s 22A: [7.250] s 23: [12.320] s 23(1): [7.270] s 23(2): [7.270] s 23(3): [7.270] s 23(5): [7.270] s 23(6): [7.270] s 24: [7.270], (12.320] s 24A: [7.270] s 24B: [7.280] s 24C: [7.280] s 24D: [15.130] ss 26 - 27 A: [17.830] s 26(1): (7.310] s 26(2): [7.310] s 27A(l): [7.310] s 27A(2): [7.310] s 27A(3): [7.310] s 27A(4}: [7.310] s 28: (1.510], [7.320], [17.830] s 28(3): [7.420] s 29: [7.340] s 32: (7.350] s 33: [7.350], [7.660] s 38: (13.40], [13.60], [13.70], [13 .80], (13.90] s 40: [13.40] s 42: (13 .80] s 43: [7.280], (7.390] s 43A: [7.450] s 43B: [7.450] s 46: [7.340] s 47: [7.630] s 67: [7.20) s 68: (7.20], [7.270], [7.760] s 68(1): [7.470] s 69: [7.270], [7.470], [7.760]

Environment Protection and Biodiversity Conservation Act 1999- cont s 70: [7.470], [7.760] s 71: (7.270], [7.470], [7.760] s 74(3): (7.770] s 74A: (7.530], (7.540] s 75: [7.20] s 75(2B): [13.80] s 77A: [7.440] s 87(3): (7.770] ss 92 to 95: [7.590] s 95: [7.770] ss 96 to 100: [7.600] s 98: [7.770] ss 101 to 105: [7.610] s 103: [7.770] ss 106 to 129: [7.620] s 108: [7.770] s 110: [7.770] s 131AB: [7.690], (12.250] s 133: [7.20] s 134: [7.740] s 136(1): (7.690] s 136(2): [7.690] s 136(4): [7.690] s 136(5): [7.710] s 137: [7.720] s 137A: [7.720] s 138: (7.720] s 139: [7.720], [7.730] s 139(1)(6): [12.160], (12 .190] s 140: (7.720] s 140A: (7.720] s 143: [7.910] s 144: [7.910] s 146: [7.650] s 147: [7.650] s 153: [7.660] s 158: [7.410] s 160: [7.330] ss 160(2)(a) to (c): [7.400] s 160(2)(d}: [7.400] s 176: [7.350] s 178: [12.150] s 179: [12.150] s 179(2): [12.150] s 179(3): [12.150] s 179(4): (12.150] s 179(5): (12.150] s 179(6): (12.150] s 180: (12.150] s 181: [7.850], [12.150] s 18l(la}: (12.150] s 181(16): (12.150] s 181(1c}: (12.150] s 182: [12.150] s 183: [12.180] s 186: (12.150], [12.210] s 187: [12.150], [12.210] s 188: [12.180]

s 188(3): [12.180] s 188(4): [12.180] s 189(1B)(c): [12.160] ss 194A - 194T: (12.200] s 194Q: [12.200] s 195: [12.280] s 196: (12.220] ss 196 - 196E: [12.280] s 197: (12.280] s 198: [12.280] s 200: (12.280] s 201: (12.280] s 206A: [12.280] s 207 A: [7.230], [12.220], (12.270] s 207B: (7,230], [12.270] s 207C: (12.270] s 208A: [12.220] s 209: (12.300] s 210: (12.300] ss 211 - 222: (12.300] ss 229 - 232: (12.320] s 238: [12.320] s 243A: [12.320] s 248: (12.310] s 253: (12.310] ss 254 - 255: [12.310] s 255: (12.320] s 258: (12.310] s 263A: [12.310] s 268: (12.160], (12.190] s 269: [12.160], [12.190] s 269(2): [12.160] s 269A(3): [12.160] s 269A(5): [12.160] s 269AA: [12.160] s 269AA(3): [12.160] s 270: [12.160] s 270A: (12 .190] s 271: [12.190] s 274: (12.190] s 275: [12.190] s 285: [12.340] s 285(6) : [12.340] s 290: (12.340] s 297: (12.340] s 299: (12.340] s 303BA: (12.90], [12.350] ss 303BA - 303GY: (12 .350] s 303DA: [12.350] s 303DB: [12.350] s 303ER: [12.350] s 304: [12.140], (12.1660] ss 304 to 312: [2.140] s 305(1A): (12.1660] s 307: (12.1660] s 308(3): (12.1660] s 308(4): [12.1660] s 314(2): (4.630] s 316: (17.750] s 318: (17.750]

s 319: [17.750] s 320: [4.630], [17.750] s 321: [4.630], [17.750] s 323: (4.630], (7.80], [17.750] s 324: [4.630], [17.750] s 324C: [7.110] s 324C(2): [17.760] s 324D: [17. 760] s 324G: (17.770] s 324H: [17.770] s 324]: (17.770] s 324JA: (17.770] s 324JB: [17.770] s 324JC: [17.770] s 324JD: [17. 770] s 324JE: [17.770] s 324JF: (17.770] s 324JH: [17.770] s 324JI: [17.770] s 324]]: [7.110], (17.770] s 324JL: [17.790] s 324JL(3): [17.790] s 324JL(4): [17.790] s 324JM: [17. 790] s 324JN: (17. 790] s 324JP: (17.790] s 324JQ: [17. 790] s 324JQ(2): (17.790] s 324JQ(4): (17.790] s 324L: [17. 780] s 324M: [17.780] s 324P: (17. 770] s 324S(l): (17.810] s 3245(2): (17.810] s 3245(4)(6): [17.810] s 324U: [17.810] s 324U(2): (17.810] s 324W: [17.810] s 324X: [17.810] s 324Y: [17.810] s 324ZB: [17.810] s 326(2): [4.630] s 332: [4.630] s 333: [4.630] s 335: [4.630] s 336: [4.630] ss 341A- 341R: (17.820] s 341C: [17.820] s 341D: (17.820] s 341JA: [17.820] s 34 lJB: [17.820] s 341JC: (17.820] s 34 lJF: [17.820] s 342]0: [17.790] s 341S(l}: (17.840] s 3415(4)(6): (17.840] s 3415(6}: (17.840] s 341T: (17.840] s 341V: (17.840] s 341X: [17.840] s 341Y: (17.840]

1005

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The Environmental Law Handbook

Environment Protection and Biodiversity Conservation Act 1999-cont s 34 lZ: [17.840] s 341ZA: (17.840] s 34 lZB: (17.840] s 34 lZC: (17.800], (17.830] ss 343 to 352: [4.620] s 346(1)(e): [4.620] s 348(1): [4.620] s 354: [4,620] s 354(1): [7.930] s 356: (4.620] s 390E: (4.620] s 390K: (17.950] s 390M: (17.950] s 391: (7.550] s 391A: [17.850] s 458: [7.910] s 475: [7.380], [7.780] s 475(3): [7.780] s 481: [7.920] s 481(3): [7.920] s 486A: (2. 710] s 486C: (2.710] s 486DA: [7.960] s 486DA(2): [7.970] s 487: [7.790] ss 489 to 491: [7.480] s 502: (12.210] s 503: (12 .210] s 505C: (12 .250] s 505D: (12.250] s 523: (7.20] s 525: (12.160], [12.190], (12.270], (12 .280] s 527E: (10.310] s 527E(l): [7.500] s 527E(2): (7.500] s 528 : [1.180], [7.470], [12.150], (17.830] Ch 2: [12.230] Ch 2, Pt 3: (12.230] Ch 2, Pt 3, Div 1: [7.20] Ch 3: [7.630] Pt 3: [7.20], [7.960], (10.310], (13.60], (14.660] Pt 4, Div 4: (7.370] Pt 10: [7.650], [19.610] Pt 10, Div 2: (7.660] Pt 13: (7.190], (12.350] Pt 13A: (12.90], (12.350], (19.610] Pt 15: (4.610], [17.770] Pt 15, Div IA, su6div BB: (7.900] Pt 15, Div 3A, su6div BB: (7.900] Pt 17: (12.90] Div 4: (4.620]

Table of Statutes

Environment Protection and Biodiversity Conservation Regulations 2000: [4.620], (7.10], (12.120] reg 2.01: (7.250] reg 2.03: (7.260] reg 3.03: (7.90] reg 4.03: [7.480] reg 6.01: (7.400] reg 7.01: (12.150] reg 7.02: (12 .150] reg 10.01: [7.80], (7.90], (17.750] reg 10.0lA: [7.110], (17. 760] reg 10.0lB: (17. 770] reg 10.0lC: (17.810] reg 10.0lE: (17.810] reg 10.02: [7.180] reg 10.03A: (17.820] reg 10.03C: [17.840] reg 10.03D: (17.840] reg 10.03E: (17.840] reg 10.03F: (17.840] reg 10.03H: (4.620] reg 16.05A: (17. 770] Sch 2: (7.480], (7.560] Sch 3, cl 28: [7.430] Sch 5: [4.630], [7.80], (17.750] Sch 5A: (17.810] Sch 5B: (17.810] Sch 5, cl 3: [7.90] Sch 5, cl 3.04: [7.90] Sch 6: (4.630], [7.180] Sch 7B: (17.840] Sch 7C: (17.840] Sch 8: [4.620]

Hazardous Waste (Regulation of Exports and Imports) Act 1989: [7.400], (9.130]

Federal Court of Australia Act 1976 s 31A: (1.400]

Hindmarsh Island Bridge Act 1997: (20.870]

Fisheries Management Act 1991: (7.660], (19.250] s 3: (19.70] s 3(1)(6): (19.60] s 76: (19.110]

Historic Shipwrecks Act 1976: [17.940] s 2(1): (17.940] s 2(3 ): [17.940] s 4A(l): (17.940] ss 4A(3) - (5) : (17.940] s 4A(6): (17.940] ss 4A(8) - (9): (17.940] s 5: (17.940] s 6: (17.940] s 6(5): (17.940] s 7: [17.940] s 9: (17.440] s 12: (17.940] s 13: (17.940] s 14: (17.940] s 15: [17.940] s 17: (17.440]

Food Standards Australia New Zealand Act 1991: (9.120] Foreign Acquisitions and Takeovers Act 1975: (2.820] Gene Technology Act 2000: (11.1090], (11.1100], (11.1110], (11.1130] s 5: (11.1090] s 10: (11.1090] s 27: [11.1100] s 30: (11.1100] s 32: (11.1110] s 34: (11.1110] s 40: (11.1110] s 47(1): (11.1110]

s 47(2): (11.1110] s 47(3): (11.1110] s 50: [11.1110] s 52: (11.1130] s 55: [11.1110] s 56: (11.1130] ss 61 - 65: (11.1110] s 68: (11.1110] s 79: [11.1120] s 138: (11.1110] s 139: (11.1110] Pt 3: [11.1100] Pt 4, Div 2: (11.1090] Pt SA: (11.1110] Pt 6: (11.1110] Pt 6, Div 3: (11.1120] Pt 8: [11.1100] Pt 2, Div Pt 2, 4: (11.1090] Gene Technology Regulations 2001: (11.1090], [11.1110] cl 6: (11.1110] Pt 3, Div 2: (11.1110] Pt 4: (11.1100] Pt 5: (11.1100] Sch 2, Pt 1: (11.1110] Great Barrier Reef Marine Park Act 1975: (7.280], [7.290], [7.390] Greenhouse and Energy Minimum Standards Act 2012: (10.380] s 9: (10.380] Pt 2, Div 3: (10.380]

Historic Shipwrecks Regulations 1978 reg 4: (17.940]

Income Tax Assessment Act 1997: (17.540] s 30.15: (17.540] s 30.55: (17.540] ss 30.250 - 285: (17.540] ss 30.246 - 30.249D: [17.540] s 104.35: (17.540] s 104.4 7: [17.540] Pt 3-45, Div 394: (10.240] Industrial Chemicals (Notification and Assessment) Act 1989: (9.130], (9.270] s 3(a): [9.140] s 5: (9.140] s 11: (9.150] s 14(1): (9 .210] s 15: (9.150] s 15AA: [9.160] ss 15AA to 15AB: (9.160] s 16: [9.150] s 19: (9 .150] s 21(1): (9.160] s 21(1A): [9.160] s 21(2)(a): (9.160] s 21(2)(6): (9.160] s 21(2)(c): (9.160] s 21(2)(d): [9.160] ss 21(3) to (6) : [9.160] ss 21A to 21P: (9.160] s 21Q: (9 .160] s 21U: [9.160] s 21W: (9.160] ss 22A to 220: (9 .160] s 23: (9.180] s 23A: [9.180] s 24: [9.180] s 28 : (9.180] s 30: (9.160] s 32: (9.170] s 33: [9.190] ss 33A to 33B: (9.180] s 34: [9.200] s 37: (9.190] s 38: (9 .190] s 38(5): (9.190] s 38(5)(c): [9.200] s 39(1): (9.190] s 40: [9.200] s 48: (9.230] s 48(2)(a): [9.230] s 50: [9.230] s 50A: (9.230] s 50B: (9 .230] s 51: [9.230] s 51(2)(6): (9.230] s 51(3): (9.240] s 51(5): (9 .240] s 56: (9.230] s 57(2): (9 .230] s 58: (9.240] s 58(8): (9 .240]

s 60B: (9.250] s 60C: (9.250] s 60F: [9.250] s 61: (9.260] s 62: (9.250] s 64(1): (9.220] s 64(2): (9.220] s 65(1): (9.220] s 65(2): (9 .220] s 67: (9.220] s 68: (9.220] s 68(1): (9.220] s 69(1): [9.220] s 75: [9.200] ss 80A to 80W: (9.270] s 80B: [9.270] ss 80C to 80D: [9.270] ss 80E to 80F: (9.270] s 80H: (9.270] s 80J: (9.270] s 80K: [9.270] s 83: (9.160] s 101: (9.210] Sch 1: (9.180] Judiciary Act 1903 s 68: [7.940] National Environment Protection Council Act 1994: (1.560] s 7: (9 .80] s 8: [9.50] s 9: [9.50] s 12: [1.560] s 14(1): (1.560] s 28: (1.560] National Greenhouse and Energy Reporting Act 2007: [10.40], [10.50], [10.60], (10.70], (10 .80], (10 .90], (10.100], (10.120], [10.130], (10 .230], (10.270] s 7: (10 .60], (10.70] s 9: [10.70] s 11(1): (10.70] s llB: (10. 70] s 12: (10 .70] s 12(1): (10.130] s 12(4): (10 .70] s 13: (10. 70], (10.80] s 16: (10 .120] s 19: (10 .80], (10.120] s 19(1): (10.130] s 19(1A): [10.80] s 19(5A): (10.90] s 19(6)(d): [10.80] s 19(10): (10.90] s 22G: (10 .120], [10.130] s 22H: [10.130] s 22J: [10.100] s 22K: (10 .100] s 22L: (10.90] s 22R: (10 .100]

s 22X: (10.90], (10.110], [10.120], [10.130] s 22X(2): (10.110] s 24(1): [10.120] s 24(1B): [10.120] s 24(1H): [10.120] s 24(1AD): [10.120] s 30: [10.130] s 33: (10.130] s 39: [10.130] s 45: (10.130] s 46: (10.130] s 47: (10.130] s 47(1): (10.130] s 47(3): (10.130] Pt 3A: [10.270] National Greenhouse and Energy Reporting (Measurement) Determination 2008: (10.80] National Greenhouse and Energy Reporting Regulations 2008 : (10 .70] cl 1.3: (10.80] cl 1.4: (10.80] cl 2.19: (10 .70] cl 2.20: (10 .70] cl 2.23: (10.60] cl 2.24: [10.60] cl 3.04: (10.120] cl 4.05(2): [10.80] cl 4.32: (10.80] su6div 2.4.2: (10.70] National Greenhouse and Energy Reporting (Safeguard Mechanism) Rule 2016: (10.270] National Parks and Wildlife Conservation Act 1975: [1.380] National Water Commission Act 2004: [1.570] Native Title Act 1993: (19.290], [19.310], [20.50], [20.70], (20.150], (20.190], (20.270], (20.280], (20.290], (20.310], (20.330], (20.340], [20.360], (20.380], (20.410], (20.420], (20.460], [20.480], (20.530], (20.570], (20.610], (20.630], (20.650], [20.680], (20.690], (20.730] s 11: (20.630], [20.650] s 13(1): [20.680] s 23B: [20.550] s 23E: (20.550] s 23F: [20.550] s 24FA: (20.630] s 24GE(l)(f): (20.440] s 24HA(7): (20.440] s 25: (20.440]

1007

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Table of Statutes The Environmental Law Handbook

N ative Title Act 1993 - cont s 26: (20.440] s 29: (20.420], [20.430], [20.580] s 30: [20.430] s 30(1)(a): [20.430] s 30A: [20.430] s 31: [20.430] s 33: [20.430] s 35: [20.430] s 36: [20.450] s 36A: [20.430], [20.450] s 38: [20.430], [20.450] s 42: [20.450] ss 47 -47B: [20.550] s 47A: [20.150], [20.650] s 61: [20.320], [20.520], [20.620], [20.660], [20.680] s 61(1): [20.520], [20.530] s 61(4) : [20.530], [20.540] s 62: [20.490] s 62(l)(v): [20.530] s 62(1)(iv): [20.530] s 62(2): [20.550], [20.570] s 62A: [20.590] s 64(1): [20.550] s 64(1A): [20.550] s 64(2): [20.550] s 66: [20.500], [20.620] s 66B: [20.530] s 67: [20.620] s 69: [20.320] s 70: [20.340] s 71: [20.340] s 73: [20.340] s 75: [20.320] s 84: [20.620] s 84(5): [20.500] s 84D: [20.530] s 86A: [20.600] s 86B: [20.460], [20.600], [20.620] s 86C: [20.600] s 86F: [20.600] s 87: [20.600] s 87A: [20.600] s 87 A(5): [20.600] ss 190 - 190D: [20.490] s 190A: [20.510] s 190A(2): [20.580] s 190B: [20.490], [20.510] s 190B(5): [20.570] s 190C: [20.490], [20.510] s 190F(6): [20.490], [20.510] s 203A: [20.690] s 203B(l): [20.700] s 203B(4): [20.700] s 203BB: [20.700] s 203BE: [20. 700] s 203BF: [20.700] s 203BG: [20.700]

s 203BH: [20. 700] s 203BI: [20. 700] s 203BJ: [20.700] s 211: [19.290] s 211(1)(c): [19.290] s 211(1)(ba): [19.290] s 211(2)(a): [19.310] s 213A: [20.690] s 223: [20.290], [20.470] s 223(1)(c): [19.290] s 223(2): [19.290] s 225: [20.480] s 251B: [20.530], [20.590] Pt 2, Div 3: [20.400] Pt 2, Div 3, Subdiv A-E: [20.390] Pt 2, Div 3, Subdiv G: [20.400] Pt 2, Div 3, Subdiv H: [20.400] Pt 2, Div 3, Subdiv I: [20.400] Pt 2, Div 3, Subdiv J-N: [20.400] Div 3: [20.440] Subdiv G: [20.420] Subdiv H: [20.420] Subdiv I: [20.420] Subdiv J: [20.420] Subdiv K: [20.420] Subdiv P: [20.420] Natural Heritage Trust of Australia Act 1997: [1.400], [1.570] Natural Resources Management (Financial Assistance) Act 1992: [1.400], [1.570] Noxious Weeds Act 1993 s 15: [11.990] ss 28 - 32: [11.990] Offshore Minerals Act 1994: [18.1220], [18.1230] s 29(2): [18.1230] s 32(2): [18.1230] Offshore Petroleum Act 2006: [18.1240]

s 13(1A): [9.430] s 13(1AA): [9.430] s 13(1AB): [9.430] s 13(4): [9.440] ss 13(4) to (6): [9.450] s 13(5): [9.440] s 13A(l): [9.420] s 13A(4): [9.450] s 13A(5): [9.460] s 18: [9.430] s 19A: [9.420] ss 23 to 35: [9.430] ss 27 to 28: [9.430] s 28: [9.430] s 35: [9.430] s 37: [9.490] s 38: [9.490] s 40: [9.490] s 56: [9.480] s 64C(4A): [9.480] s 64C(4): [9.480] ss 65AH to 65AJ: [9.480] Sch 4: [9.490] Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 reg 111: [9.470] reg 112: [9.470] reg 113: [9.470] regs 200 - 245: [9.470] reg 302: [9.470] reg 304: [9.470] Pt 6A: [9.410] Petroleum (Submerged Lands) Act 1967: [18.1240] Product Stewardship Act 2011: [9.2420] s 9: [9.2420] s 108A(l): [9.2420] Pt 2: [9.2420] Pt 3: [9.2420] Pt 4: [9.2420]

Offshore Petroleum and Greenhouse Gas Storage Act 2006: [18.1240], [18.1260] s 56(2): [18.1260] s 59: [18.1260] ss 70 to 71: [18.1260]

Protection of Cultural Objects on Loan Act 2013: [17. 710]

Ozone Protection and Synthetic Greenhouse Gas Management Act 1989: [1.490], [9.400], [9.420] s 3: [9.400] s 7: [9.440], [9.450] s 8(1): [9.430] s 8A: [9.420] s 8C: [9.460] s 8D: [9.460] s 13(1): [9.430]

Protection of Movable Cultural Heritage Act 1986: [17.710], [17.870] s 7: [17.870] s 8: [17.880] s 8(2)(a): [17.880] s 8(2)(6): [17.880] s 9: [17.880] s 10: [17.880], [17.920] s lOA: [17.880] s 12: [17.880]

Product Stewardship (Televisions and Computers) Regulations 2011 : [9.2420]

Protection of Movable Cultural Heritage Act 1986 - cont s 14: [17.910]

Protection of Moveable Cultural Heritage Regulations 1987 reg 4: [17.880] Sch 1: [17.880] Protection of the Sea (Prevention of Pollution from Ships) Act 1983: [9.2320] Quarantine Act 1908: [11.1010] Racial Discrimination Act 1975: [20.250], [20.260], [20.270], [20.360], [20.670] s 9: [20.260] s 10: [20.260] Regional Forest Agreements Act 2002: [7.370], [7.380] s 8: [13.40] Renewable Energy (Electricity) Act 2000: [10.210], [10.230], [10.320], [10.340], [10.370] s 5: [10.340] s 14(2): [10.340] s 15(3): [10.340] s 17: [10.340] s 17(1)(f): [13.1080] s 21: [10.360] s 23A: [10.360] s 30]: [10.360] s 30P: [10.360] s 30LA: [10.360] s 32: [10.330] s 33: [10.330] s 35: [10.330] s 36: [10.330] s 38: [10,320], [10.330] s 38A: [10.370] s 38AB: [10.350] s 38AD: [10.350] s 38AE(l): [10.350] s 38AE(2): [10.350] s 38AE(3): [10.350] s 40: [10.320], [10.330], [10.350] s 40A: [10.350] s 44: [10.330] Renewable Energy (Electricity) Amendment Act 2015 Pt 4: [13.1080] Renewable Energy (Electricity) (Large-scale Generation Shortfall Charge) Act 2000 s 6: [10.330] Renewable Energy (Electricity) Regulations 2001 : [10.330], [13.1080]

reg 3(2): [10.360] reg 8: [13.1080] reg 8(2): [13.1080] reg 23(0): [10.330] reg 23A: [10.350] Renewable Energy (Electricity) (Small-scale Technology Shortfall Charge) Act 2010 s 6: [10.350] Sea Installations Act 1987: [7.400] Seas and Submerged Lands Act 1973 s 7: [18.1160] Seas and Submerged Lands (Territorial Sea Baseline) Proclamation 2006: [18.1160] Sydney Harbour Federation Trust Act 2001: [17.710], [17.860] Sydney Harbour Trust Act 2001 s 3: [17.860] s 5: [17.860] s 6: [17.860] s 9: [17.860] ss 10 - 12: [17.860] ss 26 - 36A: [17.860] s 28(2): [17.860] s 37: [17.860] ss 57 - 57A: [17.860] s 71: [17.860] Sch 1: [17.860] Sch 2: [17.860] Telecommunications Act 1991: [1.530] Telecommunications Act 1997: [7.330], [7.430] Sch 3, Pt 1, Div 3, cl 6: [1.530] Sch 3, reg 2: [7.430] Therapeutic Goods Act 1989: [9.120] Threatened Species Conservation (Biodiversity Banking) Regulation 2008: [12.1200] Trade Practices Act 1974: [7.490] Waste Minimisation and Management Act 1995: [9.2410] Water Act 2007: [1.440], [7.140], [15.70], [15.80], [15.120], [15.740], [15.810] s 3(6): [15.120] s 3(d): [15.120] s 5: [15.770] s 9: [15.120] s 9A: [15.120] s 18E(l): [15.120] s 20: [15.120]

s 21(1): [15.120] s 21(2): [15.120] s 21(3): [15.120] s 21(4): [15.120] s 21(5): [15.120] s 22(1): [15.120] s 22(8): [15.120] s 22(10): [15.120] s 22(11): [15.120] s 23: [15.120] s 24: [15.120] s 24(5) : [15.120] s 24(6): [15.120] s 24(7): [15.120] s 25: [15.120] s 26: [15 .120] s 28: [15.120] s 28(1): [15.120] s 35: [15.120] s 55(2): [15.120] s 71: [15.750] s 71A: [15.750] s 71B: [15.750] s 71L: [15.770] ss 71M- 71N: [15.770] s 710: [15.770], [15.780] s 71Q: [15.770] s 71R: [15.780] s 71U: [15.790] s 71Y: [15.770] s 71Z: [15.770] s 86A: [15.120] Water Regulation 2008 reg llA.02: [15.120] Sch 5: [15.120] World Heritage Properties Conservation Act 1983: [1.370], [17.40]

AUSTRALIAN CAPITAL TERRITORY Climate Change and Greenhouse Gas Reduction Act 2010: [10.40] Energy Efficiency (Cost of Living) Improvement Act 2012: [10.210] Fisheries Act 2000 s 3(6): [19.60]

NEW SOUTH WALES Aboriginal Land Rights Act 1983: [l.330], [18.40], [20.40], [20.50], [20.70], [20.80], [20.90], [20.100], [20.110], [20.190], [20.210], [20.560], [20.650], [20.770] s 36: [18.40], [20.70], [20.90], [20.100], [20.130]

1009

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The Environmental Law Handbook

Aboriginal Land Rights Act 1983 - cont s 36(1)(d): (20.100], [20.650] s 36(1)(e): (20.100], [20.650] s 36(6): (20.100] s 36(9): (20.150] s 36(9A): [20.150] s 37(3): (20.150] s 38: (20.80] s 40: (20.130] ss 40 - 42: [20.120] s 42: [20.140], [20.150], (20.650] s 42(2)(a): [20.140] s 42D: [20.130] s 42E: (20.130] s 42E(3): (20.130] s 42G: [20.70], (20.130] s 42G(2): (20.130] s 42G(5): (20.130] s 43: (20.160] s 44: (20.160] s 44A: [20.160] s 44A(3): [20.160] s 45: (20.170] s 45(4): [20.170] s 45(6): [20.170] s 45(9): [20.170] s 45(11): [20.170] s 46: [20.170] s 47: [20.180] s 48: (20.180] s 52: [20.200] s 52(4): (20.200] s 54: (20.80] s 82: (20.200] s 83: (20.200] s 106(3): [20.200] ss 166 -169: (20.100] ss 170-175: (20.190] Div 4: [20.70], [20.120] Sch 3: [20.130] Sch 9(1): [20.800] Aboriginal Land Rights Regulation 2002: (20.160] cl 7(6): (20.160] cl 7(c): [20.160] Sch 1: (20.160] Aborigines Act 1969: (20.10], (20.40] Aborigines Protection Act 1909: [20.10] Administrative Decision (Judicial Review) Act 1977: (2.870] s 13(4A): (2.860] Administrative Decisions Review Act 1997 s 5(a): [19.80] s 8: [19.80]

Table of Statutes s 55(1): [19.80] Agricultural and Veterinary Chemicals (New South Wales) Act 1994: [11.590] s 6: (11.590] s 13: (11.590] s 31: (11.700] Pt 4: (11.590] Barangaroo Delivery Authority 2009: (1.130] Biological Control Act 1985: (11.1000], (11.1010], [11.1020] s 3: (11.1010] s 4: (11.1000] s 5: [11.1010], [11.1060] s 6: [11.1000] s 7: (11.1000] s 8: (11.1020] s 10(2): (11.1020] s 11: (11.1020] s 15: (11.1020] s 16: [11.1020] s 17: (11.1020] s 18: (11.1020] s 18(1)(d): [11.1030] s 18(1)(e)(i): (11.1030] s 18(1)(f): [11.1030] s 19(2): [11.1020] s 20: (11.1020] s 24: [11.1020] s 25: (11.1020] s 26: (11.1020] s 27: (11.1020] s 27(1)(d): (11.1040] s 27(1)(e)(i): [11.1040] s 27(1)(e)(ii): (11.1040] s 27(3): (11.1020] s 28(1): (11.1070] s 29: [11.1050] ss 29 - 31: (11.1050] s 32: (11.1060] s 33: [11.1010] s 34: (11.1010] s 34(1): (11.1010] s 34(2): (11.1010] s 34(3): [11.1010] s 35: (11.1060] s 35(1): (11.1010] s 35(2)(a): [11.1010] s 35(2)(6): [11.1010] s 35(4): (11.1010] s 50: (11.1010] s 51: (11.1080] s 54(1)(a): [11.1020] s 54(1)(6): (11.1020] s 54(l)(d): (11.1020] s 54{l)(e): (11.1020] s 54(1)(f): [11.1070] s 54(1)(g): [11.1050] s 54{l)(h): [11.1050]

s 54(1)(i): [11.1080] Blue Mountains Land Development (Special Provisions) Act 1985: [2.520] Brigalow and Nandewar Community Conservation Area Act 2005: (13.320] Building Professionals Act 2005: (5.600], (5.1780], (5.1800] s 4: (5.600] s 80(12): (5.1810] s 81A(2)(a): (5.1790] s 81A(4)(a): (5.1790]

Clean Air Act 1961: (9.550], (9.1370], [9.1430] Clean Waters Act 1970: (9.550], [9.890] s 16: (2.640] Clyde Waste Transfer Terminal (Special Provisions) Act 2003: (2.530] Coal Acquisition Act 1981: [18.50] s 5: (18.50] s SA: [18.50] s 5B: [18.50] s 6: [18.50]

Carbon Rights Legislation Amendment Act 1998: [13.880]

Coal Acquisition Legislation Repeal Act 2007: [18.50]

Catchment Management Act 1989: (1.90], [16.40], [16.50], [16.110] s 4: [16.50] s 5(1)(a): (16.70] s 5(1)(6): (16.70]

Coal Mining Act 1973: (18.750]

Catchment Management Authorities Act 2003: (1.90], [11.290], (16.90], [16.100], (16.210], [16.390] s 3: [16.120] s 4: (16.130] s 6: [16.100] s 8: (16.110] s 14: (11.290], [16.130] s 15: [16.140] s 19: [16.140] s 20(1): [16.140] s 20(1A): (16.140] s 20(2): (16.150] s 20(2)(c): (16.190] s 21: (16.160] s 22: [16.160] s 23: (16.160] s 26: [16.160] Sch 1: [16.100] Sch 3: [16.110]

Coastal Protection Act 1979: [1.40], [3.710], (5.1180], [14.20], (14.30], [14.80], (14.130], [14.210], [14.800], [14.830], [14.860], [14.1240], [14.1340] s 3: [14.710] s 4: [14.40] s 4(1): [14.50] s 4A: [14. 70] s 4A(3): [14.40] s 4A(3)(e): (14.60] s 4B(l): [14.70] s 4B(2): (14.70] s 4B(3): [14.70] s 5: [14.770] s 37: [14.720] s 37A: [14.730] s 37B: [14.730], [14.1380] s 38: [14.780] s 38(1): [14.730] s 38(1)(b)(i): [14.730] s 38(1)(c): (14.730] s 38(1)(d): [14.730] s 39: (14.780] s 39(1): [14.730] s 39(3): (14.1380] s 40(1): (14.760] s 40(2): [14.760] s 41: (14.750] s 42: (14.750] s 44: (14.740] s 46: [14.750] s 51: (14.820] s 52: (14.770] s 55B: (14.780], [14.810] s SSC: (14.810] s 55C(b): (14.780] s SSE: (14.810]

Catchment Management Regulation 1999: (16.60] reg 3(1): [16.60] reg 5: [16.60] City of Sydney Act 1988: [5.840] s 31: [5.840] s 34: [5.840] s 40: (5.840] ss 46 to 51: (5.840] s 61: (5.2090] Civil Liability Act 2002: (14.960] s 41: (14.960] s 42(d): [14.960] s 43A(3): [14.960] Pt 5: (14.960]

Coal Ownership (Restitution) Act 1990: [18.50] s 7(1A): [18.50]

s 55F(l): [14.810] s 55F(2): (14.810] s 55F(3): [14.810] s 55G(l): [14.810] s 55G(2): (14.810] s 55H(l): (14.810] s 55]: (14.810] s 55K: [14.810] s 55M: (14.800] s 55N: (14.30] s 55N{2): (14.860] s 55N(3): (14.860] s 55N(4): (14.860] s 55P: (14.800] s 55Q(1): (14.800] s 55Q(2): (14.800] s 55S: [14.800] s 55X: [14.800] s 55Y: (14.800] s 55Z(1): (14.800] s 55Z(2): (14.800] ss 55ZA- 55ZC: [14.820] s 55ZC(3): [14.800] s 56A: [14.830] s 56A(2): (14.830] s 57: (14.770] s 58(1): (14.770] s 79C: [5.1180] s 117: [14.890] s 117(2): [14.170] s 149: (14.920] Pt 3: (5.2740] Pt 4B: (14.860] Sch 1, cl 3(1): (14.810] Sch 1, cl 3(2): (14.810] Coastal Protection Regulation 2011: (14.680], [14.1380] Coastal Protection and Other Legislation Amendment Act 2010: (14.800], [14.820] Commons Management Act 1989: [4.10] Constitution Act 1902: (20.60] s 2: [20.60] s 51: [8.20] Constitution Amendment (Recognition of Aboriginal People) Act 2010: (20.60] Contaminated Land Management Act 1997: (1.80], (3. 710], (9.620], (9.1590], (9.2670], [9.2680], [9.2700], (9.2730], (9.2770], [9.2780], (9.2810], (9.2820], (9.2830], [9.2860], [9.2870] s 5(1): [9.2670] s 7(1): [9.2740] s 7(2): [9.2740]

s 9(1) : (9.2700] s 9(3)(d)(iii): (9.2700] s 10(1): (9.2680] s 10(3): (9.2680] s 11: (9.2690] s 11(2): (9.2690] s 11(4): (9.2690] s 11(5): (9.2690] s 12: (9.2680] s 13: (9.2730] s 13(1): [9.2750] ss 13(2) to (4): (9.2740] s 13(3): (9.2730] s 13(4): (9.2730] s 13(6): [9.2750] s 14(1): [9.2700] s 14(1A): [9.2770] s 14(6): [9.2700] s 14(7): (9.2700] s 16: [9.2700] s 16(m): [9.2830] s 17: (9.2710] s 28: (9.2720] s 28(2): (9.2720] s 28(3): (9.2720] s 29: (9.2720] s 29(4): [9.2720] s 30: [9.2750] s 32: [9.2700] s 32(3): [9.2760] s 35(1): (9.2760] s 35(2): (9.2760] s 36: (9.2760] s 36(3): [9.2760] s 37: (9.2760] s 42B: (9.2770] s 42C: (9.2770] s 42D: [9.2770] ss 42F to 42G: [9.2770] s 42G(7): [9.2770] s 42G(8): [9.2770] s 42K: [9.2770] s 46: [9.2860] s 47(a): [9.2830] s 47(c): (9.2830] ss 47 to 57: [9.2820] s 48(1)(a): (9.2830] s 51: (9.2820] s 53B: (9.2790] s 57(1): (9.2830] s 58(1): (9.2800] s 59: [9.2790] s 59(2): (9.2790] s 60: [9.2780] s 60(1): (9.2780] s 60(2): (9.2780] s 60(3): [9.2780] s 60(7): (9.2780] s 60(8): (9.2780] s 61: [9.2700] ss 91 to 92: [9.2810]

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Contaminated Land Management Act 1997 - cont s 92A: (9 .2810] s 94: (9.2810] s 95: (9.2810] s 95(2): (9.2810] s 95(3): (9.2810] s 95A: (9.2810] s 95A(4): [9.2810] s 95B: (9.2810] s 95B(l): (9.2810] s 96: [2.880], (9.2810] s 96A: (9.2810] Pt 3: [9.2810] Pt 3, Div 2: (9.2680] Pt 9: (9.2810] Contaminated Land Management Regulation 2013 cl 11: [9.2810] Sch 1: (9.2810] Conveyancing Act 1919: [2.110], (2.120], (5.130], (5.1850], (13.880], (13.1020], (17.60] s 4B(3)(e)(i): [5.130] s 87: (13.1030] s 87A: (2.120], (13.1020], (13.1030] s 88A(2A): (2.110] s 88B: [2.110] s 88D: (2.120], (17.980] s 88E: [2.120], [2.130], [9.2720], (12.1650], (17.980] s 88F(2): [2.130] ss 88F to 88J: [2.130] s 88H: (17.980] s 881: (2.130], (17.980] s 88K: [2.110] s 88K(l): (2.110] s 88K(2}: [2.110] s 88AB: (13.1020] s 89: (2.70] s 109C(l)(d): (5.1850] s 195: [5.130] Courts and Crimes Legislation Further Amendment Act 2008: (18.930] Crimes Act 1900: (13.630] Crimes Act 1914 s 4AA: (2.710] Crimes (Local Courts Appeal and Review) Act 2001 s 32: [2.740] s 43: (2.740] Crimes (Sentencing Procedure) Act 1999 s 8: (9.1910] s 17: (2.680]

Criminal Appeal Act 1912 s SAA: (2.780] s 5AB: [2.780] Crown Lands Act 1989: [2.80], [4.10], [4.30], [4.100], (4.200], (4.210], (4.330], (8.200], (11.170], (11.200], (11.230], (13.240], (14.860], (14.1080], [14.1090], (14.1360], (18.310], (18.1340], (19.780] s 3: (4.100] s 4: (11.170] s 6: (13.180] s 7: (13.180] s l0(c): [4.40] s 11: [4.40] s 30: (4.50] s 31 : [4.50] s 32: [4.50] s 33: [4.50] s 34: [4.70], (11.170], (11.230], (11.240], (11.280] s 34(3): (4.60] s 34(6): [11.170] s 34A: [4.330] s 34A(2)(c): (4.330] s 35(1): [4.40] s 35(2): [4.40] s 36: [4.80], [11.240] s 37: [4.80], [11.240] s 41: (11.170], (11.230] s 45: [14.1280], (18.1340] ss 45 - 50: [11.230] s 49(3): (14.1280], (18.1340] s 56: [4.80] s 57: [4.80] s 57(1): [4.80] s 61: (11.310] ss 75 - 77: (8.200] s 80: (4.100], [4.180] s 82: (4.180] s 84: (4.200] s 85(1): [4.40] s 85(2): [4.40] s 87: (4.100], [4.180] s 90: (4.210] s 91(1): [4.40] s 91(2)(a): [4.40] s 91(2)(6): [4.40] s 92(5): (4.530] s 95(l)(a): (8.200] s 98: (8.200] s 102: [4.100], (4.330] s 102A: (4.330] s 103: [4.100] s 108: (4.330] s 112: [4.510], (4.530] s 112(2): (8.200] s 113: [4.530] s 113(1)(c}: (8.200] s 114(1): [4.530]

s 114(1C): [4.540], (8.200] s 114(2): (4.590] s 115: (4.590] s 129: (4.80] ss 129 - 132: [11.230] s 135: (11.190] s 136(4): (11.230] s 139: (11.220] s 139(2): [11.220] s 140: (11.220] s 172(1): [14.1060] s 172(3): (14.1070] s 172(4): (14.850], (14.1070] s 172(5): (14.1080] s 172(7): (14.1040], [14.1080] s 172(9): (14.1040], (14.1080] Pt 5, Div 4: [4.330] Crown Lands Consolidation Act 1913: (11.200], [11.210] s 48: (11.200] s 49: (11.200] s 70: [11.210] s 118(1): (11.200] s 130(4): (11.200] s 226(1): [11.210] Crown Lands (Continued Tenures) Act 1989: [4.10], (11.170], [11.210], (11.220], (14.1080] Sch 1, Pt 2: (11.210] Sch 1, Pt 3: [11.210] Sch 2, Pt 6, cl 5: [11.210] Sch 6: [11.220] Sch 6, cl 2(3}: (11.220] Sch 7: [4.90], [11.180] Sch 7A: (4.90] Sch 7, Pt 1, cll 2 to 3: [4.90]

Dangerous Goods (Road and Rail Transport) Regulation 2014: (9.540] Darling Harbour Authority Act 1984: (1.130] Electricity Network Assets (Authorised Transactions) Act 2015: (9 .640], (9 .1730], (9.2120], (10.430] Electricity Supply Act 1995: (10.400], (12.1020], (13.870] s 15A: [10.410] s 97B: [10.40] s 97BA: [10.40] s 98: (10.400] s 101: [10.400] s 103: (10.400] s 106: [10.400] s 107: (10.400] s 107(2): [10.400] s 109: [10.400] s 110: [10.400] s 111: (10.400] s 112: [10.400] s 113: [10.400] s 116: (10.400] s 119: (10.400] s 123: [10.400] s 127(6): (10.210] s 178: (10.400] Pt 8A: [10.40], (13.870] Sch 5: (10.400] Sch 5A: (10.400] Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Act 2002: (13.870]

Crown Lands Regulation 2006 cl 3: (4.50] cl 22: (4.80] cl 34: (4.530] cl 38: [11.220] Sch 2: [18.40]

Electricity Supply Amendment (Solar Bonus Scheme) Act 2009: (10.410]

Cumberland Oval Act 1981: (2.430], (2.530]

Electricity Supply (General) Regulation 2014 cl 29: (10.400]

Cumberland Oval (Amendment) Act 1983: (2.530] Cumberland Oval (Amendment) Act 1984: (2.530] Dangerous Goods Act 1975: (9.520] Dangerous Goods (Road and Rail Transport) Act 2008: (9.540] s 3: (9.540] s 8: (9.540] s 9(1): (9.540] s 9(2): (9.540]

Electricity Supply Amendment (Solar Bonus Scheme) Act 2010: (10.410]

Electricity Supply Regulation 2001: (13,870] Energy Savings Scheme Rule of 2009: (10.400] Environment Planning and Assessment Act 1979 s 97: (2. 740] Environment Protection and Biodiversity Conservation Act 1999: (13.1010]

s 314: (17.40] Environmental Offences and Penalties Act 1989: (9.550] Environmental Planning and Assessment Act 1979: (1.40], (1.50], (1.160], (1.170], (1.180], (1.210], [1.270], [1.530], [2.10], [2.20], (2.70], [2.80], (2.130], (2.250], (2.290], [2.330], (2.430], (2.460], (2.510], [2.520], (2.530], (2.660], (2.690], [3.05], (3.10], (3.20], [3.40], (3.50], (3.60], (3.80], [3.100], (3.160], [3.210], [3.280], (3.310], [3.360], (3.370], (3.380], (3.590], (3.630], (3.680], (3.700], (3.760], [4.30], (4.410], [4.470], [5.05], [5.10], [5.30], [5.40], [5.50], (5.60], (5.80], [5.100], [5.120], (5.130], (5.270], (5.340], [5.370], (5.410], [5.420], (5.460], (5.500], [5.510], [5.530], (5.580], (5.770], (5.850], [5.880], (5.980], [5.990], [5.1000], (5.1010], (5.1020], [5.1030], [5.1040], [5.1090], [5.1120], (5.1130], [5.1140], (5.1150], (5.1160], [5.1170], [5.1180], [5.1190], (5.1200], (5.1230], [5.1240], [5.1270], [5.1280], (5.1300], [5.1310], [5.1320], (5.1330], [5.1340], [5.1350], [5.1380], (5.1390], [5.1400], [5.1430], [5.1440], (5.1460], (5.1470], (5.1480], (5.1490], [5.1500], (5.1530], [5.1540], (5.1550], (5.1560], [5.1570], (5.1580], [5.1590], (5.1600], (5.1610], (5.1620], (5.1670], (5.1680], (5.1770], (5.1780], (5.1790], (5.1800], (5.1810], (5.1820], (5.1830], (5.1840], (5.1850], (5.1860], (5.1870], (5.1900], (5.2170], (5.2200], [5.2250], (5.2420], (5.2500], [6.10], [6.30], (6.200], (6.210], (6.320], (6.330], (6.350], (6.360], [7.450], [8.10], (8.40], (8.60], [8.110], (8.180], (9.580], (9.590], (9.620], (9.690], (9.700], (9.740], [9.1130], (9.2010], [9.2450], [9.2500], (9.2680], (9.2830], [9.2870], [10.160], (10.310], [10.420], (11.20], [11.80], [12.10], (12.360], [12.370], (12.560], [12.650], [12.720], [12.740], [12.790], (12.810], [12.860], [12.970], [12.990], (12.1030], [12.1100], (12.1110], [12.1140], [12.1150], (12.1200], [12.1240], (12.1250], (12.1270],

(12.1280], (12.1410], (12.1460], (12.1530], (13.660], (13.700], (13.790], (13.800], [14.20], (14.170], [14.260], (14.390], (14.620], (14.750], (14.810], (14.960], (14.1020], (14.1220], (14.1390], (15.710], [15.880], [16.10], [16.40], (16.60], (16.90], (16.130], (16.320], (16.340], (16.380], (17.60], (17.170], (17.370], [17.670], [18.20], [18.140], (18.430], (18.570], (18.600], (18.730], (18.740], (18.760], (18.840], [18.1090], [18.1290], (20.820] s 3: (3.160], (19.580] s 4: (1.180], (3.170], (3.400], (5.60], (11.80], (12.1110], (12.1160] s 4(1): (3.170], (5.80], [5.120], (5.140], [5.150], (5.600], (5.830], (5.1040], (5.1380], (5.2200], [6.210] s 4(2)(6): (5.110] s 4(2)(c}: [5.150] s 4(2)(e): (5.110] s 4(1): (3.40] s 4B: (5.130] s 5: [2.250], [3.40], (3.160], [3.270], (5.1180], [5.1900], (19.580] s 5(1): [2.520] s 5(a)(viii}: [5.1900], [5.2200] s 5(a)(i): (2.250] s 5(a)(ii): [2.250], [3.660] s 5(a)(vi): (2.250], (12.860] s 5(6): (3.80] s 5(c}: [3.80], [5.1170] s 5A: [5.1340], [12.1080], (12.1160] s 5A(l): [12.1080] s 5A(2}: (12.1090] s 5A(2)(e): [12.500] s 5A(2)(f): (12.530] s 5B: (12.500] s 5B(l}: (5.1340] s 5B(2)(a): (5.1340] s SC: (12.1100] s SD: [12.1100] s 8(1): (8.350] s 9: (3.05], [5.370] s 10: (3.05], (19.570] s 13: (12.370] s 15: (5.370] s 17: (2.510] s 21(1)(6): (3.230] s 23: (3.230], (5.2720] s 23D: (6.300] s 23D(l)(a): (5.1180] s 23D(l)(6): (5.1030] s 23D(l)(b}(ii}: [5.920]

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Environmental Planning and Assessment Act 1979 - cont s 23G(2): [5.830] s 23G(2)(a): [5.1180] s 24: [3.40], [5.60] s 25B: [5.2660] s 25C: [5.2660] s 26: [5.60], [5.80], [5.160], [6.90], [12.860], [12.1100] s 26(1): [3.40] s 26(1)(6): (5.60] s 26(1)(c): (3.230] s 26(1)(d): [5.1900] s 26(1A): [12.970] s 26(1B): (12.970] s 26(4): [12.990] s 27: (3.230] s 27(3): (3.230] s 27(4): [3.230] s 28: (2.80], (2.140], (2.150], [3.220], [8.210], (12.1610], (12.1620], [12.1630], (17.450] s 28(2): [2.80] s 28(3 ): [2.80] s 29: (3 .160], (14.390] s 29A: (3.160] s 30(1)(a): [5.60] s 30(1)(6): (5.60] s 30(2): (5.850] s 31: (5.60] s 33A: (5.70] s 33A(3): (5.190] s 33B: (5.70] s 34: (3 .280] s 34(5): (3.750] s 34(6): (3.750] s 34(8): [3.750] s 34A: (3.280], (3.590] s 34A(l): [12.970] s 34A(2): (12 .500], [12.970] s 34A(5): [12.970] s 34A(6) : [12.970] s 35: [2.510], [3.610], [3.620] s 36(1)(a) : (3.580] s 36(1)(6): (3.580] s 37: [3.380] s 37(2): [3 .590] s 37B: [14.730] s 38: (3.590] s 39(2): [3.600], [5 .2260] s 39(3): (5 .2260] s 43(a): [5.370] s 43(6): [5.370] s 43(d): (5.370] s 47: [5.370], [14.750] s 47(2)(a): [13.790] s 47(2)(6): [13.790] s 47(2)(c): [13.790] s 48: [5 .370] s 54: (3.280]

s 54(3): [3.290] s 55: [3.310], [5.370] s 55(1): (3.280] s 55(2): [3.280] s 55(3): [3.290] s 550: [14.800] s 55W: [14.800] s 56: [3.280], (3.290], [3.310] s 56(8): [3.630] s 57: [3.280] s 57(3): [3.300] s 57(5): [3.300] s 57(8): [3.300] s 58: [3.280], [5.370] s 58(3): (3.300] s 59: (3.280], (3.310] s 59(1): (3.300] s 63: [5.370] s 64: [5.370], [18.1090] s 72}: [3.370] s 72K: (3.370] s 73: [3.360] s 73A: [3.280] s 73A(l)(a): [3.360] s 73A(1)(6): [3.360] s 73A(l)(c): [3.360] s 74: (3.360] s 74C(l): [3 .670] s 74C(l)(6): [5.1090], [5.1120] s 74C(l)(c)(i): [5.1120] s 74C(2): [3 .670] s 74C(5): [3.680] s 74D: [3.680] s 74E: [3.690] s 74F: [3.690] s 74BA: [3.670] s 75AA: [3.05] s 75AB: [3.05] s 75AI: (3 .05] s 75B(l): [5.2690] s 75C: [5.2690] s 75J(2)(a): [2.420] s 75J(2)(e): (2.420] s 76: [3 .50], [3.60], [5.60] s 76(1): [5.270] s 76(2): [3.160], [5.290] s 76(3): [5.290] s 76(3)(a): [12.500] s 76A: [3.50], (3.60], [5.60], (5.2370] s 76A(l): [5.270], [5.1810], [5.2500] s 76A(5): [3.160], [5.320] s 76B: [3.50], (3.60], (5.60], (5.270] s 77: (5.2320] s 77A: (5.330] s 77A(2): (5.340] s 78A: (13.970] s 78A(l): [5.650] s 78A(2): (5.580]

s 78A(3): (5.580] ss 78A(3)- (6): [8.60] s 78A(8): [6.250], (12.1190] s 78A(8)(a): (5.680], (6.190] s 78A(8)(6): (5.680], (5.1340], [6.200], (6.220], (12.500], (12.1080] s 78A(8A): (5.680], (5.2720], (6.190], (6.250], (12.1190] s 78A(9): (5.680] s 78B: [13.970] s 78B(3 ): (12.500] s 79: [6.290] s 79(1): [5.990], (5.1000], (5.1010], [12.1120] s 79(1)(a): (5.1010] s 79(1)(6): (5.970] s 79(1)(c): (5.970] s 79(1)(d): (5.970] s 79(4): (5.1000], (12.1120] s 79(5): (5.970], (5.1000], (12.1120] s 79A: (12.1120] s 79A(l): (5.1100] s 79A(2): [5.1120] s 79B: (12.370] s 79B(2A): (5.850], (12.1190] s 79B(8A): (5.850], [12.1130] s 79B(8B): (5.850], (12.1130] s 79B(l) : [5.850] s 79B(2): (5 .850] s 79B(3): (1.210], (5 .850], [6.340], (12.1130] s 79B(4): (12.1130] s 79B(5): (6.340], (12.1130] s 79B(5)(c): (12.1120] s 79B(5)(g): [1.210] s 79B(8): (5.850], (12.1130] s 79B(9) : (5.850] s 79B(10): (5.850] s 79C: (1.210], (2.410], (3.70], [5.1180], [5.1190], (5.1240], (5.1300], (5.1310], (5.1390], [5.1470], (5.1540], (5 .1560], (5.2320], [5.2370], (5.2620], (5.2630], (5.2720], (5.2760], [6.170], (12.1280], [17.620], [20.820] s 79C(l): (2 .330], (5.1180], (5 .1470], [5.1480], (5.1570], (5.1890], (5.2360] s 79C(l)(a): [3.50], (16.320] s 79C(l)(a)(i): [14.560] s 79C(l)(a)(iiia): [5.2110] s 79C(l)(a)(i): (3.70], (5.1270] s 79C(l)(a)(ii): (3.70], (5.1180], (5.1300]

Environmental Planning and Assessment Act 1979 - cont s 79C(l)(a)(iii): [5.1310] s 79C(l)(a)(v): (14.560] s 79C(l)(a)(iv): (5.1330], (14.560] s 79C(1)(6): (5 .1200], (5.1340], (5.1380], (5.1400], [12.1070] ss 79C(1)(6) to (e): (3.70] s 79C(l)(c): (5.1440] s 79C(l)(d): (5.1460], (5.1470], [12.1120) s 79C(l)(e): (5.1300], (5 .1320], (5.1350], (5.1390], (5.1480], [5.1680], [14.620) s 79C(2): (5.1230], (5.1280] s 79C(3)(6): (3.400] s 79C(3A): (3.680], (5.1310] s 79C(3A)(a): (5.1310) s 79C(3A)(6): (5.1310] s 79C(3A)(c): [5.1310) s 79C(4): (5.1230] s 79C(6): (5.1280] s 79C(6): [16.320) s 80(1): (5.1500) s 80(3): [5.1530), [5.1540) s 80(4): (5.770), (5.820] s 80(5): (5.770), (5.820], (5.1550] s 80(6): (5.2290) ss 80(6) to (7): (5 .1030] s 80(7): (5.2290] s 80(9): (5.1010], [5.1030) s 80(10): (5 .1030) s 80A: (5.1560], (5 .1890] ss 80A(10B) to (l0E): [5.1610) s 80A(l): (5.1570) s 80A(l)(a): [5.1890] s 80A(1)(6): (5.490], (5.2410) s 80A(l)(f): [5.1890] s 80A(2): (5.1580) ss 80A(6) to 80A(10): [5.1600) s 80A(ll): (5.1620] s 81: [5 .1500] s 81(1): (5.2260) s 81A(l): (5.1820] s 81A(2)(6): (5.1860) s 81A(2)(6)(i): (5.1860] s 81A(3): [5.140] s 81A(5): [5 .1790] s 82(1): [5.2240] s 82A: (5.2220] s 82A(2A): (5.2220] s 82A(l): (5.2220] s 82A(12): (5.2220] s 82B: (5.660], (5.2220) s 82C(3): (5.2240] ss 83A to 83D: [5.1550] s 83B: (5.780]

s 83B(2): [5.780] s 83B(3): (5.790] s 83C: [5.810] s 83D(2): [5.790] s 83D(3): [5.800] ss 84 - 87: (3.160] s 84A(l): (5.590] s 84A(2): (5.610] s 85(1): [5.630] s 85(4): [5.140] s 85A: (5.1780] s 85A(l): (5.1780) s 85A(3): [5.610] s 85A(4): [5.610] s 85A(6): [5.590], [5.640] s 85A(7): [5.610), (5.1230) s 85A(8): (5.610] s 85A(9): (5.640], [5.1990] s 85A(10): (5.610) s 88(1)(a): [5.1100] s 88(2)(a): [5.880] s 89: [5.370] s 89(1): [5 .880] s 89(1)(c): [17.290] s 89(2) : [5 .890] s 89(2A): [5.890] s 89(3): [5.890] s 89(4): [5.890) s 89(5): [5.890] s 89(7): (5.890] s 89A(l) : [5.890) s 89A(3): [5.890] ss 89C - 89L: (12.1350] s 89C(2): [5.2710] s 89C(3): [5.2710], [18.490] ss 89C to 89L: [3.380] s 89D: [5.2720] s 89D(l): [5.830) s 89E(2): [5.2730] s 89E(3): [5.2730] s 89E(5): (3.370], (5.2730] s 89E(6): (3.370], (5.2730] s 89F: [5.2720], [6.290] s 89F(4): (5.2720] s 89G: [12.1190] s 89G(6): [18.630] s 89H: [5.2720], [12.1070] s 891: [12.1250], (12.1340] s 89}: [5.2740), [18.120] s 89}(1)(6): [19.900], [19.960) s 89J(e): [12.1460] s 89K: [5.2740], [18.140] s 89K(l)(a): (19 .710] s 89K(l)(c): [18.480] s 89K(l)(d): [18.1110] s 89K(l)(e): (9.700], [9.740] s 89K(2)(c): [9.700] s 89L: [12.1340] s 90: (5.370], [5.1240] s 90(1): (5.1430) s 90(1)(d): [5.1430)

s 90(l)(q): [5.1300] s 90A: (9.740] s 91: (5.370], [14.580], (14.1030], [14.1140], [14.1210], [18.500], [18.730] s 91(1): (14.1240], (14.1390] s 91(2): [20.730] s 91A(2): (5.390] s 91A(4): (5.390] s 91A(5): (5.390] s 92: [17.670] s 92(1): (5.2320) s 92(1A): [5.2320] s 92(2): (5.390], [5.2320] s 93: (5.390], [9.740] s 93C: (5 .1920], (5.1930], [5.2110] s 93E(l): [5 .2020], [5.2160] s 93E(2): (5.2020) s 93E(3): [5.2020] s 93F: [5.1880) s 93F(l): [5.2110] s 93F(2): [5.2120] s 93F(3): [5.2130) s 93F(4): [5.2110] s 93F(5): [5.2140] s 93F(6): [5 .2140] s 93F(9): [5.2170] s 93G(l): [5.2180) s 93G(5): [5.2180] s 93H: [5.2180] s 931(1): [5.2110] s 931(2): [5.2110] s 931(3): [5.2110), (5.2380] s 93}(1): (5.2190] s 93}(2): [5.2190] s 94: (5.1560], [5.1680], (5.1880], [5.1890], [5.1900], [5.1910], (5.1920], [5.1930], [5 .1950], [5.1960], (5.1980], [5.1990], (5.2000], [5.2020], [5 .2030), [5.2040], (5.2050], [5.2060], (5 .2070], [5.2100], [5.2110], [5.2140], (5.2230], [5 .2380], [8.340], [8.350] s 94(1): [5 .1890], (5.1940] s 94(2): [5.1890], (5.1910], [5.1960] s 94(3): [5.1950] s 94(4): [5.1960] s 94(5): (5.1890] s 94(6): (5.2140] s 94A: [5.1560], (5.1880], [5.2010], (5.2060],

l Ql S

lO 16

Table of Statutes

The Environmental Law Handbook

Environmental Planning and Assessment Act 1979 - cont [5.2070], [5.2080], [5.2090], [5.2100], [5.2140] s 94A(l): [5.2070] s 94A(2): [5.2070] s 94A(4): [5.2070] s 94B: [5.1770] s 94B(l): [5.1990] s 94B(2): [5.1990] s 94B(2)(a): [5.2050] s 94B(2)(6): [5.2050] s 94B(3): [5.1960], [5.2000] s 94B(4): [5.2070] s 94D(l): [5.2050] s 94D(3): [5.2050] s 94E(l): [5.2060] s 94E(l)(d): [5.2080] s 94E(2): [5.2060] s 94E(3): [5.2060] s 94F: [5.1880], [5.1900] s 94F(l): [5.2200] s 94F(2): [5.2200) s 94F(3): [5.2200) s 94F(5): [5.2200] s 94G: [5.1900) s 94G(2): (5.2210] s 94G(3): [5.2210] s 94EA(2): (5.2070] s 94EB(3): (5.2010] s 94EC: (5.1990] s 94EF: (5.1880] s 95: (5.2440], (5.2470] s 95(1): (5.2440) s 95(2): (5.2440) s 95(3): (5.2440] s 95(3A): (5.2440] s 95(4): [5.2460], (5.2470] s 95(5): (5.2460] s 95(6): (5.2460] s 95A(l): (5.2450] s 95A(2): (5.2450] s 95A(3): (5.2450] s 95A(5): [5.2450) s 96: [5.1680], [5.1730], [5.1800], [5.1890], (5.2110], (5.2320], (5.2330], (5.2370], [5.2380], (5.2420] s 96(1): (5.2330], (5.2350] s 96(1A): (5.2340], (5.2350], (5.2440] s 96(1A)(6): [5.2320] s 96(1A)(d): [5.2340] s 96(2): [5.2350) s 96(2)(a): [5.2320] s 96(2)(6): [5.2350] s 96(3): [5.2320], [5.2360] s 96(4): [5.2320) s 96(6): [5.2240]

s 96A(l): [5.2430] s 96A(2): [5.2430] s 96A(3): [5.2430] s 96A(5): (5.2430] s 96A(7): [5.2430] s 96A(9): [5.2430] s 96AA(3): [5.2240) s 96AB: [5.2220) s 97: [5.2000], [5.2230], [6.340] s 97(1): [5.1020] s 97(1)(a): [5.2250] s 97(1)(6): [5.2250] s 97(2): [5.1020) s 97(3): [5.1020] s 97(4): [5.1020) s 97(7): (5.1030], (5.2230], [5.2290] s 97A(l): [5.2270] ss 97A(2) to (4): [5.2270] s 97A(4): [5.2270] s 97AA: [5.2230], [5.2400] s 97AA(a): [5.2250] s 97AA(6): [5.2250] s 98: [5.970], [5.2280], [6.340], [14.420] s 98(1): [5.1020], [10.440] s 98(4): [5.2750] ss 98(4) to (5): (5.2290] s 98(5): [5.330), [5.1030], [5.2750] s 99: [5.2470] s 100B: [5.370] s 101: [2.510], [5.2630], [5.2640], [5.2650] s 102: [5.1170], [5.2620] s 102(c): [5.1170] s 103: [5.2660] s 104: [5.2660) s 106: [3.210], (5.420], [5.480], [5.530] s 106(a): [5.420], [5.440] s 107(1): [5.420], [5.450] s 107(2): [5.420) s 107(2)(6): [5.500] s 107(2)(e): [5.450) s 107(3): [5.450] s 108: [5.460) s 109: [3.210], [5.550] s 109(1): [5.540], [5.550) s 109(2): [5.550] s 109(2)(e): [5.560] s 109(3): (5.550), (5.560) s 109B: [5.510], [5.530] s 109C(l): [5.1780) s 109C(l)(a): [5.1870] s 109C(l)(b): [5.1790) s 109C(l)(c): [5.1820] s 109C(4): [5.1820] s 109D(l): [5.1780) s 109D(2): [5.1860] s 109D(3): [5.1860]

s 109E(l): [5.1860] s 109E(3): [5.1860] s 109E(3)(d): [5.1860] s 109F(l)(a): [5.1800) s 109H(lB): [5.1820] s 109H(3): [5.1830) s 109H(4): [5.1830) s 109H(5): [5.1830] s 109H(6): [5.1830) s 109J(l): [5.1850] s 109J(2): [5.1850] s 109K: [5.2300] s 109K(3): [5.2300] s 1091: [5.1860] s 1091(1): [5.2590] s 1091(2): [5.1860], [5.2590] s 1091(3): [5.1860] s 109M: [5.1820] s 109M(2): [5.1840] s 109N: [5.1820) s 109R(l): [5.900] s 109R(2): [5.900) s 109R(3): [5.900] s 109R(4): [5.900] s 110: [6.30], [6.80), [6.120], [6.130] s 110(1): [6.90] s ll0(l)(i): [6.50], (18.530] s 110A: [6.140] s 110A(2): [6.140], [6.200), [6.290] s 110A(3): [6.140] s ll0C: [6.170], [12.500) s ll0E: [6.90] s 111: [6.140], [6.160], [6.170], [6.180], [6.210], [6.350] s 111(1): [6.170] s 111(2): [12.1150] s 111(2)(d): [12.1250] s 111(4): (6.170), [12.1150], [12.1160] s 111(4)(a): (12.500) s 112: [6.190], [6.200] s 112(1): [6.190], [6.200], [6.220] s 112(1)(a): [6.200] s 112(1)(a)(i): [6.250] s 112(1)(6): [12.1170] s 112(1B): [6.190], [6.220), [12.500], [12.1160] s 112A: [6.170], [12.1160] ss 112B - 112E: (12.1180] s 112C(1): [6.340], [12.500] s 112C(3): [6.340] s 112D(l)(c): [12.1170] s 113(1): [6.290], [12.1170] s 113(2): [6.290], (12.1170) s 113(3): (6.300] s 113(5): (6.300] s 113(6): [6.300] s 113(8): (6.290], (12.1170]

Environmental Planning and Assessment Act 1979 - cont s 114(a): (6.300] s 1151: [19.570] s 115J(1): (19.580] ss 115J(3): [19.580] ss 115J(4): (19.580) s 115K(1) - (3): (19.580] s 115M: [19.580] s 115N(2A): (19.580] s 115N(1): (19.580] s 1150: [19.590] s 1150(2): (19.590] s 1150(4)(6): [19.590] s 115P: (19.590] ss 115R(1)- (3): [19.570] s 115T: (5.2760] ss 115T to 115ZM: [3.380] s 115U(2): [5.2760] s 115U(3): (6.310] s 115U(4): [5.2760] s 115V: [5.2780] s 115W: [5.2760] s 115Y: (12.1190] s 115Y(1): [5.2760] s 115Y(2): [5.2760], [6.190] s 115Y(3): (5.2760], (12.1190] s 115Z: [5.2760] s 115Z(1): [6.250) s 115Z(3): [6.290] s 115Z(6): (5.2760] s 115Z(7): [5.2760] s 115ZA: [5.2760] s 115ZC: [12.1250] s 115ZD: [5.2760) s 115ZF(1): (5.2760) s 115ZF(2)(a): (5.2760] s 115ZF(4): [5.2780] s 115ZG: (5.2770] s 115ZG(l)(a): [14.730] s 115ZG(l)(b): (19.900], (19.960] s 115ZG(l)(c): [17.290] s 115ZG(l)(e): [12.1460] s 115ZG(3): [5.2780] s 115ZG(3)(a): (12.680] s 115ZG(3)(6): (12.670] s 115ZG(3)(c): [12.690] s 115ZG(3)(d): (9.920] s 115ZH: (5.2770] s 115ZH(l)(a): [19.710] s 115ZH(l)(e): (9.700], [9.740] s 115ZH(2)(c): [9.700] s 115ZJ(l): (5.2770] s 115ZJ(2): (5.2770] s 115ZK: [5.2780] s 115ZM(a): [12.1190] s 115ZM(e): [12.1190] s 117: (3.40], [3.310], [3.330],

[3.340], [3.350], [3.630], [14.100], [14.880], [14.1300) s 117(2): [3.320], [5.340], [14.120], [17.610] s 117(5): [3.330], [3.630] s 121B: [5.1860], [5.2560], [5.2590), [5.2610], [5.2780], [17.110] s 121B(1): [5.2550] s 121B(1)(6): [5.2550] s 121H: [5.1860], [5.2560] s 1211: [5.2560) s 121K: [5.2560] s 1211: [5.2560], [5.2580] s 121M: [5.2560] s 121N: [5.2560] s 121ZJ: [5.2570] s 121ZK: [5.2560] s 122: [2.690], [5.370] s 122(b)(vi): [5.2190] s 123: [2.690], [2.880], [2.950], [3.610], [5.2020], [5.2190], [5.2280], [5.2510], [5.2530], [5.2540], [5.2620], [6.360], [12.1030], (13.450], (18.610] s 123(1): [6.200] ss 123 to 124: [5.2510] s 124: [2.700], [5.2030), [5.2670] s 124(1): [5.2510] s 124(2): [5.2510] s 124(3): [5.2520] s 125: [2.690], [5.2500] s 125(1): [12.1030) s 125(2): [5.2500] s 125A: [2.690], [5.2500) s 125B: [2.690], [5.2500] s 125C: (2.690], [5.2500] s 125D: [2.690], [5.2500) s 126: (2.690), [12.1530], [13.980] s 126(1): [12.1030] s 126(2A): [5.2500] s 126(3): [5.2500], [12.1030) s 1261: [12.1310) s 127(3): [5.2500) s 127(7): [2.690), [5.2530) s 127(8): [2.690], [5.2530] s 138: [5.370] s 144: (5.370] s 145B: [9.2890) s 149: [3.710], [3.730], [3.760], [9.2790], [14.220), [17.260) s 149(5): [3.730), [3.740) s 149(6): [3.740) s 149A: [5.2600) s 149D: [5.2600] s 149D(2): [5.2600)

s 149D(5): [5.2600) s 149E(l): [5.2610) s 149E(2): [5.2610] s 149E(3): [5.2610) s 149F(l): [5.2600) s 149F(2): [5.2600] s 201: [5.370] s 205: [5.370], [5.2740] s 219: [5.370], [5.2740) s 342ZA: [5.1150), [5.1160) s 342ZA(5): [5.1150] s 342ZA(7): [5.1150] Ch 6, Pt 2, Div 5: [5.1930] Pt 2, Div 1: [3.420) Pt 2, Div 2: [3.420] Pt 2, Div 3: [3.420] Pt 2, Div 5: [3.520) Pt 3: [2.510], [3.420), [5.60), [5.1310), [16.320], [16.360) Pt 3, Div 4B: [3.370) Pt 3A: [1.150], [2.420], [2.910), [3.420], [3.460], [3. 710], [5.350], [5.2690], [5.2700], [6.30], [7.640], [7.700], [12.370], [14.620], [18.430], (18.480] Pt 4: [1.50], [1.210], [2.510], [3.420], [3.460], [5.20], [5.60], [5.280], [5.490], [5.570], [5.830), [5.840], [5.920], [5.1780], [5.2690], [5.2720], [5.2760], [6.20], [6.30], [6.40), [6.80], [6.190], [6.220], [6.240], [6.250], [6.290], [7.640], [9.700], [12.3 70], [12.5 30), (12.560), (12.630], [12.890], [12.1070], [12.1150], (12.1160], [12.1180], [12.1190], [12.1240), [12.1250], [12.1320), (12.1360], [12.1370], [12.1460], [12.1470], [13.360], [13.940], [14.620], [14.800], [14.950], [14.1260], [16.320], [16.360], [18.120], [18.430), (18.490], [18.520), [18.600], [20.730] Pt 4, Div 1: [5.270] Pt 4, Div 2A: [5.770] Pt 4, Div 4: [5.880] Pt 4, Div 4.1: [1.50], [5.2700], [9.2870] Pt 4, Div 6: [5.1880], [5.2060] Pt 4, Div 6A: [5.1880]

l Ol?

1Q18 The Environmental Law Handbook --Environmental Planning and Assessment Act 1979 - cont Pt 4, Div 10: [5.410], [18.430] Pt 4.1: [18.120] Pt4A: [3.420], [5.20], [5 .1780] Pt 5: [1.50], [2.510], [3.420], [3.460], [3.470], [5.20], [5.290], [5,300], [5,900], [5.2690], [6.20], [6.30], [6.40], [6.50], [6.60], [6.70], [6.80], [6.90], [6.100], [6,110], [6,120], [6.130], [6.140], [6,150], [6,160], [6,170], [6,180], [6.190], [6.210], [6,220], [6.240], [6.250], [6.260], [6.290], [6.300], [6.310], [6.360], [7.640], [10.430], [11.950], [12.370], [12,530], [12.560], [12.570], [12,630], [12.670], [12,890], [12.1150], [12.1160], [12.1170], [12.1180], [12.1240], [12.1250], [12.1320], [12.1460], [13,330], [13,360], [14.350], [14.1210], [14.1390], [17.300], [18.120], [18,520], [18.530], [18.1120], [18.1130], [19,570], [20.820] Pt 5, Div 5: [19.570] Pt 5.1: [1.50], [3.460], [3.470], [5.20], [5,570], [5.2700], [5.2760], [6.20], [6.30], [6.40], [6.80], [6,190], [6.250], [6,290], [6,310], [6.330], [9,920], [12,560], [12.1460], [13.360] Pt SA: [3.420] Pt 6: [2,510], [3.420] Pt 6, Div 2A: [3.670] Pt 6A: [3.460] Pt 7: [3.420] Pt 7A: [12. 1250] Pt 8: [3.420] Sch 1: [3.460] Sch 2: [3.460] Sch 3: [3.460] Sch 4: [3.460], [3.730] Sch 4A: [5.830], [14.630] Sch 4A, cl 3: [5.830] Sch 4A, cl 6: [5.830] Sch 4A, cl 8: [5.830] Sch 4A, cl 9: [5.830] Sch 5: [3.460] Sch 6A: [5.2700] Sch 6, cl 120: [3.40] Sch 6, cl 121: [3.40]

Table of Statutes Environmental Planning and Assessment Amendment Act 1997: [1.150], [5.100], [5.130] Environmental Planning and Assessment Amendment (Building Sustainability Index (BASIX)) Regulation 2004: [3.440] Environmental Planning and Assessment Amendment (Gateway Process for Strategic Agricultural Land) Regulation 2013: [18.470] Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005: [1.150], [18.430], [18.1090] Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011: [5.40], [5.2700] Environmental Planning and Assessment Regulation 1994: [6.190] cl 5(1)(c): [12.1120] ell 8 - 9: [12.1120] cl 9A: [12.1320] cl 78(1): [12.1120] cl 87(6): [12.1120] cl 89: [12.1120] cl 91: [12.1120] cl 92(1)(a)(ii): [14.560] Sch 2: [12.1120] Environmental Planning and Assessment Regulation 2000: [2.690], [3.10], [5.10], [5,130], [5.480], [5.610], [5.620], [5,640], [5.660], [5.730], [5,970], [5.1050], [5.1060], [5.1100], [5.1170], [5.1330], [5.1530], [5.1610], [5.1620], [5.1790], [5.1800], [5.1840], [6.10], [6.90], [11.150], [18.430], [18.470], [18.1130] cl l(lB): [5.740] cl 1.3: [5,290] cl 1.4: [5,190] cl 1.9(9): [5,290] cl l(AB): [5.740] cl 2: [18.1290] cl 3: [14.930] cl 4: [14.570], [18.1210] cl 4(1): [5,340] cl 5: [14.530] cl 5(1): [5.1050] cl 5(1)(6): [5.1060] cl 6(d): [18.1100] cl 7: [14.920], [18.1290]

cl 7(2)(a): [18.1100] cl 7(3): [18.1330] cl 7(3)(a): [18.1280] cl 7(3)(6): [18.1280] cl 7( 4 ): [14.460] cl 7(5): [14.480] cl 8F(l): [18.600] cl 8K: [18.430] ell 8 to 11: [18.1200] cl 10: [14.930], [18.1290] cl 12: [14.530] cl 13: [14,930] cl 15: [14.930] cl 17: [5.2340] cl 18: [14.1390] cl 18A: [18.1330] cl 19: [18.1320] cl 20: [18.1290] cl 21: [11.60] cl 21(3): [14.930] cl 22: [14.930] cl 250: [5.2180] ell 25F to 25G: [5.2180] ell 25F to 25H: [5.2180] cl 251: [5.1950] cl 25]: [5.2090] cl 251(1): [5.2090] cl 25](3): [5.2090] cl 25K: [5.2080] cl 26(2): [5.2010] cl 27: [5.2010], [14,930], [18.1130] cl 27(1)(h): [5.2010] cl 27(3): [5.2020] cl 28: [5.2010] cl 29: [14.930] cl 31: [5.2010] cl 32: [14.930] cl 34(1): [5.2040] cl 35: [5.340], [5.2100] cl 35(1): [5.2040] cl 35(3): [5.2040] cl 36: [5.340], [5.2040] cl 41(1)(d): [5.480] cl 41(1)(e): [5.480] cl 41(1)(£): [5.480] cl 41(2): [5.480] cll 41 to 44: [5.470] cl 42(2)(6): [5,500] cl 43(2)(6): [5.500] cl 44(2)(6): [5,500] cl 45: [5.480] cl 49(1): [5.650], [18.600] cl 49(2): [5,650], [18.600], [18.1090] cl 49(3): [5.650] cl 49(3A): [5.650] cl 49(4): [18.600], [18.1090] cl 49(5): [18.600] cl 50(1): [5.680] cl 50(l)(a): [5.680]

Environmental Planning and Assessment Regulation 2000 - cont cl 50(1A): [5.740] cl 50A: [18.470] cl 51(1): [5.660] cl 51(2): [5.660] cl 51(2)(6): [12.1080] cl 51(3): [5.660] cl 55: [5.670] cl 62(1): [5.860] cl 63: [5.850] cl 64: [5,850] cl 66: [18. 730] cl 66(2): [5 .370] cl 67: [5,370] cl 68: [14.1390] cl 69: [14.1390] cl 70(1): [5.390] cl 70(3): [5.390] cl 78: [5,970] cl 79: [5.970] cl 79(1)(e): [5.970] cl 79(6): [5.980] cl 79B(11): [5.860] cl 79C: [5.1530] cl 80: [5.970] cl 80A(10B): [5.1610] cl 80A(4): [5.1590] cl 84: [18.630] cl 87(6): [5.1100] cl 89(1)(d): [5.1100] cl 89(1)(e): [5.1100] cl 89(1)(£): [5.1100] cl 89(3)(6): [5.1100] ell 98 to 98E: [5.1620] cl 92: [5.1330], [14.100], [14.230] cl 95(1): [5.1530] cl 92(2): [5.1530], [14.80] cl 95(3): [5.1530] cl 96: [5.1580] cl 97A(2): [5.620] cl 98: [5,620] cl 98B: [5.620] cl 100(1)(c): [5.2260] cl 109: [5.390] cl 109F(1A): [5.1790] cl 109F(l)(a): [5.1800] cl 113: [5.2240] cl 113B(l): [5.890] cl 113(B)(2): [5.890] cl 115(1): [5.2320] cl 117: [5.2390] cl 118: [5.2390] cl 119(2): [5.2390] cl 119(3): [5 .2390] cl 120: [5.2350] cl 121: [5.2390] cl 123H: [5.2220] cl 123H(l): [5.660] cl 123H(3): [5.660]

cl 1231: [5 .2220] cl 124: [5.2630] cl 124B(l): [5.1610] cl 126(1)(a): [5.610] cl 130(4): [5.610] cl 130AA: [5.610] cl 130AB: [5.610] cl 131: [5.620] cl 132: [5,620] cl 145(1)(a): [5.1790] cl 145(1): [5.1800] cl 145(1)(a): .[5.1800] cl 145(1)(al): [5.1790] cl 145(1)(6): [5.1790] cl 145(2): [5.1790] cl 146: [5.1790] cl 156: [5.1840] cl 162A: [5.1860] cl 164A: [5.730] cl 224K: [10.430] cl 226: [5,880] cl 227: [5.900] cl 228: [6,170], [6.210] cl 234: [6,290] cl 244: [6.340] cl 267: [5.590] cl 268R: [5.920] cl 268V: [6.300] Pt 1: [5 .340] Pt 7, Div 2A, ell 136A to 136N: [5.640] Sch 1: [18.1290] Sch 1, cl 2A: [5.730] Sch 1, Pt 1: [5.680], [12.1070] Sch 1, Pt 2: [5.340], [5.610] Sch 1, Pt 3: [5.340] Sch 2: [6.260], [6.270], [6.290], [18.1240], [18.1290] Sch 3: [5.340], [9.2450], [11.60], [14.490], [14.570], [14,930], [14.1260], [14.1310], [18.510], [18.1290], [19.780] Sch 3, cl 1: [11.60] Sch 3, cl 3: [11.60] Sch 3, cl 11: [14.570] Sch 3, cl 13: [14.570] Sch 3, cl 22: [11.60] Sch 3, cl 29: [14.570] Sch 3, cl 35: [5.340] Sch 3, cl 37A: [5.340] Sch 3, cl 38: [14.570] Sch 3, Pt 1: [5.340], [19.780] Sch 4: [3.710], [3.740], [14.790] Sch 4, item 7: [14.920] Sch 4, item 7A: [14.920] Sch 4, cl 1(3): [14.220] Sch 4, cl 4: [14. 790] Sch 5: [18.1290] Sch 6, cl 95: [14.260]

Environmental Trust Act 1998: [9.2900] s 6: [9.2900] s 7: [9.2900] s 19: [9.2900] Environmentally Hazardous Chemicals Act 1985: [1.80], [9.280], [9,300], [9,310], [9.320], [9.2560], [11.840], [11.850] s 3(1): [9,290], [9,320], [9.2560], [9 .2570], [9 .2590], [9.2620] s 7(1)(d): [9.2560] s 10: [11.850] s 10(1): [9.2560] s 11: [11.850] s 13: [9.2620] s 13(1): [9.310], [9.2620] s 15(1): [9.310], [9.2620] s 15(2): [9,290], [9.310] s 16: [9.2620] s 17: [9 .290] s 17(1): [9.2620] s 17(2): [9.2630] s 17(3): [9.2620] s 18: [9.290] s 19: [9.290], [9.2620] s 20: [9.290], [9.2640] ss 20 - 24: [11.850] s 20(d): [9.2640] s 21: [9.2650] s 22: [9.290], [9.2590], [9.2640] s 22(1): [9.2570] s 22(2): [9.2570] s 23: [9,290], [9.2640] s 24: [9,290], [9.2590], [9.2640] s 24(1): [9.2590] s 24(2): [9.2640] s 25: [9.2600] s 26: [11.850] s 27: [9.2620] s 28(2): [9.2610] s 28(4): [9.2610] s 29: [9.2610] s 30: [9.2610] s 31: [9.2610] s 32(1): [9.2610] s 37(1): [9.2630] s 37(2): [9.2630] s 38: [9,300], [9.2600] s 38(1): [9.2650] s 38(2): [9.2650] s 39: [9.2610] s 42: [9.2600] s 42(1): [9.2610] s 54: [9.2660], [11.850] Environmentally Hazardous Chemicals Act 1987: [9.2660]

1Q19

l

020

Table of Statutes

The Environmental Law Handbook Environmentally Hazardous Chemicals Regulation 2008: [11.840) cl 7: [9.2630) cl 8: [9.2630] Filming Approval Act 2004: [2.520], [4.440) Fines Act 1996: [9.1480] s 19A: [9.1480] Firearms Act 1996: [13.620) Fisheries Act 1865: [19.30] s 2: [19.30] Fisheries Act 1881: [19.30] Fisheries Act 1902: [19.30] Fisheries Management Act 1994: [1.110], (1.180], (1.210], [5.370), (5 .2740], (8.230], (12.260], (12.360], (12.420], (12.540], [12.880], (13 .370], (13.790], (14.530], (14.1240], (14.1390], (18.1190), [19.10], (19.30], [19.40], (19.100], (19.120], [19.230], (19.240], [19.290], (19.300], (19.370], [19.570], [19.780], (19 .900) s 2: [19.120) s 3(1): [19.40) s 3(2)(a) : [19.50] s 3(2)(6): [19.50] s 3(2)(c): [19.50) s 3(2)(h): [19.300) s 4: [19.150), (19.740] s 4(1): (19.300] s 7(l)(a): (19.100] s 7(1)(6) : (19.100] s 7(1)(d): [19.200] s 7A: (19.570] s 8: (19 .130], (19.230], (19.600], [19.970] s 14(1): [19.150] s 14(2): [19.160] s 14(3): [19.130] s 15: [19,970] s 16(1): [19.160] s 16(2): [19.160] s 17: (19 .970] s 17(2): [19.150] s 17(2A): [19.150] s 18(1): [19.160] s 18(2): [19.160) s 18(2A): [19.160] s 18(2B): [19.160] s 19: (19.140], (19.160], [19.970) s 19(2): [19.150] s 19(3): (19.160) s 20: (19.130], (19.970] s 20(2): (19.230]

s 20(3) : [19.150] s 20(3)(a): [19.150] s 20A: [19.130) s 20A(3): [19.150) s 20A(3)(a): [19.150] s 20A(3)(6): [19.150] s 21: [19.140] s 21(2): [19.140) ss21A-21C: [19.170] s 22: [19.360) s 23: [19.360) s 24: [19.970] s 25(1): [19.360] s 25(2): [19.360) s 25(3): [19.360] s 25(4): (19.360) ss 26-34: [19.970] s 30: [19.60], (19.520] s 30(1): (19.80) s 30(2)(c): (1.210] s 34C(2): (19.220] s 34C(2)(f): [19.220], (19.290] s 34E: [19.210] s 34](1): (19.210] s 34](2): (19 .210] s 34](3): [19.210] s 34N: (19.500] s 340: (19.380] s 340(1): [19.500] s 340(4): [19.500) ss 34Q - 34S: [19.550] s 35: (19.160], [19.830] s 35(1): [19.160) s 36: (19.830] s 36(1): (19.150] s 37: (19.180), (19.300], [19.330] s 37(1)(cl): [19.300] s 38: (19 .240) s 40: [19,180], (19.840] s 41: [19.430], [19.470], [19.840] ss 41-101 : (19.970] s 41(c): (19.440] s 41(d): [19.440] s 41A: [19.380] s 43 : [19.470] s 43(1): [19.430] s 45A(2): [19.390] s 47: [19.430] s 48: [19.430] s 49: [19.430] s 49(2): [19.420) s 50(2): [19.430] s 50(3): [19.480] s 51: [19.430], [19.480), [19.890] s 51(2): [19.480] s 51(5): [19.480] s 54(1): (19.850] s 54(3): (19.850) ss 56 - 65: [19.450) s 58: (19.470) s 66: (19.420)

s 66(a): [19.420) s 69: [19.420] s 70: [19.420) s 71(1): [19.380] s 71(3 ): [19.380) s 72(2): [19.400] s 73: [19.380) s 73A: [19.380], [19.390) s 75: [19.420) s 75(2): [19.650] s 76: [19.410) s 76(2): [19.410] s 76(4): [19.410) s 76(4A): [19.410] s 77: [19.410] s 77(4): [19.410] s 77A: [19.410] s 77A(4): (19.410] s 78(2): (19.490] s 78(3 ): (19.490] s 81(1): (19.460] ss 82 - 88: (19.440] ss 89 - 101: (19.380] s 102(1): [19.320] s 102(2): (19.320] s 103(2): [19.330] s 104(4)(a): (19 .330] s 104(4)(d): [19.330] s 104(7): [19.330) s 107(1): (19.350) s 109: [19.350] s 110(1): [19.350] s 110(2): [19.350] s 110(5): [19.350) s 111: [19.510] s 111 - 116: (19.970] s 112: (19.510) s 115: [19.510] s 115A(l): (19.330) s 117: [19.530] s 117(2): (19.530] s 119(1): (19.530] s 119(2): [19.530) ss 121 - 123: [19.540) s 123A(l): [19.540] s 123A(5)(6): [19.540) s 126: [19.80] s 127A: [19.260] s 127B(l): [19.260] s 127£: [19.260] s 142(a): [19.680] s 142(c): (19.680] s 142(d): [19.680) s 143: (19.690] s 143(3): [19.690) s 143(4): (19.690] s 143(5): (19.690] s 143(8): (19.690] s 144: (5.2740), (14.580] s 144(1): (19.700) s 145(1): (19.700)

Fisheries Management Act 1994 - cont s 145(3): [19.700] s 146: [19.710) s 146(4): [19.730] s 147(1): [19.700) s 147(3): [19.700] s 149: [19.700) s 151: [19.700) s 152: [19.720) s 152(3): [19.720) s 156: [19.720] s 160(5): [19.730) s 161(1): [19.720) s 161(3): [19.720) s 162: [19.720] s 163(1): [19.740] s 163(3): [19.740] s 163(5): (19.740] s 164(1): (19.750] s 164(2): (19.750] s 164(3): (19.750] s 165: (19 .740] s 166: (19 .740] s 168: (19 .740) s 168(3): (19.740] s 177(4): (19.730] s 179(1)(a): (19. 750] s 182: (19.770) s 182A: [19.770) s 183(1): [19.770] s 184: [19.770) s 185: [19.770) s 186: (19.770) s 192: (19.810), [19.970] s 193: (19.810) s 193(3): (19.810) s 193(4): (19 .810] s 198: (14.1350] s 198A: (14.1350] s 198B: (14.1350) s 200: [14.1370] s 200(2): [14.1360] s 201: [5.2740), [14.580), [14.1350] s 201(1): [14.1370] s 201(2): [14.1360] s 202: [14.1350) s 203(1): [14.1370] s 203(2): [14.1370] s 203(3): [14.1370) s 203(4): (14.1370] ss 204 - 205A: [19.970) s 204A: [19.960) s 204B: [19.960] s 205: [12.1390), [14.580], (19.960) s 205(2): (19.960] s 205A: [19.960) s 206: (19.900] s 207: (19.900]

ss 209 - 209B: [19.900) s 209C: [19.900] s 210: [19.900) s 212: [19.720) s 213: [19.900) s 216(1): [19.900) s 216(2): [19.900) s 217(1): [19.900) s 217A(l): [19.900) s 218: [19.900) s 219: [14.1240), [19.900] s 219(5): [14.1240) s 220A(a): [19.910) s 220B: [19.950] s 220B(l): [19.920], [19.930] s 220BA: [19.910] s 220BA(l)(a): [19.920] ss 220C - 2200: [19.910] s 220FA: (19.920] s 220FB: (19.920] s 220FC: (19.950] s 220G: (19.910] s 220H: (19.910] s 2200: (19.970] s 220P: [19.890] s 220T: (19 .890) s 220V: (19.890] s 220W: [19.890] s 220Y: [19.890) s 220ZA: (19.930] ss 220ZH- 220ZV: [19.910) s 220ZJ: [19.950) s 220ZN(2): (19.950) s 220ZT(2): (8.160) s 220ZW: [19.940) s 2210: [19.940) s 2211A: (19.580] s 221ZA: (19.910] s 221ZB: (19.910) s 222B: (19.190] s 223: (19.190] s 225: [19.190] s 229: [19.190), [19.300) s 230: [19.190] s 233: [19.190] s 241(2): [19.310] s 242: [19.620) s 244: [19.620] s 248: [19.620] s 249: [19.620] s 250: [19.620) s 250(1): (19.630] s 251: [19.620) s 252: [19.620) s 255: (19.620), [19.630] s 256: (19.620) s 257: (19.620) s 258: (19.620) s 258A: [19.620] s 261: (19.620) s 262: (19.620)

s 263: [19.620] ss 264 - 267: [19.620] s 265: [19.650) s 269: [19.650) s 275B: [19.640] s 276: [19.650) s 276(5): [19.650) s 282: [2.880], [19.660) s 282A: [14.1390) s 282C: [19.650] s 282C(2): [19.650] s 284: [19.470) Pt lA: [19.560] Pt 3: [19.380), [19.890) Pt 4A: (19.260] Pt 6: [19.670] Pt 7: [19.810] Pt 7, Div 3: [14.1350] Pt 7A: (8.160], (12.420), (12.480), (12 .1320], (13.370], (19.810], (19.910], (19 .960) Pt 7A: [12.1100] Pt 8: (19.190] Pt 9: [19.620] Div 4B: (19.500) Sch lA: [19.570) Sch lB: [19.150] Sch lC: [19.170] Sch 4: [19.910], [19.920) Sch 4, Pt 2: (19.920] Sch 4, Pt 3: (19.920) Sch 5: [19.920) Sch 6B: [19.770) Sch 6C, Pt 1: (19.900] Sch 7A: (12.530] Fisheries Management Amendment Act 2009: (19 .300) s 21AA: (19.300], (19.310] s 21AA(8): [19.300] s 37(8): (19 .300] Fisheries Management (Aquaculture) Regulation 2012 cl 4: [19. 700] cl 15: [19.740] Fisheries Management (General) Regulation 2010: [), [19.140), [19.180], [19.220], [19.340), [19.360] cl 5: [19.160] cl 5A: (19.910] cl 9: [19.230) cl 11(3): [19.140] cl 46(1): [19.210) cl 46(1)(a) - (6): [19.210) cl 46(1)(c): (19.210) cll 57 - 58: (19.180) cl 62: (19.360) cll 62 - 63: [19.180) cl 63: (19.360]

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The Environmental Law Handbook Fisheries Management (General) Regulation 2010- cont ell 65 - 69: [19.180] ell 70 - 74: (19.180] cl 75: [19.180] cl 79: (19.220] cl 80(1)(a): [19.220) cl 80(1)(6): (19.220) cl 80(1)(c): [19.220) cl 80(2): (19 .220) cl 125(a): [19.330] cl 125(6): [19.330] cl 125(c): [19.330] cl 128(a): [19.420] cl 129: [19.330] cl 131(a): [19.420] cll 132 -133: [19.330] cl 138: [19.350] cl 138(1)(6): [19.180] cl 138(1)(c): [19.350] cl 138(1)(d): [19.350] cl 138(1)(g): [19.350) cl 138(1)(h): [19.350] cl 138(l)(i): [19.350) cl 138(1)(j): [19.350) cl 138(2): [19.350) cl 144: [19.340) cl 146: [19 .180) cl 148: [19.350] cl 150: [19.350) cl 151: [19.350] cl 155: [19.510] cl 168: [19.510] cll 215 - 220: [19.540] cl 216(4): [19.540] cl 218: [19.540] cl 223: [19.260] cl 225: [19.260) cl 226: [19.260] cl 238: [19.260] cl 263: [14.1350) cll 270 - 283: [19.910] cl 289: [19.300) Pt 3: [19.360) Sch 3: [19.230) Sch 6: [19.230] Sch 8: [19.330)

Fisheries and Oyster Farms Act 1935: [19.30), [19.370) Forestry Act 1916: [12.830), [12.1020], [13.140], [13 .220] Forestry Act 2012: [1.110], [2.880], [4.100], [4.170], [4.500], [4.580], [11.220), [13.140), [13.170), [13.180], [13.190], [13.360), [13.390), [13.410), [13.450], [13.480], [13 .520], [13.580), [13.590], [13.640], [13.670), [13.680], [13.690), [13.810], [18.300], [18.310]

s 3: [13.180], [13.220], [13.660] s 4: [13.670], [13.700] s 5: [13.140] s 5(1): (13.670] s 5(2): [13.670] s 5(4) : [13.670] s 6: (13.150), (13.680], (13. 730) s 6(1): (13.730) s 7: [13.120), [13 .150], [13.670], (13 .810] s 8: [13.120], [13.940) s 9: [13.120], [13.680], [13.700], [13.940] s 9(2): [13.720], [13.730] s 10: [13.160], [13.520], [13.930) s 10(1): [13.520] s 10(1)(a}: [4.580] s lO(l)(c) : [4.580), [13 .940) s lO(l)(e): [4.580] s 10(2): [13 .160), [13 .520) s 10(3): [4.580], [13.160) s 11: [13.170], [13.520], [13.700] s ll(l)(e): [4.580) s ll(l)(g): [13.1040) s 12: [13.120], [13 .140], [13.700) s 12(1): [13.940] s 12(3): [13.700] s 13: [13.680], [13 .740] s 13(5): [13 .750] s 14: [4.170), [13.120), [13.190), [13.680], [13.750) s 14(1): (4.180), [13.700] s 14(2): [13.200), [13 .750] s 14(4): [13.190] s 15: [4.200), [4.230), [13 .120], [13.190], [13 .240), [13.750], [13.790] s 15(4): [13.750] s 15(9): [13.720) s 16: [4.110], [4.170], [13.190), [13.210) s 16(1): [4.180] s 16(4): [4.200], [13.210] s 18: [13 .120), [13.230) s 18(1): [4.170], [4.180] s 19(2): [13 .230) s 19(4): [13.230) s 20: [13.750) s 20(3): [13.700) s 21 : [13.250) s 21(1): [4.500) s 22: [13.250] s 23: [13.700) s 24: [13. 710) s 25: [13.210) s 25(1): [4.500] s 25(4): [4.590] s 26: [13.240) s 29: [13 .220), [13 .930) s 31: [13.240) s 32: [13.930)

s 32(2): [13.230] s 33: [13. 780] s 34: [13. 780] s 35: (13 .580], (18.300] s 35(1): [13.600], [13.780] s 35(3): [18.300] s 36: (13 .780) s 36(1): (13.230) s 38: [13 .180) s 38(1): (13.490) s 38(1)(a)(ii): [13.490) s 38(1)(6): [13.490] s 38(3): [13.180] s 38(4): [13.490] s 39(2): [13 .810] s 40: [13.490] s 41: [13.490] s 42: [13.490), [18.1340) s 43: (13.480], [13.500) s 43(d): [13.460) s 44(1): [13.540) s 44(2): [13.480], [13.540] s 44(2)(d): [13.540] s 45: [13 .510) s 47(1): [13 .700) s 47(2)(a): [13.700] s 48: [13.790) s 49: [13.570], [13.790) s 50: [13.790) s 51: [13 .790] s 52: [13.790) s 53: [13.570), [13.790] s 57: [13.640) s 58: [13.1050] s 59: [4.580), [13 .160) s 59(3): [4.580] s 60: [13.580] s 61: [13.580] s 61(2): [13.580) s 62(1): [13.580) ss 62(3) to (6): [13.580) s 64: (13.460], (13.700] s 65: [13.700] s 68(1): [13 .620) s 68(2): [13.620) s 69A: [13.310], [13 .320] s 69B: [13.310] s 69B(4) : [13.310) s 69C: [13.340) s 69D: [13.430] s 69D(3): [13.320) s 69F: [13.430] s 69G(3}: [13.440] s 69G(4): [13.440] s 69G(5) : [13.440] s 69H: [13.440) s 691: [13.440) s 69K(2)(b): [13.810) s 69L(b): [13.350) s 69N: [13.350) s 690: [13.310), [13.320)

Forestry Act 2012 - cont ss 690(3) to (5): [13.320] s 690(4): [13 .330] s 69Q: [13.360], (13.400] s 69R: [13.370], (13.420] s 69S: [13.640] s 69T: [13.350], (13.370) s 69U: [13.370) s 69V: [13.370) s 69W: (13.360] s 69W(2A): [13.360) s 69W(2): [13.360] s 69X: [13.360], [13.390] s 69X(2): [13.390] s 69Y: [13.390] s 69Z: [13.390] s 69ZA: [13.450] s 69ZA(2): [13 .640] s 69ZA(3): [13 .640) s 71: [13.630) s 83(1)(c}: [13.630] s 83(2)(a): [13 .630) s 84(1): [13 .590) s 84(2) : [13.590] s 84(3): [13.590) s 85: [13.590], [13.630] s 86: [13.590) s 89(1): [13.580], [13.640] s 93: [13.640) s 98 : [13 .1070] s 118A: [13.380) s 118C: [13.380) s 118D: [13 .380] s 122: [13.460) ss 147 to 153: [13.460) s 148: [13.460] s 152: [13.460] Pt 3: [13.170) Pt 5: [4.580] Pt 5A: [5.200], [13 .310), [13.340) Pt 5B: [13.400], [13.450], [13 .810], [13.1070) Pt 8A: [13.870) Sch 1: [13 .180], [13.460), [13.670) Sch 1, cl 5: [13.1050) Sch 2: [13.1050)

Forestry Regulation 2012: [13.170), [13 .190), [13.630) cl 4: [13.630) cl 5: [13.630] cl 5.9: [13.990) cl 6: [13.630] cl 7: [13 .630) cl 8: [13 .630) ell 9 to 20: [13.580] cl 10: [13.630) cl 11: [13 .630] cl 21: [13.580), [13.630] cl 21(a) : [13.930)

cl 22: [13.930] cl 23: [13.930] cl 27: [13.580] cl 31: (13.580] cl 34(1): (13.530] cl 34(2): [13.530) cl 36: [13.530) cl 39: [13.920) cl 40: [13.920) cl 41: (13.920) cl 43: [13.920) cl 47: [13.630], [13 .930] cl 48: [13 .930] cl 49: [13.920] cl 51: [13.250] cl 52: [13.190], [13.210] cl 53: [13.250] cl 56: [13 .630) cl 58: [13.930) cl 61: [13.930) cl 74(4): [13.930) Sch 1: [13.630] Sch 3, cl 6: [13. 720) Sch 3, cl 8(1): [13.220] Forestry and National Park Estate Act 1998: [13.170], [13.270), [13.280], [13.290], [13 .300], [13.310], [13.360], [13.400] Game and Feral Animal Control Act 2002: [13.620] s 5: [13.620) s 16: [13.620) s 17: [13 .620) s 19: [13.620) s 20: [13.620) s 21: [13 .620] Gene Technology (GM Crop Moratorium) Act 2003: [2.510), [2.600], [11.1140) s 6: [2.600], [11.1140) s 7: [2.600), [11.1140] s 7A: [11.1140] s 11: [11.1140) s 13: [11.1140) s 14: [11.1140) s 20: [11.1140) s 21: [11.1140) s 32A(l): [11 .1160) s 32A(2): [11.1160) Gene Technology (NSW) Act 2003: [11.1090) s 3: [11.1090] s 6: [11.1090] s 10: [11.1090) Government Information (Public Access) Act 2009: [13.650) Government Information (Public Access) Regulation 2009

cl 1(3)(a): [8.180] Greater Sydney Commission Act 2015: [3.05], [5.05] s 24: [3.05] s 53A: [3.05) Pt 3B: [3.05] Greenhouse Gas Benchmark (Carbon Sequestration) Rule: (13 .870) Growth Centres (Development Corporations) Act 1974: [5.2050) Heritage Act 1977: [1.100], [2.350], [2.410], [3.160], [3.250], [5.370], [5.1060], [13.790], [17.60], [17. 70], [17.80], [17.90], [17.100], [17.120), [17.220], [17.260], [17.300), [17.850), [17.940), [20. 720], [20.830) s 3: [17.70) s 4: [20.720], [20.830] s 4(1): [17.60), [17.70], [17.80], [17.440) s 4A(l): [17.80] s 10: [17.440] s 11: [17.440] s 18: [17.440] s 21: [17.100] s 21(1)(e): [17.240) s 21A: [17.90) s 22(1): [17.240] s 22(3): [17.250] s 24(1): [17.120) s 24(2): [17.120) s 25(1): [17.120) s 25(2): [17.120) s 25(3): [17.120] s 25(5): [17.120) s 26: [17.130] s 28(1): [17.130) s 28(l)(d}: (17.130) s 29(2): [17.140) s 29(3): [17.150) s 29(5): [17.150) s 29( 6): [17.150) s 30: [17.130] s 30(3): [17.130) s 31: [17.170], [17.540] s 32(1): [17.170] s 32(2): [17.180) s 33(1): [17.190] s 33(1)(f): [17.190) s 33(2): [17.190] s 33(4): [2.410] s 34(1) : [17.200] s 34(1)(a): [17.200] s 34(2): [17.200] s 36: [17.200] s 36(2): [17.200] s 37(1) : [17.200)

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Heritage Act 1977 - cont s 37(2): [17.200] s 38(1): [17.210] s 38(3): [17.210] s 38A: [17.580] s 39: [17.450] s 40: [17.450] s41: (17.460] s 42: [17.460] s43: (17.470] s 43(1): [17.470] s43(3): [17.470] s 44(1): [17.480] s 44(2): [17.480] s 44(3): (17.480] s 44(4): (17.480] s 45: [17.490], [17.500] s 46: [17.450] s 47: [17.940] s 48: [17.940] s 49: [17.940] s 50: [17.940] s 51(1): [17.940] s 51(2): [17.940] s 51(3): [17.940] s 52: [17.940] s 56: [17.270], [17.370] s 57: [5.2740], [17.270], [17.280], [17.290] s 57(1): [17.310], [17.370] s 57(1A): [17.290], [17.370] s 57(1B): [17.290] s 57(1C): [17.290] s 57(2): (17.290], [17.670] s 57(3): [17.290] s 59: [17.310] s 60: [17.320] s 61: [17.320] s 61(3): [17.320], [17.330] s 62: [17.330] s 63: [17.320], [17.330] s 63(2): [17.330] s 63(3 ): [17.330] s 63(4): (17.330] s 63A(l): [17.340] s 63A(3): [17.340] s 63A(4): [17.340] s 63B: [17.340] s 64: [17.340] s 64(2)(6): [17.330] s 65: [17.360] s 65A: [17.350] s 67: [17.370] s 68: [17.370] s 69: [17.370] s 70: [17.360] s 70(1): [17.360] s 70A: [17.360] s 70A(l): [17.360] s 71: [17.360] s 72: [17.360]

Table of Statutes

s 76: [17.380] s 77: [17.380] s 78: [17.380] s 79: (17.380] s 79C: [17.400] s 79C(2): [17.400] s 79C(3): [17.400] s 101: [17.500] s 103: [17.500] s 104: [17.500] s 105: [17.500] s 105A: [17.490] s 106: [17.500] s 118: [17.550] s 119: [17.560] s 120: [17.570] s 120(2): [17.570] s 120(3 ): [17.570] s 120A(l): [17.570] s 120A(2): [17.570] s 120B: [17.570] s 120C: (17.570] s 120D: [17.570] s 120E(l): [17.570] s 120E(2): [17.570] s 120F: [17.570] s 120L: [17.570] s 120M: [17.250] s 121: [17.570] s 124: [17.520] s 127: [17.520] s 128: [17.530] s 129: [17.390] s 136: [17.110], [17.400] s 136(1): [17.110] s 136(2): [17.110] s 136(3 ): [17.110], [17.400] s 136(5): [17.110] s 136(6): [17.110] s 137: [17.110] s 137A: [17.110] s 138: [17.940] s 139: [5.2740], [17.440] s 139(4)(d): [17.440] s 139(5): [17.940] s 146: [17.440] s 146A: [17.440] ss 146B-146C: [17.440] s 151: [17.250] s 153: [2.880], [17.360], [17.410] s 154(2): [17.410] s 156: [17.420] s 157: [17.420] s 158(3): [17.420] s 158A(l): [17.420] s 158A(2): [17.420] s 159: [17.420] s 160(1): [17.430] s 161: [17.430] s 161(1): [17.430] s 162: [17.430]

s 163: [17.430] s 167: [17.250], [17.260] s 170: [17.590] s 170(3): [17.240] s 170(4): [17.240] s 170A(l): [17.590] s 170A(2): [17.600] Pt 4: [17.370] Heritage Regulation 2012 ell 9 - 20: [17.550] cl 15: [17.550] cl 22: [17.590] cl 22(1): [17.240] Historic Houses Act 1980: [17.60] s 4(3): (17.700] s 5(1): (17.700] s 6: [17.700] s 9: [17.700] s 10: [17.700] s 20: [17.700] s 21: [17.700] Home Building Act 1989: [5.620], [5.640], [5.1620] s 80A(l)(a): [5.1670] Hunter Water Act 1991: [1.70] s 12(1): (9.800] s 16: [9.800] lnclosed Lands Protection Act 1901: [13.630] Independent Pricing and Regulatory Tribunal Act 1992: [15.980] s 5: [15.980] Industrial Chemicals (Notification and Assessment) Act 1989: [2.880] s 83: [2.880] s 475: [2.880] Interpretation Act 1987 s 43(2): [9.2640] s 58: [14.50] s 59: [14.50] Irrigation Act 1912: [15 .850] Irrigation Corporations Act 1994: [15.850] Land Acquisition (Just Terms Compensation) Act 1991: [1.410], [3.230], [11.190], [13.240] s 21(3)(6): [1.410] s 22(2)(6): [1.410] s 23: [l.410] s 24: [1.410] Land Tax Management Act 1956: [17.530]

Land and Environment Court Act 1979: [1.40], [2.730], [5.1180], [5.2260], [5.2660], [7.940] s 8: [12.1050] s 10(1): [12.1050] s 12: [2. 730], [12.1050] s 16: [12.1050] s 16(2): [2.740] s 17: [2. 740], [12.1050], [13.640] s 17(i): [13. 710] s 18: [2.740] s 18(g): [12.1050] s 19: [2.740] s 20: [2. 740] s 21: [2.740] s 21(e): [17.420] s 2l(i): [12.1530] s 21A: [2.740] s 21B: [2.740] s 21C: [2.740] s 25B: [5.1540] s 33(1): [2.750] s 33(2): [2.750] s 34: [2. 760] s 34AA: [2.760] s 38(1): [2.750] s 38(2): [2.750] s 39(2): [5.650], [5.1180], [6.130], [6.330] s 39(3): [2.750] s 39(4): [5.1180] s 39(6): (5.870], (5.2270], [6.340] s 39(6A): [5.400] s 39A: [5.950] s 56A: [2.780] s 57: [2.780] s 58: [2.780] s 63: [2.750] s 80(4): [5.1550] Pt 2, Div 2: [2. 730] Pt 2, Div 3: [2.730] Pt 3, Div 1: [2.740] Land and Environment Court Rules 2007: [2.930] r 3.7: [2.940] r 4.2(1): [2.930] r 4.2(2): [2.950] r 6.2: [2. 770] r 7.l(l)(a): [12.680] Law Enforcement (Powers and Responsibilities) Act 2002: [13.630] Liquor Act 2007: [5.200] Local Government Act 1906: [8.20] Local Government Act 1919: [5.90], [5.1130], [8.10], [8.20], [8.270] s 342ZA: [5.910], [5.1130]

s 342ZA(l): [5.1130] s 342ZA(3): [5.1140] s 342ZA(4): [5.1140] Pt XI: (5.100] Pt XII: [5.130] Pt XIIA: [3.40], [5.1130] Local Government Act 1993: [1.40], [3.300], [3.710], [4.20], [5.100], [5.200], (5 .580], [5. 770], [8.10], [8.20], [8.30], [8.40], [8.60], [8.70], [8.110], [8.150], [8.190], [8.210], [8.230], [8.340], [11.970], [12.500], [17.60], [20.810] s 3: [8.30], [8.180], [8.200], [8.220], [8.230], [8.280], [8.350] s 7: [8.20] s 7(a): [8.20] s 7(e): [8.20] s 8(1): [8.30] s 8(2): [8.30] s 23A: [8.40] s 24: [8.50], [9.2480] s 25: [8.180] s 26: [8.180] s 27(1): [8.330] s 27(2): (8.330], [8.340], (8.360] s 28: [8.330] s 29: [8.330] s 29(2): [8.340] s 30: [8.330] s 31: (8.360] s 32(2): [8.340] ss 32(2) - (3): [8.340] s 32(5): [8.340] s 33: [8.330] s 34: [8.330], [8.340], (8.350], [8.360] s 35: (8.220], [17.970] s 36: [17.970], [20.810] s 36(1): [8.220] s 36(2): [8.220] s 36(3): [8.240] s 36(3)(d): [8.240] s 36(3A)(b): (8.240] s 36(4): [8.220] s 36(5): [8.230], [8.250] s 36(6)(6): [8.230] s 36A(2): [8.220] s 36A(3): [12.500] s 36A(3)(b): [8.230] s 36B(3): [8.220] s 36B(4)(b): [8.230] s 36C(l)(a): [8.230] s 36C(l)(b): [8.230] s 36C(2): [8.220] s 36C(3)(b): [8.230] s 36D: [8.310] s 36DA: [20.810] s 36D(2): [8.220]

ss 36E - N: [8.240], [8.270] s 36G: [8.240] s 37: [8.210] s 38: [8.250] ss 40 - 42: [8.250] s 40A: [8.250] s 43: [8.250] s 44: [8.220] s 45(1): [8.180] s 46(1)(a): [8.280] s 46(1)(al): [8.280] s 46(1)(b)(i): [8.270] s 46(1)(b)(iii): [8.270] s 46(1)(c): [8.280] s 46(2): [8.240], [8.270] s 46(3): [8.260] s 46(4)(a)(i): [8.270] s 46(4)(a)(ii): [8.270] s 46(4)(6): [8.270] s 46(5): [8.270] s 46(5A): [8.280] s 46(5A)(a): [8.280] s 46(5A)(b): [8.280] s 46(5A)(c): [8.280] s 46(5B): [8.280] s 46A(3): [8.320] s 47(1): [8.300] s 47(1)(c): [8.300] s 47(l)(d): [8.300] s 47(3): [8.300] s 47(4): [8.300] ss 47(5) - (9): [8.320] s 47(8A): [8.320] s 47(8AA): [8.320] s 4 7A: [8.320] s 47A(l): [8.300] s 47AA: [8.280] s 47AA(2): [8.310] s 47B(l): [8.290] s 47B(4): [8.290] s 47B(5): [8.290] s 47B(5)(b): [8.290] s 47B(6): [8.290] s 47B(7): [8.290] s 47D: [8.260] s 48: [8.200] s 52: [8.210] s 53: [8.180] s 54: [8.180] s 68: [5.100], [8.60], [9.810] s 68A: [8.60] ss 75 - 94: [8.60] s 89(1)(6): [8.70] s 89(1)(c): [8.60] s 89(2): [17.970] s 89(3 )(c): [17.970] ss 95 - 98: (8.60] s 96(1)(c): [8.60] s 100: [8.60] ss 106 - 110: [8.60] ss 114 -119F: [8.60]

l

025

l

026

Table of Statutes

The Environmental Law Handbook Local Government Act 1993 - cont s 123B: [8.60] s 124: [8.80], [13.390], [13.790), [14.1240] s 142: [17.970] s 149: [14.950] s 157: [8.80] s 158: [8.70) ss 158 - 167: [8.80] s 158(3): [8.70] s 158(4): [8.70] s 158(5): [8.70] ss 160 -161: [8.70] s 161: [8.70) s 162: [8.70] s 163: [8.70] s 164: [8.70] ss 166 - 167: [8 .70] ss 176 - 178: [8.60] s 205(1): [14.690] s 205(2): [14.690) s 205(3)(a) : [14.690] s 205(3)(b): [14.690] s 355: [8.170) s 355(d): [8.170) s 377(1)(1): [8.330) s 383 : [8.170) ss 383 - 400: [8 .170) s 402(1): [8.110] s 402(2): [8.110] s 402(3)(a): [8.110] s 402(3 )(c): [8.110) s 402(3)(d): [8.110] s 402(4): [8.100) s 402(5): [8 .110) s 402(6): [8.110] s 402(7): [8.110] s 403(1): [8.120) s 403(2): [8 .120) s 404(1): [8 .130) s 404(2): [8 ,130) s 404(3): [8 .130] s 404(4): [8.130] s 404(5): [8.130) s 405(2): [8,140) ss 405(3)- (5): [8 .140) s 405(6): [8 .140) s 406: [8.110], [8.150) s 406(4): [8 .110) s 406(5): [8.100], [8.110] s 428: [8.150] s 428(2): [8.150) s 428A: [14.100] s 428A(1): [8.150) s 428A(2): [8.150) s 428A(3)(a)- (c): [8 .150) s 428A(4) : [8.150] s 496: [9.2480] s 501: [9.810) s 530: [15.800] ss 626 - 628: [8.90]

s 674: [2.880], [8 .220] s 694: [9.1880] s 729: [8.300] s 733: [14.950], [14.960] s 733(1): [14.950] s 733(3): [14.950] s 733(3)(d): [14.950] s 733(4): [14.950] s 733(2): [14.950] s 733(7): [14.950) Ch 7, Pt 1: [8.60] Ch 7, Pt 2: [8.80] Pt 1: [8.80) Local Government and Valuation of Land Amendment (Water Rights) Act 2005: [15.800] Local Government Amendment (Community Land Management) Act 1998: [8.240] Local Government Amendment (Planning and Reporting) Act 2009: [8 .100), [8.150) Local Government (General) Regulation 2005: [8.10], [8.60], [8.70], [8.230], [8.300] cl 3: [9.810) cl 25: [9.810] cl 77: [8.70) ell 101 - 111: [8.230] cl 101(2): [8.230) cl 102: [8.230) cl 107(2)(c): [8.230) cl 114: [8.250) cl 116: [8.270) cl 117(1)(a): [8 .300) cl 117(1)(c): [8.300] cl 188: [8.310] Pt 2, Div 5: [17.970) Pt 4: [17.970] Pt 9, Div 2: [17.970) Local Land Services Act 2013: [1.90), [11.80], [11.290], [11.300], [11.310], [11.330], [11.340), [11.520), [11.530), [11.540], [11.990), [16.90], [16.140], [16.180], [16.190), [16.200], [16.210), [16.370] s 4: [11.290], [16.210] s 10(1): [16.250) s 10(2): [16.250) s 24: [16.200), [16.280), [16.310) s 29(1) : [16.240) s 29(1)(a) : [16.240] s 33(1): [16.240] s 33(2): [16.240] s 36(1): [16.260) s 36(2): [16.260] s 37(1): [16.270]

s 37(3): [16.270) s 38: [16.270] s 39: [16.280] s 40: [16.280) s 41(1): [16.280] s 41(2): [16.280] s 41(3): [16.280] s 43(1): [16.280] s 43(2): [16.280] s 44: [16.200), [16.280] s 45: [16.290] s 46: [16.300] s 47(1): [16.300] s 47(2): [16.300] s 47(3) : [16.300], [16.310] s48: [16.310] s 49(2) : [16.310] s 49(3 ): [16.310] s 50: [16.310] s 50(1): [16.310] s 50(2) : [16.310] s 51(3): [16.310] s 53: [16 .310] s 54: [16.200), [16.310] s 66: [11.330] s 66(1): [13.180] s 66(2): [11.330), [13.180) s 66(3): [11.330] s 74: [11.340] s 78: [11.340) s 81: [11.340) s 130: [11.530) s 130(2): [11.530] s 130(5): [11.530] ss 131-132: [11.530] s 133: [11.530) s 134: [11.530) s 135: [11.530) ss 142(1)-(2): [11.530) s 142(3): [11.530] s 143: [11.530) s 144: [11.540) s 145: [11.540) s 146: [11.540] s 149: [11.540) s 150: [11.540) Pt 2: [11.300) Pt 5: [11.300) Pt 10: [13.620) Local Land Services Regulation 2014: [11.340], [16.210) reg 77: [11.340) reg 83: [11.340] Luna Park Site Act 1990: [1.140) s 19A: [2.510) Marine Estate Management Act 2014: [4.100), [4.440), [4.480), [19.230], [19.300) s 22: [19.300) s 23 : [4.100], [4.150]

Marine Estate Management Act 2014-cont s 23(3): [19.860] s 23(4): [19.860] s 23(5): [19.860] s 25: [4.200], [19.860) s 27(1): [19.860] s 27(2): [19.860] s 28: [19.860], [19.870] s 29: [19.760) s 33: [19.300], [19.820] s 33 - 38: [19.230] s 34: [4.100], [4.150] s 38: [4.200] s 54: [18.1190] s 54(1): [18.290] s 54(3): [18.290], [18.1190] ss 54(4) to (6): [18.1190]

Marine Estate Management (Management Rules) Regulation 1999 cl 1.12: [19.760] cl 1.18: [19.760) cl 1.21: [19.760] cl 1.24: [19.760] cl 1.33: [4.440] Pt 1, Div 2: [19.880] Marine Estate Management Regulation 2009: [19.880) Marine Parks Act 1997: [1.180], [2.520], [14.530) Marine Parks (Zoning Plans) Regulation 1999 cl 1.14: [19.870] Marine Pollution Act 1997: [9.2150), [9.2170) s 8(1): [9.2170], [9.2300] s 8A: [9.2170) Marine Pollution Act 2012: [1.60], [1.250), [9.2150], [9.2160), [9.2170], [9.2240), [9.2250), [9 .22 70], [9 .2280], [9 .2300], [9.2310], [9.2320) s 3: [9.2150), [9.2200), [9.2210) s 5: [9.2170) s 12: [9.2170) s 13: [9.2150) s 15(1): [9.2170), [9.2300) s 16(1): [9.2170] s 16(2): [9.2170) s 17: [9.2170) s 18: [9.2180) ss 18 to 25: [1.250] s 19: [9.2180] s 20: [9.2180] s 21 : [9.2180) ss 22 to 24: [9 .2180] s 25: [9.2180)

s 26(1): [9.2190] s 26(2): [9.2190] s 29(1): [9.2170] s 30(1): [9.2170) s 30(2): [9.2170] s 31: [9.2170) s 32: [9.2180] s 33: [9.2180] s 34: [9.2180] ss 40 to 41: [9.2180] ss 43 to 44: [9.2200] ss 45 to 47: [9.2200] s 48: [9.2200] s 49: [9.2200] s 50: [9.2200] s 51: [9.2200] s 52: [9.2200] s 53(1): [9.2210] s 54: [9.2210] s 55: [9.2210] s 56: [9.2210] s 57: [9.2210] ss 58 to 59: [9.2210) s 60(1): [9.2220) s 61: [9.2220) s 62: [9.2220) s 63: [9.2220) s 64: [9.2220] s 65: [9.2220) s 66: [9.2220) ss 68 to 73: [9.2230) s 69: [9.2160) s 71: [9.2230) ss 71 to 74: [9.2160) s 74: [9.2230) s 75: [9.2230] s 76: [9.2230] s 77: [9.2160], [9.2230] s 86: [9.2240] s 87: [9.2240] ss 90 to 91: [9.2240) s 93: [9.2240] s 94: [9.2240) ss 95 to 96: [9.2250) s 97: [9.2250) s 98: [9.2250) s 99: [9.2250) ss 100 to 101: [9.2250) s 102: [9.2250) s 103: [9.2250) ss 104 to 106: [9.2250) ss 107 to 109: [9.2250] ss 110 to 112: [9.2250) s 112: [9.2250) ss 173 to 174: [9.2260) s 176: [9.2260) s 183: [9.2270) s 184: [9.2270) s 185: [9 .2270) s 186: [9.2270] s 189: [9.2310]

s 189(4): [9.2310] s 192: [9.2280] ss 193 to 194: [9.2280] s 193(3): [9.2280] s 193(4): [9.2280] s 195: [9.2280] ss 196 to 199: [9.2280] s 198: [9.2280] s 200: [9.2280] ss 201 to 202: [9.2280] s 202: [9.2280) s 203: [9.2280] s 205(1): [9.2280] s 205(2): [9.2280] s 205(3): [9.2280] s 216(1): [9.2260] s 216(2): [9.2260] ss 221 to 225: [9.2290] s 234(1): [9.2300] s 234(2): [9.2300] Pt 8: [9.2160] Marine Pollution Regulation 2014 cl 4: [9.2150) cl 62: [9.2150] Pt 3: [9.2210) Marine Safety Act 1998 s 16: [14.1340) Mine Subsidence Compensation Act 1961: [5 .370), [18.670), [18.710), [18.730) s 4: [18 .710] s 12: [18.710), [18.730) s 12(1): [18.710) s 12A: [18.710), [18.730) s 12A(l)(b): [18 .710) s 13(1): [18.710) s 13A: [18.710), [18 .730] s 15: [5.2740], [18 .730] s 15(6): [18.740) s 15B: [18.740) s 15D: [18.740) Mine Subsidence Compensation Amendment Act 2014: [18.710), [18.730] Mining Act 1906: [18.1210) Mining Act 1973: [18 .230), [18.750] Mining Act 1992: [1.110), [2.880), [5.40), [5.200), [5 .370), [5.2740), [6.110], [13.600], [14.1250], [18.20), [18.30), [18.40), [18.60], [18.70), [18.80), [18.90], [18.100], [18 .110], [1 8.120], [18.130], [18.180), [18.220], [18.280), [18.300], [18.310), [18.320), [18.370), [18 .390], [18.400), [18.480], [18.530), [18.580), [18 .630], [18 .640],

1027

l OlS

The Environmental Law Handbook Mining Act 1992 - cont [18. 700), [18. 750), [18.760), [18. 770), [18. 780), [18.820), [18.840], [18.880), [18.890), [18.900], [18.930], [18.945], [18.950], [18.960], [18.980), [18.1030], [18.1045), [18.1050], [18.1080], [18.1090], [18.1170], [18.1210], [18.1270) s 3A: [18.130) s 4: [14.1250] s 5: [18.130), [18.220], [18.850), [18.1240] ss 5 to 6: [18.850] s 6(1): [18.190] s 6(3): [18.190] s 8(5): [18.270] s 9: [18.270) s llA: [18.70] s 12: [18.130] s 12(1): [18.230) s 12(2)(a): [18.230] s 12(2)(6): [18.230) s 12(4): [18.230), [18.880] s 12(5): [18.230) s 12(6): [18.880] ss 12A to 12D: [18.870] s 13: [18.150] s 13(1): [18.140), [18.220) s 13(2): [18.220] s 13(3): [18.140) s 13A: [18.540) s 14: [18.140) s 18: [18.1210) s 19(1): [18.420) s 21C: [18.930) s 24(1): [18.130] s 24(3): [18.140] s 24(4): [18.220) s 26(2)(a): [18.220] s 27: [18.140) s 27(6)(i): [18.220] s 29(1): [18.140) s 30: [13.600) s 31: [18.380] s 31(5): [18.930) s 33(1): [18.220) s 33(2): [18.220] s 33A: [18.540] s 37(1): [18.420) s 37(1)(a): [18.140) s 38B: [18.1200) s 38C: [18.1200) s 42(1): [18.130), [18.1090) s 42(3): [18.170) s 42(4): [18.220) s 44(2)(a): [18.220) s 45: [18.170) s 45(6)(i): [18.220) s47: [18.170) s 47(1): [18.170)

Table of Statutes s 48: [13.600) s 49: [18.380) s 49(5): [18.930) s 51(1): [18.220) s 51(2): [18.220] s 51(3): [18.180] s 51(4): [18.180] s 51(4)(a): [18.190) s 51A: [18.550] s 52: [18.180] s 52(4): [18.370) s 58(1): [18.420] s 58(1)(a): [18.140] s 58(1)(6): [18.170] s 62: [18.350] s 62(1): [18.340] s 62(2): [18.340) s 62(6A): [18.340), [18.930) s 62(7): [18.360] s 63(1): [18.140) s 63(4): [18.370) s 63(5): [18.190] s 65: [18.110), [18.480] s 65(2): [18.480] s 67: [18.1090) s 68(1): [18.130] s 68(3): [18.180] s 68(4): [18.220) s 70: [18.1060) s 70(2): [18.770) s 71: [18.180] s 71(1): [18.1080) s 71(2): [18.1080) s 71(2A): [18.1080] s 71(3): [18.1080) s 72(1): [18.1080] s 72(3): [18.1080) s 73(1)(a): [18.180] s 73(1)(6): [18.180) s 73(1)(c): [18.180) s 73(1A): [18.190) s 74: [18.430), [18.1210) s 74(1): [18.430] s 75(3): [18.880] s 81(1): [18.180), [18.750] s 81(3): [18.750) s 88: [18.650) ss 90 to 93: [18.650) s 110(2): [18.430) s 114(3): [18.140), [18.170), [18.180) s 114(4): [18.770) s 118: [18.1200) s 121(3): [18.770) s 125(1): [18.900) s 125(1)(e): [18.250) s 126(1): [18.920) s 127: [18.920) s 127(2): [18.250) s 128: [18.920) s 136(c): [18.610)

s 136A: [18.1040) s 137: [18.610) s 137A: [18.1040) s 140: [18.390), [18.540) s 141(1): [18.390] s 141(1A): [18.390] s 141(2A): [18.390) s 143: [18.390) s 144: [18.390] s 155: [18.390] s 157: [18.680] s 158(3): [18.390) s 168: [18.770] s 173(1): [18.200] s 173(2)(c): [18.280], [18.660) s 174: [18.200), [18.660] s 175: [18.200) s 177: [18.200), [18.1200] s 178(2)(6): [18.200) s 179: [18.200), [18.370) s 180(1): [18.200) s 180(2): [18.200) s 180(4): [18.200] s 181: [18.310) s 183(1): [18.420) s 187: [18.370) s 188(1): [18.340) s 188(2): [18.340] s 188(5): [18.340), [18.930) s 188(6): [18.360) s 190(1): [18.200), [18.520) s 191(1): [18.130) s 191(2): [18.200] s 193: [18.200] s 195: [18.200] s 195(1A): [18.200) s 198(3): [18.770) s 199A: [18.200) s 201(3): [18.770) s 203(1): [18.900) s 203(1)(f): [18.250) s 204(1): [18.920] s 205: [18.920) s 205(2): [18.250] s 206: [18.920] s 210B: [18.610) s 215: [18.770) s 218: [18.1210] s 220: [18.210) s 221: [18.210) s 222(1)(a): [18.210), [18.380) s 222(1)(6): [18.210) s 223(1): [18.420) s 223(l)(c): [18.310) s 223(l)(d): [18.380) s 223A: [18.210) s 224: [18.210) s 225(1)(a)(v): [18.210] s 228(1): [18.210], [18.530) s 232(1): [18.210) s 232(4): [18.210)

Mining Act 1992 - cont s 233(1): [18.900) s 234(1): [18.920) ss 237 to 238: [18.1200] ss 237 to 239: [18.1040] s 239: [18.770] s 240: [18.790], [18.800], [18.810] s 240(2): [18.800] s 240A(l): [18.810), [18.910] s 240A(2): [18.810), [18.920] s 240C: [18.860], [18.880] s 240D: [18.810) s 241: [18.810] s 241(3): [18.810) s 241(5): [18.810) s 241A(l): [18.820] s 242: [18.810) s 242B: [18.390) s 242B(l): [18.820] s 242B(2): [18.820) s 242B(4): [18.820) s 242B(5): [18.820) s 242C: [18.820) ss 243 to 246: [18.830) ss 246M to 246X: [18.780) s 246N: [18.780) s 2460: [18.780] s 246P(l): [18.780] s 246R: [18.880) s 246U: [18.780] s 248S: [18.880) s 252: [18.670), [18.760] s 254: [18.1200) s 255A: [18.390) s 261A: [18.790) s 261B(l): [18.790) s 261B(2): [18.790) s 261B(3): [18.790) s 261B(4): [18.790) s 261BA: [18.790) s 261BC: [18.790] s 261BD: [18.790) s 261F(l): [18.790] s 261F(3): [18.790) s 262: [18.390), [18.670) s 263: [18.670] s 264: [18.670) s 265: [18.670) s 265(4): [18.560) s 266(1): [18.670) s 269: [18.390] ss 269 to 270: [18.760) s 270(1): [18.670) s 271: [18.390) s 284(2): [18.220) s 284(3): [18.220) s 293(1): [18.930) s 294: [18.930) s 295: [18.930) s 296: [18.930)

s 297: [18.930) s 298: [18.930) s 361: [18.800) s 367(2): [18.410] s 367(4): [18.410] s 368: [18.140] s 369A: [18.230] s 378A: [18.850] s 378AF: [18.860) s 378B: [18.850] s 378C: [18.850] s 378D: [18.850] s 378D(l): [18.860] s 378K(l): [18.940] s 378K(2): [18.940] s 380A: [18.930] s 380A(l)(c): [18.900) s 380A(l)(d): [18.900] s 380AA: [18.480) s 381: [18.530) s 383C: [18.390) s 402: [18.1200) Pt 4: [18.1090) Pt 4, Divs 2 to 4: [18.1240) Pt 4AA: [18.4 70) Pt 8, Div 2: [18.680) Pt 11: [18.750) Pt 11, Div 1: [18.760] Pt 12A: [18.750) Pt 13: [18.670), [18.680) Pt 15: [18.930] Pt 17, Div 3: [18.840) Pt 17A: [18.750), [18.840] Sch 1: [18.400), [18.450), [18.570] Sch 1, cl 1(1): [18.620] Sch 1, cl 2(1): [18.620) Sch 1, cl 3: [18.620) Sch 1, cl 14: [18.600) Sch 1, cl 20: [18.560] Sch 1, cl 21: [18.560] Sch 1, cl 27: [18.580] Sch 1, cl 28(6): [18.570), [18.580] Sch 1, Pt 2: [18.640] Sch 1, cll 22 to 23A: [18.560) Sch 6A, cl 3: [18.110) Sch 6, cl 4: [18.450] Sch 6, cl 6: [18.450] Sch 6, cl 7: [18.450) Sch 6, cl 7(1)(a): [18.450) Sch 6, cl 7(1)(6)(i): [18.450) Sch 6, cl 7(2)(a): [18.450) Sch 6, cl 7(3)(a): [18.450) Sch 6, cl 8: [18.430) Sch 6, cl 9: [18.450) Sch 6, cl 9A: [18.450] Sch 6, cl 10: [18.450) Sch 6, cl 10(1)(6): [18.450) Sch 6, cl lOA: [18.450) Sch 6, cl 11: [18.450)

Sch 6, ell 6(a) to (e): [18.450) Sch 7.13: [18.1090) Dictionary Dictionary: [18.250), [18.570] Mining Amendment Act 2008: [18.100], [18.190), [18.200], [18.220], [18.840] Pt 11: [18.750) Mining Amendment (Development Consent) Act 2013: [18.110] Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014: [18.110] Mining Amendment (Improvements on Land) Act 2008: [18.350) Mining Amendment (Small-Scale Title Compensation) Act 2014: [18.110), [18.670) Mining Legislation Amendment (Uranium Exploration) Act 2012: [18.110), [18.1270) Mining Regulation 2003: [18.100) Mining Regulation 2010: [18.30], [18.100), [18.900), [18.1170) cl 15: [18.540) cl 20: [18.540) Sch 1, cl 5: [14.1250), [18.30] Sch 1, cl 7: [18.190), [18.200] Sch 1, cl 12: [18.130), [18.230) Sch 1, cl 12(1): [18.230) Sch 1, cl 12(2): [18.230) Sch 1, cl 12(2)(a): [18.230) Sch 1, cl 13: [18.70) Sch 1, cl 14: [18.130], [18.140] Sch 1, cl 22: [18.370) Sch 1, cl 22(5): [18.370] Sch 1, cl 23: [18.370) Sch 1, cl 23(1): [18.370) Sch 1, cl 23(3): [18.370] Sch 1, cl 23(4): [18.370) Sch 1, cl 23A: [18.350) Sch 1, cl 23B: [18.350) Sch 1, cl 24: [18.550) Sch 1, cl 49: [18.210) Sch 1, cl 80: [18.940] Sch 2: [18.370) Sch 11: [18.940) Mining and Petroleum Legislation Amendment Act 2014: [18.110), [18.900], [18.950) Mining and Petroleum Legislation Amendment (Land Access) Act 2010: [18.110)

1029

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The Environmental Law Handbook Mining and Petroleum Legislation Amendment (Public Interest) Act 2013: [18.110], [18.950] Miscellaneous Acts Amendment (Directors' Liability) Act 2012: [18.110], [18.860] Miscellaneous Acts (Planning) Repeal and Amendment Act 1979: [3.40] Miscellaneous Acts (Planning) Savings and Transitional Provisions Regulation 1980 cl 14(1): [5.1130] cl 342ZA: [5.1130] National Environment Protection Council (New South Wales) Act 1994: [9.50] s 3(6): [9.100] s 6(1): [9.90] s 12: [9.50] s 14: [9.50] s 14(1): [9.60] s 14(3): [9.90] s 16: [9.50] ss 16 to 19: [9. 70] s 21: [9.70] s 23: [9.80] s 24: [9.80] s 28: [9.70] National Park Estate (Land Transfers) Act 1998: [13 .170] National Park Estate (Reservations) Act 2003 : [13.290] s 4: [13.290] s 5: [13.290] National Park Estate (Riverina Red Gum Reservations) Act 2010: [13.240], [13.290], [13.320], [13.330] s 15(1): [13.330] National Park Estate (South-Western Cypress Reservations) Act 2010: [13 .240], [13 .290], [13.320] National Park Estate (Southern Regions Reservations) Act 2010: [13.240] National Parks and Wildlife Act 1974: [1.100], [2.80], [2.100], [2.390], [2.520], [2.600], [2.660], [4.10], [4.100], [4.160], [4.250], [4.280], [4.310], [4.340], [4.350], [4.440], [4.480], [4.520], [4.530], [4.580], [4.590], [4.610], [4.630], [5.200], [5.370], [5.850], [6.70], [6.170], [9.1290], [11.260],

Table of Statutes [11.800], [12.10], [12.320], [12.360], [12.370], [12.690], [12.780], [12.930], [12.1130], [12.1650], [13.380], [13.390], [13.670], [13.790], [13.970], [14.650], [17.60], [18.120], [18 .240], [18.250], [18.260], [18.280], [18.310], [18.320], [18.490], [18.1050], [20.190], [20.720], [20.760], [20.770] s 2A(1)(d): [4.420] s 5: [4.130], [12.600], [12.720], [12.730] s 5(1): [4.420], [4.430], [4.440], [12.600], [12.820], [20.730] s 7: [4.180] s 8(3): [4.340] s 8(7): [4.340] s 8(10): [4.340] s 12: [4.340] s 12(f): [4.340] s 22: [4.530] s 28: [2.140], [20.800] s 30A: [4.100], [4.110], [4.180], [4.230], [13.240] s 30B: [4.100] s 30C: [4.190] s 30C(c): [13.180] s 30D: [4.190] s 30D(d): [18.280] s 30E: [4.580] s 30E(1): [4.110] s 30E(2)(e): [4.420] ss 30E to 30K: [4.420] s 30F: [4.100], [4.580] s 30F(1) : [4.110] s 30G: [4.100], [4.110], [4.580] s 30G(2)(c): [18 .280] s 30H: [4.100], [4.110], [4.580] s 301: [4.100], [4.580] s 301(1): [4,130] s 301(2)(a): [4.130] s 30]: [4.100], [4.400], [4.580] s 30](1): [4.110] s 30J(2)(a): [4.110] s 30K: [4.100], [4.580] s 30K(1) : [4.120] s 31 : [4.340] s 33 : [4.100], [13 .240] s 35: [4.190] s 36A: [20.770] s 36A(2): [20.770] s 37(1): [4.200], [4.370] s 38: [12.1650] s 39: [18.250] s 40: [4.340], [11.340] s 41(1): [18.240] s 41(2): [18.240] s 41(3): [18.250] s 41(4): [18.260]

s 41(5): [18.260] s 45(6)(a): [20.790] s 45(6)(6): [20.790] s 47B: [4.100] s 47D: [4.190] s 47GA: [4.340] s 47H(3): [18.280] s 47H(4): [18.280] s 471: [4.340] s 47]: [18.280] s 47](1): [18.280] s 47J(1)(c): [18.1050] s 47](2): [18.280] s 47](3): [18.1050] s 47](4): [18.280] s 47](6): [18.280] s 47](7): [18.280] s 47L: [4.200] s 470: [4.100] s 47O(3)(c): [4.340] s 47R: [4.190] s 47Z: [4.340] s 47ZA: [18 .240], [18.250], [18.260] s 47ZB: [4.200] s 49: [4.100] s 49(4)(c): [4.340] s 52(1): [4.200] s 53: [4.340] s 54: [18.240], [18.250], [18.260] s 56(7) : [20.790] s 57(7): [20. 790] s 58: [4.190], [18 .250] s 58K: [4.100] s 58K(4)(c): [4.340] s 58M(l): [4.200] s 58N: [4.340] s 580: [18.240], [18 .250], [18 .260] s 58S: [4.190], [18.250] s 61 : [4.160], [4.180] s 62: [4.100] s 69C(l)(e2) : [12.1610] s 63 : [4.340] s 64: [18.240], [18.250], [18 .260] s 65: [4.100] s 68: [2.100], [4.100], [4.180] s 68(2)(a): [4.140] s 68(3) : [4.140] s 68(3)(6): [2.100], [12.1650] ss 69A to 69K: [2.140] s 69B: [12.1610], [17.990] s 69D: [12.1610] s 69E: [12.1610], [17.990] s 69F: [12.1610] s 69G: [4.300], [12.1610] s 691: [12.1610] s 691(1): [12.1610] s 691(2): [2.140] s 69KA: [2.140], [12.1610] s 71C(2) : [4.250], [20.760]

National Parks and Wildlife Act 1974-cont s 71D: [4.250], [20.760] s 71O(2)(b)(i): [20.760] s 71P(2)(a): [20. 760] s 71AD: [20. 780] s 71AD(1)(b): [4.250], [20.760] s 71AD(l)(i): [20.780] s 71AD(1)(j): [20. 780] s 71AD(l)(m): [20.790] s 71AE: [4.250], [20.760] s 71AE(5): [20.760] s 71AI: [4.250], [20.760] s 71AL: [4.250], [20.760] ss 71AN -AQ: [20.790] s 71AO(2): [20.790] s 72: [4.510], [20. 790] s 72(1)(e): [4.300] s 72(1C): [4.500] s 72AA: [4.580] s 72AA(6): [17.990] s 73: [4.570] s 73A: [4.530], [17.990] s 73B: [4.530], [4.590], [17.990], [20.790] s 73B(6): [4.520] s 73B(8) : [4.570] s 74: [4.550] s 80: [4.560] s 81(1) : [4.590] s 81(2): [4.300] s 81(3A): [4.590] s 81(4) : [4.590] s 84: [4.100], [4.120], [20.730] s 85: [20.730] s 86(1): [2.600] s 86(2) : [2.600], [20.740] s 86(4): [20.740] s 86(5): [2.600], [20.740] s 86(8): [20.740] s 87(1): [20.730] s 87(2): [20.750] s 87(4): [20.750] s 87A: [20.740] s 89A: [20.750] s 90: [5.2740], [18.1340], [20.730] s 90B: [20. 730] s 90C: [20. 730] s 90D: [20. 730] s 90G: [20.730] s 90K: [20. 730] s 90L: [20.730] s 90Q: [20.750] s 91A: [12.680], [17.990], [20.740] s 91AA: [12. 790], [17.990], [20.740] s 91AA(3): [12.790] s 91AA(4): [12.790] s 91AA(6): [17.990]

s 91B: [12.680], [17.990] s 91BB: [12.790] s 91C: [12.680] s 91CC: [12.790] s 91D: [12.680] s 91DD: [12.790] s 91G: [12.680] s 91H: [12.680], [17.990] s 911: [12.680], [17.990] s 91K: [12.690] s 91L: [20.740] s 91M: [12.690] s 91 T: [12.690] s 92: [12.710] s 98: [12.730] s 98(2): [12.730] s 98(2)(6): [12.730] ss 98(3) - (6): [12.740] s 98(6): [12.740] s 99A: [12.760] ss 99A(5A) - (SE): [12.760] s 99A(4): [12.760] s 99A(6): [12.760] s 100(1): [12.740] s 101: [12.730], [12.750], [12.770] s 101(5)(c): [12.750] s 102: [12. 760] s 112G(l): [12.850] s 113: [12.820] s 115ZG(3)(b): [12.790] s 117: [12.820] s 117(3)(a): [12.820] s 117(3 )(d): [12.830] s 117(3)(e): [12.830] s 117(4): [12.820] s 118(1): [12.820] s 118(3): [12.650], [12.820] s 118A: [5.20], [12.600], [13.800] s 118A(l): [12.600] s 118A(2): [12.600], [12.610], [12.620] s 118A(3): [12.650] s 118A(3)(b): [12.650] s 118A(3)(b)(iv): [12.650] s 118B: [12.600] s 118C: [12.500] s 118C(1): [12.630] s 118C(2): [12.630] s 118C(5): [12.650] s 118C(5)(a): [12.650] s 118C(5)(b): [12.650] s 118C(5)(b)(iv): [12.650] s 118D: [5.20], [13.800] s 118D(l): [12.630], [12.640] s 118D(2)(a): [12.650] s 118D(2)(b): [12.650] s 118D(2)(b)(iv): [12.650] s 118D(4): [12.630] s 118G: [12.650]

s 118G(l)(b): [12.650], [12.740] s 118G(2): [12.650] s 120: [12.590], [12.750], [12.770] s 120(6): [6.70] s 121: [12.770] s 123: [12. 770] s 125A: [12.770] s 131: [12.830], [12.840] s 132: [12.840] s 132C: [6.70], [12.590], [12. 770], [12.830] s 132C(6): [6.70] s 133(4): [13.470] s 135: [12.770], [12.840] s 145: [18.310] s 146: [18 .310] s 151(1): [4.380] s 151(3): [4.380] s 151A: [4.410] s 151A(l)(a): [4.410] ss 151A(1)(b)(i) to (iv): [4.420] s 151A(l)(c): [4.430], [4.440] s 151A(2): [4.400] s 151A(3): [4.410] s 151A(5): [4.380] s 151B: [4.420] s 151F: [4.390] s 151F(4): [4.390] s 151G: [4.390] s 151]: [4.390] s 152: [4.460] s 152(1): [4.450] s 152(3): [4.450] s 153: [4.370] s 153A: [4.460] s 156A: [12.600] s 185(5): [4.360] s 186: [4.360], [4.370] s 186(1): [4.380], [18.260], [18 .280] s 186(2): [4.450] s 188F(2): [12.660] s 189: [12.660] s 190: [12.660] s 191: [12.660] s 193: [2.880], [4.300], [4.590], [12.660] s 201: [12.660] s 205: [12.660] s 205(1)(c) : [12.640] s 251(3): [4.420] Pt 1: [17.990] Pt 1, Div 4: [17.990] Pt 3A: [12.650] Pt 4: [12.650] Pt 4A: [4.250], [4.500], [20.140], [20. 760], [20. 770], [20.790] Pt 5: [4.520], [12.650], [17.990] Pt 5.1: [12.650]

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The Environmental Law Handbook National Parks and Wildlife Act 1974 - cont Pt 6A: [12.670] Pt 7A: [12.850] Pt 8: [12.800] Pt 8A: [12.600], [12.710) Sch 1: [12.900] Sch 2: [12.900] Sch 4: [12.880] Sch 4A: [12.880] Sch 5: [12.880] Sch 7: [4.530] Sch 11: [12.720] Sch 13: [12.810] Sch 14: [20.760] National Parks and Wildlife Amendment (Aboriginal Ownership) Act 1996: [4.250], [20.760] National Parks and Wildlife Amendment (Visitors and Tourists) Act 2010: [4.260], [4.340], [4.420], [4.460] National Parks and Wildlife Regulation 2009: [12.850] cl 2(2): [12.890] cl 3: [12.900] cl 4(3): [12.890] cl 5: [12.900) cl 6(2): [12.890] cl 6(2)(6): [12.890] cl 7: [12.900] cl 8: [12.900) cl 9: [12.890] cl 11: [12.900] cl 13: [12.900] cl 15: [12.900) ell 61 - 64: [12.850] cl 65: [12.850] cl 67: [12.850] cl 68: [12. 750) cl 80A: [20.750] cl 80B: [20.750] cl 80C: [20. 730] cl 80D: [20. 730] cl 107: [12.650) Pt 6: [12.850] Pt 6, Div 3: [12.850] National Resources Commission Act 2003 s 3: [13.310] National Trust of Australia (New South Wales) Act 1990: [17.690] s 14: [17.690] s 16: [17.690] s 17(2): [17.690] s21: [17.690] s 25: [2.120]

Table of Statutes Native Title (New South Wales) Act 1994: [1.330], [20.280] Native Vegetation Act 2003: [1.100], [1.400], [2.80], [2.140], [3.710], [5.2740], [9.1290], [9.1850], [11.80], [11.90], [11.350], [11.360], [12.360], [12.370], [12.650], [12.810], [12.880], [12.930], [12.980], [12.1020], [12.1210], [12.1250], [12.1300], [12.1310], [12.1320], [12.1340], [12.1370], [12.1440], [12.1670], [13.220], [13.480], [13.540], [13.760], [13.840], [13.930], [13.940], [14.650], [16.90], [16.280], [16.310], [16.320], [16.370], [18.120], [18.320], [19.780] s 3: [12.1370] s 4: [12.1370] s 5: [11.80] s 5(1): [12.1410] s 5(1)(6): [13.220] s 5(1)(c): [12.1320] s 5(1)(d): [12.1410] s 6(3): [12.1390] s 6(d): [12.880] s 7: [11.90], [12.1400) s 7(a): [13.930], [13.940] s 9: [12.1390] s 9(2): [12.1420] s 10: (12.1450] s lO(l)(a): [12.1420] s 10(1)(6): [12.1420] s lO(l)(c): [12.1420] s 10(2): [12.1420] s 11: [12.1430], [13.930], [13.950] s 12: [12.1380], [12.1420], [12.1530], [12.1540] s 12(2): [12.1530], [13.980] s 13: [12.1470] s 14: [13.940) s 14(1): [12.1470] s 14(2): [12.1470], [16.370] s 14(3): [12.1470], [13.940] s 14(4): [12.1470], [13.970] s 15(1)(e): [12.1520] s 17: [13.990] s 19: [12.1420], [12.1450], [13.950] s 20: [12.1420], [12.1450] s 22: [12.1430], [13.930], [13.950] s 23: [12.1450], [13.950] s 24: [12.1450] s 25: [12.1460] s 25(n): [13.760] s 27: [16.370] s 28: [12.1480], [12.1640] s 29: [12.1480], [13.940]

s 30: [12.1480] s 30(1): [13.940] s 30(4): [13.940] s 31: [13.940] s 31(1): [12.1480] s 31(3): [12.1480] s 32(6): [12.1480] s 32(e): [12.1520] s 35: [13.980] s 41: [2.880], [12.1530], [13.980] s 42(4): [12.1530] s 48: [12.1470] s 48(1): [16.370] s 48(2): [16.370] s 69: [11.330) Sch 1: [11.80], [12.1410] Native Vegetation Conservation Act 1997: [11.90], [12.1360], [12.1370], [13.660], [16.40] cl 50A: [11.150] Native Vegetation Regulation 2005 cl 9: [12.1480] cl 12(1): [12.1520] cl 12(2): [12.1520] cl 16: [12.1480] , [12.1490], [13.940] cl 18: [12.1490] cll 21 - 22: [12.1560] cl 37: [12.1430] cl 58: [12.1420] cl 62: [12.1420], [12.1450] Pt 5: [12.1560] Native Vegetation Regulation 2013: [11.80], [12.1370], (12.1430], [13.930] cl 3: [13.930] cl 12: [12.1440] cl 15: [13.940] cl 21: [13.960] cl 22: [13.960] cl 22(1): [13.940] cl 22(2): [13.940] cl 22(4): [13.940] cl 23: [13.940] cl 47: [13.950] cl 48: [13.950] cl 58: [13.940] cl 59: [11.90] cl 61: [13.940] cl 65: [11.90] Natural Heritage Trust of Australia Act 1997: [1.400] Natural Resources Commission Act 2003: [1.180], [14.530], [16.90], [16.120], [16.170] s 3: [13.310], [16.170] s 5: [1.180] s 7: [16.170]

Natural Resources Commission Act 2003 -cont s 8: [16.170] s 11: [16.170] s 12: [16.170] s 13: [16.180], [16.190] s 13(1)(c): [16.200] s 13(c): [16.190] s 13(d): [16.190] s 15: [16.180] s 16(1): [16.180] s 16A: (16.180] Natural Resources Management (Financial Assistance) Act 1992: [1.400] Nature Conservation Trust Act 2001: (1.100], [2.80], (2.150], [12.370], [12.1630], (14.650], [18.320] s 3: [2.150] s 7: [2.150] s 9: [2.150] s 11(2)(a): (2.150] s 11(2)(e): [2.150] s 24: (2.150] s 32: [12.1630] s 33: [2.150], [12.1630] s 36: [12.1630] s 37: [2.150], [12.1630] s 38: [2.150] s 38A: [2.150], [12.1630] Pt 3: [2.150] Noise Control Act 1975: [9.550] Noxious Weeds Act 1993: [8.40], [11.260), [11.910], [11.930], [11.980], [11.990], [12.650], [12.1020], [12.1430], (12.1570], (12.1580] s 3: [11.910] s 7(1): [11.920] s 8: [11.930] s 9: [11.920] s 12: (11.940] ss 12 -15: [12.1580] s 13: [11.940] s 14: [11.940] s 15: [11.940] s 17: [11.940] s 18: [11.960], (11.970] s 18(2): [11.960] s 18A: [11.960] s 19: [11.960] s 20: [11.960], [11.970] s 22: [11.960] s 23: [11.960] s 23(3): [11.960] s 25: [11.980] s 26: [11.960], [11.970] s 33: [11.940]

s 35: [11.940] s 36: [11.940] s 38(2): [11.950] s 70(2): (11.980] s 70(3): [11.980] Noxious Weeds Regulation 2008: [11.990] Occupational Health and Safety Act 2000: [9.520] Occupational Health and Safety Regulation 2001: (11.780] Offshore Minerals Act 1999: [5.200], [18.90], [18.1150], [18.1170], [18.1180], [18.1190], (18.1210], [18.1220], [18.1240] s 16: [18.1160] s 22: [18.1170] s 30(1)(a): [18.1230] s 30(1)(6): [18.1230] s 35(1): [18.1170] s 38A: [18.1190] Pts 2.2 to 2.4: [18.1180] Sch 1: [18.1160] Offshore Minerals Regulation 2006: [18.1200] Offshore Mining Act 1999: [18.1220] Ozone Protection Act 1989: [9.500], [9.1110] ss 6 to 13: [9.500] Ozone Protection and Synthetic Greenhouse Gas Management Act 1989: [9.480] s 13: [9.480] s 18(7): [9.480] Pesticides Act 1978: [11. 710] Pesticides Act 1999: [2.880], [9.620], [11.590], [11.710], [11.720], [11.780], [11.820], [11.840], [13.830] s 4: [11.600] s 5: [11.610] s SA: [11.630), [11.780], [11.830] ss SA- SC: [11.630] s 5A(3)(a): [11.630] s 5B: [11.630] s SC: [11.630] s 9(1): [11.800] s 9(2): [11.800] s 10: [11.620] s 14(1): [11.630], [11.780] s 15: [11.630], [11.840] s 17: [11.640], [11.820] s 18: [11.640] s 23: [11.630]

s 38: (11.820] s 38(3): [11.820] s 39: [11.820] s 45(1): [11.830] s 45(2): (11.830] s 48: [11.830] s 48(4): [11.830] s 51: [11.830] s 54: [11.830] s 55(2): [11.830] s 55(3): [11.830] ss 56 - 62: (11.820] s 64: [11.870] ss 64 - 65: [11.870] s 65: [11.870] s 66: [11.870] s 73 : [11.720] s 75: [11.770] s 108: (11.720] s 114(1)(c): [11.870] s 114(l)(d): (11.870] Pt 3: [11.770] Pt 7: [11.870] Div 1: [11. 770] Div 2: [11.770] Div 3: [11.770] Pesticides Amendment Act 2015: [11.710], [11.730), [11.750], [11.760], (11.780], (11.830] s 5B: [11.830] s 7(1A): [11.760) s 10(1A): (11.750] s 45: [11.780] ss 45 - 52: [11.780], [11.830] s 53: [11.780], [11.830] Pesticides Regulation 2009: [11.590], (11.870] cl 6: [11.830] cl 19: [11.790] cl 25: [11.790] cl 26: [11.790] cl 27: [11.790] cl 31: [11.870] Petroleum (Offshore) Act 1982: [18.90], [18.1240], [18.1250] s 11: [18.1260] s 12: [18.1260] s 34: [18.1250] s 39H: [18.1250] s 57: [18.1250] s 71: [18.1250] s 97(1): [18.1250] s 97(3): [18.1250] s 97(4): [18.1250] Petroleum (Onshore) Act 1991: [5.370], [5.2740], [13.600], [18.20], [18.90], [18.110], [18.300], [18.400], [18.950], [18.960], [18.990], [18.1020],

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1034 ---

Petroleum (Onshore) Act 1991 - cont [18.1030], [18.1040], [18.1045], (18.1050], [18.1060], [18.1080], [18.1090] s 6: [18.960], [18.970] s 9(1)(a): [18 .1070] s 25: [18.1030] s 28A: [18.1000] s 28A(2): [18.1000] s 28A(3): [18.1000] s 29: [18.1000] s 31: [18.1000] s 33: [18.1000] s 35: [18.1000] s 38: [18.1000] s 40: [18.1000] s 41: [18.1010] s 45: [18.1010] s 47: [18.1090] s 70: [13.600] ss 74 to 76: [18.1040]

Petroleum (Onshore) Acts 1991: [18 .1050] Petroleum (Onshore) Amendment (NSW Gas Plan) Act 2014: [18.980] Petroleum (Onshore) Amendment (Royalties and Penalties) Act 2012: [18.110], [18.950] Petroleum (Onshore) Regulation 2007: [18.1020] Pipelines Act 1967: [5 .2740] Planning Bill 2013 : [3.350] Plantation and Reafforestation (Code) Regulation 2001: [13 .660] Plantations and Reafforestation Act 1999: [2.880], [13.660], [13.670], [13.760], [13. 770], [13.840], [13.880] s 4: [13. 770], [13.810] s 5(1)(b): [13 .880] s 9: [13 .840] s 9(3): [13 .770] s 17(2): [13.770] s 20(6): [13.840] s 31 : [13.840] s 31(1) : [13.810] s 31(2): [13 .810] s 47: [13 .790] s 57(1): [13.840] s 58: [13.840] s 59: [13.840] s 64: [13.840] s 64(4): [13.840] Pt 4: [13.780], [13.790]

Protection of the Environment Operations Act 1997: [1.60], Plantations and Reafforestation [1.260], [2.240], [2.560], [2.570], (Code) Regulation 2001: [2.660), [2.740), [2.890), [5.30), (13.550], [13.660], [13.690], [5.360], [5.370], [5.1040), [13.730], [13.740], [13.760], [5.1060], [5.2500], [5.2740], [13.810], [13.840], [13.960] [5.2780], [6.110], [6.330], [8.40], ell 5 to 18: [13.820] [9.380], [9.550], [9.560], [9.580], cl 13(1): [13.750] [9.590], [9.620], [9.630], [9.640], cll 15 to 18: [13 .820] [9.650], [9.660], [9.700], [9.730], cl 25: [13.740] [9.740], [9.760], [9.800], [9.820], cll 29 to 41: [13.820] [9.890], [9.910], [9.930], cl 66: [13.840] [9.1100], [9.1140], [9.1200], [9.1210], [9.1240], [9.1320], Pollution Control Act 1970: [9.550] [9.1330], [9.1360], [9.1380], [9.1400), [9.1460), [9.1480), Port Kembla Development (Special [9.1530], [9.1540], [9.1560], Provisions) Act 1997: [2.520] [9.1590], [9.1640], [9.1710], Ports Corporatisation and [9.1720], [9.1740], [9.1760], Waterways Management Act [9.1900], [9.1960], [9.1970], 1995: [14.1050] [9.2010], [9.2060], [9.2070], [9.2120], [9.2160], [9.2230], Ports and Maritime Administration [9 .2280], [9 .2450], [9 .2460], Act 1995: [9.640] [9.2470], [9.2490], [9.2500], s 3: [9.2300] [9.2810], [9.2860], [10.310], s 103: [9.2300] [13.370], [13.460], [13.470], Private Irrigation Districts Act 1973: [13 .820], [13.830], [15.10], [15.900] [18.20], [18.120], [18.450), [18.780], [18.840], [18.1120], Protection and Synthetic Greenhouse [18.1310], [18 .1340], [19.780] Gas Management Act 1989 s 3: [9.560] s 4: [9.500] s 3(1): [9.1690] Protection of the Environment s 3(a): [9.730] Administration Act 1991 : [1.60], s 3(d): [9.570] [1.180], [1.200], [1.240], [8.30], s 6: [9.640], [9.1690] [9.550], [9.710], [13.160] s 6(2): [9.730] s 3: [1.180] ss 6(2)(a) to (d): [9.730] s 3(1): [9.1690] s 7(2)(a): [9.710] s 3(b): [9.2000] s 7(3): [9.2160] s 6: [9.560] s 10: [9.590] s 6(1)(a): [1.200] s 11: [9.900] s 6(1)(b): [9.2000] s 11(3): [9.590], [9.900] s 6(2): [1.200], [2.470], [9.730] s 11(4): [9.590] s 6(2)(c): [2.420] s 12: [9.1690] s 10: [1.240], [9.2030] s 12(2): [9.1690] s 12: [9.830] s 12(3): [9.1690] s 13(1): [9.1710] s 12(4): [9.1690] s 13(2)(c): [9.1820] ss 12(6) to (7): [9.1690] s 16(2): [9.1820] s 13: [9.590] s 16(c): [9.1870] s 13A: [9.1710] ss 15 to 20: [9.610] Protection of the Environment s 16{l)(d): [9.1820] (Clean Air) Regulation s 16(2): [9.600] cl 38: [9.1250] s 17: [9.610], [9.1820] Schs 2 to 4: [9.1250] s 17(1): [9.610] Protection of the Environment s 17(3): [9.610] Legislation Amendment Act s 18: [9.610] 2011 : [13.370] s 19: [9.610] s 20: [9.610] Protection of the Environment s 22: [9.610] Legislation Amendment Act 2014 s 23: [9.610] Sch 2.1, item 6: [9.1400] Pt 5: [13.790]

Protection of the Environment Operations Act 1997 - cont ss 24A to 24J: [9.1480] s 25: [9.610] s 27: [9.610] s 28: [9.620] s 29: [9.620] s 29A: [5.1090] s 36: [9.620] s 37: [9.620] s 38: [9.620] s 43: [13.820] s 43(d): [9.780], [9.870], [13.820], [13.1000] s 44: [9.670] s 45: [9.710], [9.760] s 45(b): [2.470], [9.730] s 45(d): [9.710] s 45(e): [9.1620] s 45(fl)(i): [9.890] s 45(1): [9.2010] s 47: [9.1200] s 47(1): [9.680], [9.1540] s 47(3): [9.680] ss 47 to 49: [9.670], [9.760], [9.880] s 48: [9.1200], [13.1000] s 48(2): [9.1540] ss 48 to 49: [9.1500] s 49: [9.1200] s 50: [9. 700] s 52(1): [6.110] s 52(2): [6.110] s 55: [9.790] s 55(2): [9.790] s 58: [9.740], [9.1050] s 58(6): [9.740], [9.2010] s 61: [9.2020] s 63: [9.740] s 64: [9.1200), [9.1500] s 64(1): [9.1540] s 64(2): [9.1460] s 65: [9.740] ss 65 to 76: [9.740] s 66: [9.740], [9.1800] s 66(2): [9.1800] s 66(3): [9.1800] s 66(6): [9.740], [9.2040], [9.2090] s 67: [9.740] s 68: [9.740] s 68(3): [9.750] s 69: [9.740], [9.1620] s 69(d): [9.740] s 70: [9.740], [9.2860] s 71: [9.740], [9.2860] s 72: [9.740], [9.2860] ss 75 to 76: [9.740] s 77: [9.760] s 78: [5.50], [9.770], [9.2010] s 79: [9.760]

s 81: [9.760] s 82: [9.760] s 86: [9.910] s 86(1): [9.1000] s 87: [9.2460] s 90: [9.910] s 91: [9.1500], [9.2870] s 91(1): [9.930] s 91(1)(a): [9.940] s 91(2): [9.930], [9.1990] s 91(4): [9.950] s 91(5): [9.930], [9.940], [9.1200], [9.1540] s 92(1): [9.930], [9.1980] s 92(2): [9.930], [9.1980] s 93: [9.930] s 94(2): [9.910] s 95: [9.960] s 96(1) : [9.960] s 96(2): [9.960], [9.1980] s 96(3): [9.960] s 96(3A): [9.890] s 97: [9.960], [9.1200], [9.1500] [9.1540] ' s 98: [9.960], [9.1980] s 100(2): [9.910] s 101: [9.1990] s 101(1): [9.970) s 101(2): [9.970], [9.1980) s 102: [9.970], [9.1200] s 103: [9.970], [9.1980] s 104: [9.910], [9.980] s 104(2): [9.1980] s 104(4): [9.960], [9.1980] s 106: [9.980] s 107(2): [9.980] s 114: [9.1480] s 114(2): [9.1200] s 114(3): [9.1200] s 115: [2.600], [9.1110], [9.1380], [10.310] s 115(1): [9.1540], [9.2490] s 115(1)(a): [9.1110] s 115(1)(b): [9.1110] s 115(2): [9.1130] s 115(3): [9.1110] s 116: [9.1110] s 116(1): [9.1540] s 116(l)(a): [9.1110] s 116(1)(b): [9.1110] s 116(2): [9.1540] s 116(2)(a): [9.1110] s 116(2)(b): [9.1110] s 116(2)(c): [9.1160] ss 116(2)(c) to (d): [9.1110] s 116(4): [9.1130] s 117: [9.500], [9.1110] s 118: [2.640], [9.1180], [9.1190], [9.2490] s 119: [2.660], [2.680], [9.1110]

s 120: [2.560], [2.630], [9.780], [9.860], [9.1210], [9.1220], [9.1440], [9.1500], [9.2530], [9.2550] s 120(1): [1.260], [2.670], [9.1540], [9.1950], [13.470] s 122: [2.560], [9.780], [9.790], [9.870], [9.1210], [13.820], [13.1000] s 123: [9.1200] s 124: [9.1360], [9.1430] ss 124 to 26: [9.1430] s 125: [9.1360], [9.1430] s 126: [9.1360), [9.1430] s 128: [9.1270], [9.1500] s 128(1): [9.1240] s 128(1A): [9.1240] s 128(2): [9.1260], [9.1430] s 128(3): [9.1240] s 129: [9.880], [9.1540] s 129(1): [9.1280] s 129(2): [9.1280] s 132: [9.1200] s 133: [9 .1990] s 133(1): [9.1290] s 133(2): [9.1290] s 133(4): [9.1290] s 134: [9.1290], [9.1990] ss 135A to 135D: [9.910] s 135B: [9.1030] s 136: [9.1330] s 137(1): [9.1330] s 137(2): [9.1330] s 137(3): [9.1330] s 139: [9.1360] s 140: [9.1360] s 141: [9.1200] s 142A: [9.870], [9.1200], [9.1380], [9.1390], [9.1500] s 142A(l): [9.1540], [9.2530] ss 142B to 142E: [9.870] s 143: [9.1200], [9.1390], [9.2500] s 143(1): [9.1380], [9.1540], [9.2530] s 143(2): [9.2500] s 143(3): [9.2500] s 143(3A): [9.2500] ss 143 to 144: [9.1500] s 144: [9.1200], [9.1380], [9.2510] s 144(1): [9.1540], [9.2530] ss 144A to 146E: [9.1510] s 144AA: [9.2520] s 144AA{l): [9.1540], [9.2520] s 144AA(2): [9.2520] s 144AB: [9.1200] s 144AB(l): [9.2530]

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Table of Statutes l OJ?

Environmental Law Handbook

Protection of the Environment Operations Act 1997 - cont s 144AB(2): (9.2530] s 144AB(5): [9.2530] s 144AC(1): (9.2540] s 144AC(2): (9.2540] s 145: (9.2550] s 146: (9.1510], (9.2550] ss 146A to B: (9.2550] s 147: (9.1410] s 147(1): [9.1400] s 148: [9.1400], [9.1420] s 148(1): (9.1400] s 148(2): (9.1400], (9.1410] s 148(3): [9.1400] s 148(7): [9.1400] s 148(8): (9.1400] s 152: [9.1400], [9.1540] s 153(1): (9.1400] s 153(2): (9.1400] s 153A: [9.1420], (9.1540] ss 153A to 153B: [9.1420] s 153B: [9.1420] s 153B(2): [9.1540] s 153C: [9.1420] s 153D: [9.1420] ss 153D to 153F: [9.1420], [9.1540] s 153E: [9.1420] s 153F: [9.1420] s 161: [9.910], [9.1020] s 167: [2.570] s 169(1): [9.1540] s 169(1)(6): [9.1540] s 169(1)(c): [9.1540] s 169(1A): [9.1540] s 169A(1): [9.1540] s 169A(2): [9.1540] s 169A(7): [9.1540] s 169B: [9.1540] s 169C: (9.1530] ss 169 to 169B: [9.1870] s 172: (9.1560] s 173: (9.1590] s 174: (9.1580] ss 174 to 179: [9.740] s 175: (9.1580] s 177: (9.1600] s 178: (9.1600] s 179: [9.1600] s 180: (9.1570] s 182(1): (9.1570] s 183: (9.1570] s 184: (9.1740], [9.1760] s 187: (9.1490], (9.1740] s 188(3): (9.1490], (9.1740] s 191: (9,750], (9.1770] s 192: (9.1770] s 193: (9.1770] s 196: (9.1750] s 196(2): [9.1750]

s 196(3): (9.1750] s 197: (9.1750] s 198: (9.1750] s 199A: [9.1750] s 203(1): (9.1760] s 203(2): (9.1760] s 203(3): (9.1760] s 203(5): [9.1760] s 203A: (9.1760] s 203A(2): (9.1760] s 205: [2.660] ss 210A to 210B: [9.2540] s 210C(1): [9.2540] s 210C(2): [9.2540] s 210D(1): [9.2540] s 210D(2): [9.2540] s 210D(3): [9.2540] s 210E: (9.2540] s 211(1): [9.1780] s 211(2): (9.1780] s 211(3): [9.1780] s 212(1): (9.1780] s 212(2): [9.1790] s 212(3): [9.1790] s 212(4): [9.1790] ss 212C to 212D: [9.640] s 213: [9.2660] s 215: [9.2070], (9.2530] s 215(2): [9.1890] s 217: [2.890], [9.1720] s 218(1): [9.1720] s 218(3): (9.1720] s 218(4): [9.1720] s 218(6): [9.1720], [9.1730] s 219: (2.890], [9.2660] s 219(1): [9.2070] s 219(2): [9.2070], [9.2660] s 219(3): (9.2070] s 222: (9.1480] s 223: (9.1490] s 224: (9.1490] s 227: [9.1490] s 228: (9.1480] ss 230 to 233: (9.1930] s 236: [9.1930] s 238: (9.1930] s 245: [9.1940] s 245(a): (9.1920] s 245(c): [9.1920] s 246(1)(a): [9.1920] s 246(1)(6): [9.1920] s 247(1)(a): [9.1920] s 247(1)(6): [9.1920] s 249: (9.1900], (9.1940] ss 249 to 250: (9.1900] s 250: [2.660], (9.1900], (9.1940], (9.1950] s 250(1)(d): (9.1580] s 250(1)(e): (2.660], (2.670] s 250(1A): (9.1900] s 251: (9.1940]

s 252: (2.880], (9.2660], (13.450] s 252(1): (9.2060] s 252(3): (9.2060] s 252(6): [9.2060] s 252(7): [9.760] s 253: [2.690], (2.880], (9.760], (11.980], (13.450], (13.840], [18.610] s 253(1): (9.2060] s 253(2): [9.2060] s 253(4): [9.2060] s 253A: [9.1970] s 253A(1A): [9.1970] s 253A(4)(d): (9.760] s 257: (9.1460], [9.1470] s 263: (9.640] s 264: (9.910], [9.1010] s 265(2): (9.1010] s 267: (9.1010] s 267A(2): (9.910] s 267B: (9.910], (9.980] s 268: (9.2120] s 269: (9.2120] s 270: (9.2120] s 275: (9.640] s 275(a): [9.1060] s 275(6): [9.1060] ss 275 to 6: [9.1060] s 276: [9.1060] s 277: [9.1080] s 278: (9.1060] s 280: (9.1090] s 282: [9.1090] s 284: [9.1550], [9.1990] s 287: [9.1710] s 289: [9.960] s 289A: (9.2540] s 290: [9.2120] s 293(1): (9.1610] ss 293 to 295: [9.740] ss 293 to 295L: (9.1620] s 295N(2): [9.1640] s 295Y(1): (9.1670] s 295Y(6): (9.1670] ss 295Y to 295ZA: [9.740] s 295Z(1): (9.1670] s 296(1): (9.1680] ss 296 to 307: [9. 740] s 298(2): (9.1680] s 299: (9.1680] s 300(1): (9.1680] s 300(2): (9.1680] ss 302 to 303: (9.1680] s 303: (9.1680] s 303(6): (9.1680] s 303(7): (9.1680] s 303(8): (9.1680] s 304: (9.1680] s 306: (9.1680] s 307: (9.1680] s 308: (9.2040]

cl 79H: (9.1670] cl 791: (9.1670] cl 79L: [9.1670] cl 790: [9.1670] cl 79P: (9.1670] cl 79V: (9.1670] cl 79W: (9.1670] cl 83: (9.1490] cl 86: (9.640] cl 91: [9.530] cl 96: (13.1070] cl 96(a1): (13.1070] cl 97: [13.1070] cl 98B(1): (9.1420] cl 98B(2): [9.1420] cl 98C: [9.1420] cl 98E: (9.1420] cl 99: [9.910] cl 105: (9.1680] cl 106: (9.2040] cl 109: [9.1380] Ch 4: (9.2050] Ch 7, Pt 1: [9.640] Pt 1: [9.1670] Sch 5: (9.860] Sch 6: (9.1480], [9.1500]

Protection of the Environment Operations Act 1997 - cont s 308(2): (9.1550] s 309(2): [9.2040] s 315: (9.580] s 316: (9.1710] s 317: [9.1700] s 320(3): (9.2040] s 322: (9.2130] Ch 2: (9.590] Ch 3: (9.640] Ch 8: [9.2660] Pt 5: (9.1250] Pt 5.2: (9.1110] Pt 6: [9.1250] Pt 8.3: [2.660], [9.2660] Sch 1: [9.640], [9.670], (9.680], [9.690], (9.780], (9.1220], (9.1250], (14.1270] Sch 1, cl 15: (9.2860] Sch 1, cl 15A: (9.2860] Sch 1, cl 24: (13.460], (13.820] Sch 1, Pt 1: (9.670] Sch 1, Pt 2: (9.670] Sch 1, Pt 2, cl 48: (9.2470] Sch 1, Pt 2, cl 48(4): [9.2470] Dictionary: (9.930], (9.1070], [9.1120], [9.1140], [9.1210], [9.1220], [9.1230], (9.1280], [9.1380], [9.1750]

Protection of the Environment Operations (Hunter River Salinity Trading Scheme) Regulation 2002: (9.1630]

Protection of the Environment Operations (Clean Air) Amendment (Cruise Ships) Regulation 2015: (9.2320]

Protection of the Environment Operations (Noise Control) Regulation 2008 ell 50 to 52: (9.1340]

Protection of the Environment Operations (Clean Air) Regulation 2010: (9 .1250], [9.2320] cl 10: (9.1300] cl 11: [9.1300] cl 12: [9.1310] cl 12(1): (9.1310] cl 12(2): [9.1310] cl 12(4): [9.1310] Pt 2: (9.1310] Pt 3: (9.1300] Pt 6, Div 5: (9.510] Sch 6, cl 44: (9.1250] Sch 8: (9.1310] Sch 8, Pt 1: [9.1310] Sch 8, Pt 3: (9.1310]

Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2014: [9.530] cl 3(1): [9.530] ell 5 to 6: (9.530] cl 7: [9.530] cll 9 to 10: (9.530] cl 11: [9.530] cl 15: [9.530] cl 16: [9.530] cll 16 to 18: [9.530] ell 16 to 22: [9.530] cl 19: (9.530] cl 20: [9.530] cl 2i: [9.530] cl 22: [9.530] ell 23 to 24: (9.530]

Protection of the Environment Operations (General) Regulation 2009: (9.1650], (9.1670], (9.2050] cl 10: (9.1660] cl 48: (6.110] cl 56: (9.860] cl 79C: (9.1670]

Protection of the Environment Operations (Waste) Regulation 2014 cl 3(1): (9.2470] cl 7: [9.2440] ell 11 to 12: [9 .2440] Pt 2: (9.2440]

Protection of the Sea (Prevention of Pollution from Ships) Act 1983 s 9: [9.2320] s 11: [9.2320] s 21: (9.2320] s 22: (9.2320] s 26D: (9.2320] s 26F: (9.2320] s 26AB: (9.2320] Public Finance and Audit Act 1938: [17.700] Radiation Control Act 1990: [1.80], [9.320], (9.380] s 3(2): [9.330] s 3(3): [9.330] s 4(1): (9.340], [9.350], [9.360] s 6: (9.340] s 6(1): (9.340] s 6(2): (9.340] s 6(3): (9.340] ss 6 to 9: (9.320] s 7: (9.350] s 8: [9.370] s 13C: [9.350] s 14: (9.370] ss 14 to 14B: (9.360] s 15: [9.380] s 18: [9.380] s 19: [9.380] s 21: (9.380] s 29: (9.320] s 30: [9.320] s 33A: [9.380] Pt 3A: [9.380] Pt 4A: (9.390] Radiation Control Amendment Act 2010: (9.320] Radiation Control Regulation 2013: [9.390] cl 6: [9.360] cl 8: [9.340] ell 9 to 11: (9.350] cl 12: (9.370] cll 12 to 13: (9.370] cl 13: [9.370] cll 15 to 25: (9.360] cl 26: (9.390] cl 27: (9.390] cl 28: [9.390] cll 29 to 32: (9.390] cl 34: (9.390], (9.2560] cl 35: (9.390] cl 36: [9.390] ell 37 to 39: [9.390] cl 40: (9.390] cl 41: (9.390] cl 42: (9.390] cl 43: (9.390] cl 44: [9.390]

l QJg

Table of Statutes

Toe Environmental Law Handbook Radiation Control Regulation 2013 -cont cl 45: [9.390] cl 46: (9.390] Pt 4: [9.390] Sch 3: [9.340]

Real Property Act 1900: (8.190], [15.750] s 45A: [14.1060] Pt 14A: [14.860] Regional Forest Agreements Act 2002 s 8: [13.410] Rivers and Foreshores Improvement Act 1948 Pt 3B: (14.1130] Roads Act 1993: [5.370], [6.130], [12.1020], [18.310], [18.1310] s 88: [6.70] s 138: [5.2740], [6.130] Rural Fires Act 1997: [5.370], [9 .1290], [12.1460] s 100B: [5.2740] Rural Lands Protection Act 1998: (11.290], [11.520], (12.740], [16.210] s 136: [15.10] Pt 10: [11.520] Rural Lands Protection Amendment Act 2008: [16.210] Snowy Hydro Corporatisation Act 1997: [15.160] Soil Conservation Act 1938: (9.1220], (11.440], [11.460], (11.470], [13.790], [14.1240], [16.40], (16.50] s 6: [16.50] s 10(1): (11.450] s 10(5): [11.450] s 11: (11.450] s 13: [11.460] s 14: [11.460] s 14A: [11.460] s 15A: [11.500] s 15A(1): [11.500] s 15B: [11.500] s 15C: [11.500] s 15E: (11.500] s 15F: [11.500] s 15G: (11.500] s 16: (11.450] s 17: [16.50] s 17(1): (11.450] s 18: (11.480], [11.500] s 18(1): [11.480] s 18(2): [11.480]

s 18(7): [11.480] s 18(9): [11.480] s 18(12): [11.480] s 18(13): [11.480] s 19: [11.490] s 20(1): (11.450] s 21: (11.490], [12.1360], [16.50] s 22: [11.490], [11.500] s 22(1): [11.490] s 22(1)(b): [11.490] s 22(3): [11.490] s 22(6): [11.490] ss 22B - E: [11.460] s 22H: [11.460] s 221: [11.460] s 22K(2)(a): [11.460] s 22K(3): [11.460] ss 22L- P: (11.460] s 23: [16.50] s 31A: [11.470] Standard Instrument Principal Local Environmental Plan Regulation 2006 cl 3.1: (15.1050] cl 6: (15 .890] cl 7: [15.780] cl 8: [15.780] cl 9: [15. 780] cl 11: [15.780] cl 15: [15.780] cl 17: (15. 780] cl 18: (15.780] cl 19: (15.780] Sch 2: [15.1050] State Emergency and Rescue Management Act 1989: (12.1460], [14.810] State Environmental Planning (Permissible Mining) Act 1996: [1.150] State Owned Corporations Act 1989: (4.580], [13.150] s 20G: (13.150] State Records Act 1998: [17.680] s 21: [17.680] Pt 6: [17.680] State Revenue and Other Legislation Amendment (Budget Measures) Act 2012: (18.110], [18.790], (18.950] State Revenue and Other Legislation Amendment (Budget Measures) Act 2014: (18.110] State Water Corporation Act 2004: (15.980] s 4: (15.980] s 4(7): (15 .980]

Stock (Chemical Residues) Act 1975: [11.880] s 4: [11.880] s 7: [11.880] s 7A: [11.880] s 8: (11.880] s 12: [11.880] s 12D: [11.880] Stock (Chemical Residues) Regulation 2010: [11.880] Summary Offences Act 1988: (13.630] Surveying Act 2002: [12.1020] Surveying and Spatial Information Regulation 2006 cl 45: [14.1060] cl 48(1): (14.850] Pt 2, Div 5: [14.860] Sydney Cove Redevelopment Authority Act 1968: [1.130] Sydney Harbour Authority Act 1984: [1.130] Sydney Harbour Tunnel (Private Joint Venture) Act 1987: [1.140] s 8: (2.510] s 10: (2.510] Sydney Water Act 1994: (1.70], [9.830], [9.860] s 10: (9.800] s 12(1)(b): (9.800] s 21(1)(b): (9.830] s 49(1): [9.840] s 49(2): (9.840] s 55: (9.840] Sydney Water Catchment Management Act 1998: [15.970], [16.330], [16.390] s 49: (4.550] Sch 2, cl 17: [16.330] Sydney Water Corporation Act 2004: [16.330], (16.390] Threatened Species Conservation Act 1995: [1.100], [2.80], [2.140], (5.850], [6.60], [8.30], (8.160], [8,230], [9.1290], [11.800], [12.150], (12.260], (12.360], [12.370], (12.380], (12.390], (12.410], (12.420], [12.430], (12.440], [12.480], [12.510], (12.540], [12.550], [12.570], [12.590], (12.600], [12.610], (12.650], (12.660], (12,670], (12.700], (12.720], [12.740], (12.810], (12.830], [12.880], [12.1040], [12.1110], [12.1200],

Threatened Species Conservation Act 1995 - cont (12.1210], (12.1250], (12.1260], (12.1460], [12.1500], [12.1570], (12.1670], (13.370], (13.380], [13.390], [13.790], [14.20], [14.640], [14.650], [16.180], (18.120], [18.320], [19.890], [19.910], [19.920] s 3: [12.380] s 4: [12.390], (12.540] s 4(1): [12.420] s 5A: [12.420], [19.910] s 6: (12.390] s 6(5): (12.410] s 6(6): [12.410] s 7: (12.390] s 7(3 ): [12.410] s 7(4): [12.410] s 8: [12.540], (14.1100] s 9: [12.410] s 10: [12.390] ss 10 - 12: [12.430] s 10(3 ): (12.430] s 11: (12.390] s 12: (12.390] s 13: [12.540] s 18: [12.450] s 19: [12.450] s 19(4): [12.540] s 20: (12.450] s 21: [12.450] s 21(4): [12.450] s 22: [12.450] s 22(5): (12.450] s 23: (12.460] s 23(1): (12.450] s 23(2): (12.450] s 23(4): (12.460] s 23(5): [12.450] s 23A: [12.460] s 23A(3): [12.460] s 24(1): (12.460] s 24(3): [12.460] s 24(4): [12.460] s 25A: (12.440] s 28: (12.460] s 30: (12.460] s 36: [12.460] s 38: (12.480] s 39: (12.480] s 40: [12.480] s 41: (12.480] s 44: [12.480] s 44(1)(a): [12.480] s 47: [12.480] s 50: (12.500] s 55: (12.480] s 56: [12.510] s 58: (12.510] s 59: [12.520]

s 61: [12.520] s 63: [12.520] s 65: (12.520] s 66: [12.520] s 69: (12.530] s 69(2): [12.530] s 70(2): [8.160] s 71: (12.530] s 72: [12.530] s 73: [12.530] s 74: [14.1100] s 79C: [12.1110] s 87(2): [8.160] s 91: [12.590] s 91(1): [12.570] s 91(2): [12.590] s 92(2): [12.570] s 94(1): [12.570] s 94(3): [12.570], [12.1090] s 94A: (12.570], [12.1080] s 95(1): [12.570] s 95(2): [12.570] s 96: [12.580] s 96(5): [12.570] s 97: [12.580] s 98(5): [12.1350] s 104: [12.580] s 105: [12.580] s 106: [12.580] s 107: [12.580] s 109: (12.1110] s 110: [12.1110] s 110(4): [12.1110] s 111: [12.1110] s 111(1): [6.250] s 113: (12 .1110] s 113B: [12.560] s 114: (12.670] s 114(2): [12.670] s 114(3): [12.670] s 114(4): [12.670] s 114(4)(a2): [12.670] s 114(6): [12.670] s 115: (12.670] s 116: (12.670] s 117: (12.670] s 118: (12.670] s 119: (12 .670] s 121: [12. 700] s 122: [12.700] s 124: [12. 700] s 126(2): (12.1320] s 126A: (12.1610] s 126C: [12.1470] s 126D: [12.1470], [13.970] s 1261: (12.1320] s 126I(1A): [12.1320] ss 1261(2) - (5): (12.1320] s 1261(4): (6.60] s 1261(5): (6.60] s 1261( 6): (12.1320], [12.1410]

s 126]: [12.131 O] s 126K: [12.1310] s 126M: [12.1310] s 126N: [12.1310] s 1260: (12.1300] s 126P: [12.1300] s 126R: [12.1300] ss 126S - 126X: (12.1300] s 126Z(2): (12.1320] s 126ZA: [12.1320] s 126ZD: [12.1320] s 126ZH: (12.1330] s 126ZI: [12.1330] s 126ZJ: [12.1330] s 126ZK: [12.1330] s 126ZO: [12.1330] s 126ZZB: [12.1320] s 127B: [12.1260] s 127D: [12.1210], [12.1620] s 127E: [12.1210] s 127E(2): [12.1210] s 127F: [12.1210] s 127G: [12.1620] s 1271: [12.1620] s 127]: [12.1620] s 127L: [12.1620] s 1270: [12.1620] s 127P: [12.1620] s 127S: (12.1620] s 1275(2): (12.1620] s 127U: [12.1620] s 127W(7): (12.1220] s 127X: (12.1210] s 127Z: (12.1220] s 127ZG: (12.1220] s 127ZH: (12.1220] s 127ZJ: (12.1250] ss 127ZJ -127ZK: (12.1510] s 127ZK: (12.1240] s 127ZL: [12.1240] s 127ZL(8): [12.1240] s 127ZN: [12.1240] s 127ZO(l): (12 .1240] s 127ZO(2): [12.1240] s 127ZO(5): (12.1240] s 127ZO(9): (12.1250] s 127ZP(1): [6.60], (12.1240] s 127ZP(2): [6.60], (12.1240] s 127ZP(5): (12.1240] s 127ZP(7): [12.1240] s 127ZP(11): (12.1250] s 127ZQ: (12.1240] s 127ZW: (12.1220] s 127ZZB: (12.1210], [12.1270] s 127ZZC: (12.1270] s 127ZZD: (12.1270] s 127ZZI: (12.1210] s 128A: (12.440] s 135: [12.440] s 14 lF: [12.660] s 1411: (12.660]

l

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Table of Statutes The Environmental Law Handbook

Threatened Species Conservation Act 1995 - cont s 14 lN: [12.660] s 142B: [12.1110] s 142B(l)(b): [12.1260] s 147: [2.880] s 149: [12.1320] s 153: [12.660] s 381A: [18.320] Pt 5 .1: [12.1250] Pt 5A: [12.510] Pt 6: [12.560], [12.770] Pt 7A: [2.140], [12.1200], [12.1410] Pt 8: [12.440] Pt 13: [18.320] Sch 1A, Pt 1: [12.390] Sch lA, Pt 2: [12.390] Sch 1, Pt 1: [12.390] Sch 1, Pt 2: [12.390], [14.640] Sch 1, Pt 3: [12.390], [14.640] Sch 1, Pt 4: [12.390] Sch 2, Pt 1: [12.390] Sch 2, Pt 2: [12.390] Sch 3: [12.540] Sch 7, Pt 7: [2.520]

Threatened Species Conservation (Biodiversity Banking) Regulation 2008 cl ll(l)(c): [12.1210] cl 12: [12.1260] Threatened Species Conservation Regulation 2010 Pt 2: [12.390] Trees (Disputes Between Neighbours) Act 2006: [2.740], [3,710], [12.1050], [12.1060] s 3(1A): [12.1050] s 3(4): [12.1050] s 9: [12.1050] Uniform Civil Procedure Rules 2005 r 42.1: [2.900] r 42.4: [2.920] Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986: [18.1270] s 7(1): [5.20] s 8: [18.1270] s 10: [2.880] Visy Mill Facilitation Act 1997: [13.660] Waste Avoidance and Resource Recovery Act 2001: [1.70], [9.30], [9.2400], [9.2410], [9.2420], [9.2430] s 4(1): [9.2420] s 12: [9.2430]

s 14: [9 .2430] s 15: [9.2420] s 18: [9.2420] Sch 4, cl 12: [9.2410] Waste Minimisation and Management Act 199 5: [9 .2390], [9.2400] s 39: [9 .2410] Waste Recycling and Processing Corporation Act 2001: [9.2450] s 4: [9.2450] s 6: [9.2450] Waste Recycling and Processing Corporation (Authorised Transaction) Act 2010: [9.2450] s 16(1): [9.2450] s 16(2): [9.2450] s 16(3): [9.2450] Water Act 1912: [1.390], [5.30], [14.980], [14.1130], [15.140], [15.160], [15 .520], [15 .540], [16.40], [18.120] ss 5 - 7: [15 .210] s 7: [15.160] s 10(1): [14.1140] s 13A: [14.1140] s 17: [15.330] s 18F: [14.1140] s 20CA: [14.1140] s 21B: [14.1140] s 22C: [15.990] s 55A: [15.440], [15.520] s 88A: [14.1130] s 165(3): [14.1000] s 166: [14.1000] s 166A: [14.980], [14.1020] ss 166C-178A: [14.1000] s 167: [14.1000] s 180: [14.1000] s 180B: [14.1010] s 180D: [14.1010] s 180D(5): [14.1010] s 180E: [14.1010] s 180F: [14.1010] s 180G: [14.1010] s 182: [14.1010] s 186: [14.1000] s 186A: [14.980] Pt 2: [14.1130], [14.1140] Pt 3: [15.160] Pt 4: [15.160] Pt 6: [15 .160] Pt 7: [15.160] Pt 8: [14.990], [14.1000], [14.1010] Pt 10: [15.160] Water Management Act 2000: [1.110], [1.390], [2.470], [2.510],

[2.740], [5.30], [5,370], [5,920], [5.1060], [5.1930], [6.110], [13,790], [14.20], [14.580], [14,980], [14.1040], [14.1080], [14.1210], [14.1260], [15.140], [15.150], [15.160], [15.180], [15.270], [15.280], [15.320], [15.510], [15.520], [15.530], [15.540], [15.570], [15.750], [15.800], [15.810], [15.850], [15.940], [15.950], [15.960], [16.90], [16.270], [16,300], [16.320], [16.380], [18.120], [18 .1120], [18.1310] s 3: [15.280], [16.380] s 4: [18.120] s 5: [15.290] s 5(2): [15.290] s 5(3): [2.470], [15.290] s 6: [15.300] s 8(2): [15 .350] s 9: [15,290], [15.340] s 9(1): [2.470] s 9(1)(6: [15.350] ss 15 -18: [15.320] s 18: [15.340] ss 19 - 21: [15.330] s 20(1)(a): [15 .350] s 21(e): [15.700] ss 22 - 24: [15.330] ss 25 - 27: [15.330] ss 28 - 30: [14.980], [15.330] ss 31 - 33: [15.330] s 34: [15.330], [16.380] s 35: [15.370] ss 35 - 44: [15.320] s 36: [15.380] s 36(3): [15.380] s 37: [15 .390] s 38: [15.400], [15.820] s 39: [15 .400] s 40: [15.410] s 41: [15.410], [15.420] s 42: [15.430] s 43: [15.440], [15.460] s 43A: [15.450] s 45: [15.430], [15.810] s 47: [15.840] s 47(5): [2.510] s 47(6): [2.510] s 48: [15 .350] s 50: [15.320], [15.350], [15.470], [15.700] s 50(2A): [15.360], [15.820] s 50(3): [15.420] s 52: [15.200], [15,220] s 53: [15.200] s 54: [15.230] s 55: [15.240] s 55(3): [15.240] s 56: [15 .550]

Water Management Act 2000-cont s 57: [15.620], [15.630] s 58: [15.620] s 59: [15.560] s 61: [15 .830] s 62: [15.830] s 66: [15.660] s 66(1)(a): [15.660] s 66(1)(6): [15.660] s 66(2): [15.660] s 67: [15.680] s·67(1): [15.680] s 67(2A): [15.680] s 68A: [15.680], [15.810] s 69: [15.670] s 79: [15.810] s 85: [15.570] s 85B: [15.610], [15.960], [15.990] s 87: [15.640], [15.680], [15.810] s 87(1): [15.330] s 87(2): [15.330] s 87(4): [15 .810] s 87(5): [15.810] s 87(7): [15.810] s 88A: [14.980] s 89: [5.2740], [14.1150], [15 .710], [16.380] s 90: [5.2740], [14,980], [14.1160], [15.720], [15.850], [16.380] s 91: [5.2740], [15.730], [16.380] s 91(2) : [14.1170], [14.1180], [18 .1340] s 91(3): [14.1170], [14.1260], [18 .1340] s 91B: [14.1200], [15 .960] s 91C: [14.1200] s 91D: [14.1200] s 91E: [14.1200] s 91F: [14.1200] s 91G: [15.960] s 911: [15 .960] s 92(1): [14.1210] s 92(2): [14.1210] s 92(7): [14.1220] s 93(1): [14.1220] s 93(5): [14.1220] s 93(6): [14.1220] s 93(7): [14.1220] s 93(8) : [14.1220] s 95(3): [14.1230] s 96: [14.1230] s 97(2): [14.1230] s 97(4): [14.1230] s 97(6): [14.1230] s 104(1): [14.1230] s 105: [14.1230] s 106: [14.1230] s 109: [14.1230]

s 110: [14.1210] s 111: [14.1210] s 113: [14.1210] s 118: [15.850] s 119: [14.1220], [15.850] s 120: [15.850] s 122: [15.860] s 123: [15.860] s 124: [15.860] s 125: [15.860] s 142: [15.900] s 143: [15.900] s 148: [15.910] s 155: [15.910] ss 159 - 160: [15.920] ss 162 - 166: [15.920] s 167: [15.930] s 168: [15.930] s 176: [15.930] s 199: [14.1360] s 286: [9 ,800] s 336: [2,880], [14.1200] s 341: [15.600], [15.960] s 342: [15.960] s 343: [15.960] s 344: [15.960] s 345: [15.960] s 346: [15.960] s 347: [15.960] s 347A: [15.960] s 348: [15.960] s 349: [15.960] s 350: [15.960] s 351: [15.960] s 352: [15.960] s 353: [15.960] s 364: [15.960] s 368: [14.1220] s 368(1): [14.1220] s 368(2)(a)(ii): [14.1220] s 368(2)(6): [14.1220] s 368(4)(a): [14.1220] s 389A: [16.140], [16.380] s 393: [15.200] s 401: [14.980], [14.1130] Ch 3: [15.520] Ch 3, Pt 2: [15.520] Ch 3, Pt 3: [14.980], [14.1130] Ch 4: [15.850], [15.900] Ch 4, Pt 1: [15.850] Ch 4, Pt 2: [15.900] Pt 1, Div 4: [15 .850] Pt 3: [15.360], [15.390] Pt 3, Div 8: [15.360] Sch 1: [15.850] Sch 3: [9.800], [15.280] Sch 7: [14.980], [14.1130] Sch 9: [15.440] Sch 9, cl 63: [15.440] Sch 10: [15.520] Dictionary: [18.120]

Water Management Amendment Act 2010 Sch 2: [15.900] Water Management (General) Regulation 2004 Pt 4, Div 2: [14.1160] Sch 1, cl 39: [14.1160] Sch 9, cl 13: [14.980] Water Management (General) Regulation 2011 cl 22: [14.1260], [18.1340] cl 23: [14.1210] cl 24(1): [14.1220] cl 24(2): [14.1220] cl 24(5): [14.1220] cl 26: [14.1230] cl 27: [14.1210] cl 89J(l)(g): [14.1180] cl 115ZG(l)(g): [14.1180] Pt 3: [14.1180] Pt 3, Div 2: [14.1180] Water NSW Act 2014: [4.550], [15.160], [15.980], [16,320], [16.330], [16.360] s 4: [16.330] s 6: [16.330] s 6(1): [15.980] s 6(2): [15.980] s 7: [16.330] s 11: [15.980] s 39: [15 .990] s 40: [15.1000] s 40(3): [15.1000] s 41: [16.330] s 42: [16.330] s 43: [16.330] s 44: [16.330] s 47: [15.1000], [16.330] s 52: [4.550] s 54: [15.1000], [16.330] s 76: [16.330] s 77: [16.330] s 81 : [16.330] s 86: [16.330] Water Rights Amendment Act 2005: [15 .800] Western Lands Act 1901: [4.10], [11.170], [11.360], [11.370], [11.380], [11.430], [13 .180], [13 .240], [13.540], [14.1090] s 2A: [4.30], [4.100] s 18: [11.190] s 18D(l)(d): [11.260], [11.270] s 18D(2): [11.260] s 18E(2)(a): [11.250] s 18E(5): [11.250] s 18DA: [11.380], [11.390], [11.430]

1041

104 2

Table of Statutes

The Environmental Law Handbook

Western Lands Act 1901 - cont s 18DA(8A): [11.410], [11.420] s 18DA(8B): [11.420] s 18DA(2): [11.380] s 18DA(3): [11.380] s 18DA(5): [11.380] s 18DA(12): [11.410] s 18DB: [11.360], [12.1360] s 18DB(4): [11.360] s 28A: [11.250] s 28A(3): [11.170] s 28B: [11.250] s 28BA: [11.270] s 28BB: [11.280], [11.380] s 47: [11.270], [11.410] s 48: [11.270), [11.410) s 49: [11.270) s 49(1)(a)(i): [11.410) s 49(1)(6): [11.270] s 49(1)(i): [11.270] s 49(2): [11.270], [11.410) s 49(2A): [11.410) s 50: [11.410] s 52(2): [11.410] s 52(4): [11.410) Ch B: [4.100] Pt 5: [11.260) Sch 1: [11.190], [11.260) Sch 4: [11.280] Sch 4, cl 3: [11.280] Sch B: [4.30] Western Lands Regulation 2004 cl 17: [11.380] cl 18: [11.390] cl 18(3): [11.390) Sch 3: [11.390] Sch 3(1): [11.390] Sch 4(5): [11.390] Western Lands Regulation 2011: [11.380] Wild Dog Destruction Act 1921: [13.620] Wilderness Act 1987: [1.100], [4.260), [4.440], [5.290], [6.170), [13.390], [18.270] s 3: [4.260) s 6: [4.260], [4.270] s 7: [4.270] s 8(1)(6): [4.290] s 8(1A): [4.280] s 8(3): [4.310] s 8(4): [4.310] s 8(4A): [4.310) s 9: [4.260), [4.440) s 10: [4.290] s 10(2): [4.290] s 11: [4.290] s 12: [4.290] s 14: [4.290]

s 15: [4.460) s 16: [4.290] s 17: [4.300) s 18(7): [4.300] s 21: [4.300) s 27: [2.880], [4.300) Work Health and Safety Act 2011: [9.390), [9.520] Sch 1: [9.520] Work Health and Safety (Mines) Act 2013: [18.980] Work Health and Safety Regulation 2011 cl 10(1): [9.520) cl 10(1A): [9.520] ell 329 to 340: [9.520] ell 341 to 343: [9 .520) cl 344: [9.520] ell 346 to 348: [9.520] ell 349 to 350: [9.520] cll 351 to 388: [9.520] Ch 7: [9.520] World Heritage Properties Conservation Act 1983: [1.480], [2.410]

NORTHERN TERRITORY Fisheries Act s 53(1): [19.300]

QUEENSLAND Fisheries Act 1994 s 3(1): [19.60) s 3(5): [19.60) s 14: [19.300) Local Government Act 1993 s 68: [17.370]

SOUTH AUSTRALIA Climate Change and Greenhouse Emissions Reduction Act 2007: [10.40] Electricity (General) Regulations 2012: [10.210] Fisheries Management Act 2007 s 7(5): [19.60] s 60: [19.300]

VICTORIA Climate Change Act 2010: [10.40] Victorian Energy Efficiency Target Act 2007: [10.210]

TREATIES AND CONVENTIONS

Convention on the Conservation of Migratory Species of Wild Animals (1979): [12.80], [12.90]

Agreement between the Government of Australia and the Government of the People's Republic of China for the Protection of Migratory Birds and their Environment (1986): [12.80]

Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property: [17.20]

Agreement between the Government of Japan and the Government of Australia for the Protection of Migratory Birds and Birds in Danger of Extinction and their Environment (1974): [12.80] Agreement on the Importation of Educational, Scientific and Cultural Materials: [17.20] Convention Concerning the Protection of the World Cultural and Natural Heritage: [17.20], [17.40] Art 4: [17.40] Art 11: [17.40] Art 11(4): [17.40] Art 15: [17.40] Convention for the Prevention of Pollution from Ships (1973): [9.2150) Convention for the Protection of Cultural Property in the Event of Armed Conflict: [17.20] Convention for the Protection of the World Cultural and Natural Heritage (1972): [12.80] Convention for the Safeguarding of Intangible Cultural Heritage: [17.20] Convention on Biological Diversity (Biodiversity Convention): [12.40], [13.110], [15.70] Art 1: [12.40] Art 6: [12.50] Art 7: [12.50] Art 8: [12.50] Art 14: [12.50] Convention on International Trade in Endangered Species: [12.60] Art IV: [12.70] Art XV: [12. 70) Art III: [12. 70] Convention on Wetlands of International Importance (1971): [12.80], [15.70) Art 2: [14.670]

Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter: [9.2330] Convention on the Protection and Promotion of the Diversity of Cultural Expressions: [17.20] Framework Convention on Climate Change: [13.110], [15.70]

International Charter for the Conservation and Restoration of Monuments and Sites: [17.30] UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects: [17.20]

1043

Index A Aboriginal cultural heritage protection

Aboriginal Cultural Heritage Advisory Committee, [20.800] advice from, [20.800] Aboriginal heritage impact permits, [20.730] Commonwealth legislation, [20.840] Indigenous people, and cultural heritage, [17.10] national parks, co-management of, [20.760] NSW, in, [20.720] objects finding, [20.750] protection of places and, [20.730] Environmental Planning and Assessment Act, [20.820] Heritage Act, [20.830] Local Government Act, [20.810] offences, [20. 740] ownership, Aboriginal, of protected areas, recognition of, [20.760] relic, definition, [20.830] Aboriginal land

Aboriginal Land Rights Act 1983 (NSW), [20.70] claiming land, [20.100] test, application of, [20.110] review of, [20.210] structure, [20.80] who can claim land, [20.90] constitutional recognition, [20.30], (20.60] declarations, protective, in respect of, (20.850] emergency declarations in respect of, (20.8 60] Hindmarsh Island, case study, [20.870] environmental law, and land claims in respect of, [1.330] native or customary title, common law right to, (1.330] fishing, agreements to permit hunting, gathering or, (20.180]

historical background, [20.10] 1967, Aboriginal people before, [20.20] hunting, agreements to permit fishing, gathering or, (20.180] land claims, (20. 770] land rights legislation, [20.40] NSW Aboriginal Land Rights Act, [20.70] native title, and, [20.50] Local Aboriginal Land Councils (LALC) claiming land, (20.100] test, application of, [ 20. 11 o] dealings in land preconditions for, [20.130] restrictions on, [ 20.140] disposal of land by, (20.120] functions, other, of, (20.200] leases between Environment Minister and, (20.780] membership, [20.80] mining on land council land, [20.170] rates, exemption of land held by, (20.160] system, establishment of, [20.80] management of land, (20.790] native title - see Native title 1967 referendum, [20.30] protected areas land connected with, [4.120] ownership, recognition of Aboriginal, (4.250] Register of Aboriginal Owners, [20.190] Access licences water, (15.550] allocation account, crediting, [15.600] available water determination, varying, (15.590] case study, as to reduction of existing entitlements, (15.700] compensation, property in access rights and, [15.810] conditions, licence, (15 .650] changing, [15.680] discretionary, [15.660] mandatory, [15.660] determining entitlement, (15.580]

duration, [15.670] entitlement, how much is, [15.560] exceeded, where entitlement is, [15.610] general security, (15.630] high security, (15.630] overallocation, [15.690] supplementary, [15.640] types of, [15.620] Water Management Act 2000 (NSW), under, (15.510] Accounts

water allocation, [15.570] Accredited certifiers -

see Certifiers

Accretion

erosion and, [14.840] common law doctrine, (14.850] modification, [14.860] Acquisition

fishing entitlements, government acquisition of, [19.500] mining, of land under approval conditions, [18.690] how much must be paid, [18.700] Administration and enforcement

civil enforcement proceedings, by members of public, (9.2060] criminal prosecutions, by members of public, [9.2070] EPA, power to direct public authorities, [9.1690] investigation, (9.1740] notices - see Notices penalties - see Penalties prosecution excluded offences, (9 .1730] powers, [9.1720] public participation - see Public participation remedies - see Remedies sentencing options - see Sentencing options warnings, offences and, [9 .1780] Administrative law

judicial review, (2.360] depth of consideration required, (2.440] grounds for, [2.370]

1046

The Environmental Law Handbook cont legitimate expectation, case studies in respect of, [2.390] manifest unreasonableness, (2.450) case study in respect of,

Administrative law -

[2.460]

misuse of power, where decision-maker exceeds power or, (2.400) relevant considerations, [2.410]

no opportunity to be heard, where, (2.380] obstacles to, (2.490) reports, case study on, [2.500]

key principles, case studies in respect of, (2.420) Parramatta Park case, (2.430) legislative prioritisation of matters to be considered, and, (2.470) merit appeal, (2.350) public officials, addressed to, (2.10) satisfied of particular matters, where decision-maker required to be, (2.480) Advertised development

appeals, (5.1100) class 1 aquaculture development, as type of, (5.1080) definition, [5.1040) development control plan, development identified by, [5.1090) EPI, development identified by, (5.1090) nominated integrated development, as type of, [5.1060] notification, (5 .1100) special category of development, as, (5.1040) threatened species development, as type of, [5.1070) types of, [5.1050) Advertising

controlling, as development, [5.160) designated development, advertisement by consent authority, [5.970) errors in, and mandatory notification requirements, [5.1170) Affordable housing contributions

accountability, (5.2210) definition, [5.2200) nature of s 94F, (5.2200) scope of s 94F, (5.2200)

B Index Agreements

forest, (13.310) content, minimum requirements for, (13.340) public participation in, (13.430) varying, (13.420) where NSW forest agreements apply, (13.320] heritage conservation beaches, injunctions to restrain, (17.480) land, running with, (17.4 70) Minister, power to enter into, (17.450) termination, (17.460) variation, (17.460] mining, effect of voluntary conservation agreements, (18.320) Agriculture

Crown land - see Crown land definition, (11.30) designated development, (11.60) development consent, requirement for, (11.20) extensive intensive agriculture, distinction, (11.20) farmers, obligations of, [11.10) intensive extensive agriculture, distinction, (11.20) livestock agriculture, definition, [11.40) plant agriculture, definition, [11.40] land clearing - see Land clearing Livestock Health and Pest Authorities - see Livestock Health and Pest Authorities

Local Land Services (LLS) establishment, (11.290) functions, (11.290] local land services, definition, (11.290) mining, and agricultural land objection by landholders on grounds of, (18.370) strategic, (18.330) noxious weeds - see Noxious weeds

overview, [11.10) pest control eradication orders, [11.540) Local Land Services, responsibility for, (11.520) orders, power to make, [11.530) pesticide - see Pesticides rates, power to levy, (11.300) rural land, and land sharing communities, (11.140)

LEPs, protection through, (11.110) planning principles, (11.130) protection, (11.100) SEPPs, protection through, (11.130) subdivision principles, (11.130] soil conservation - see Soil

cont applicant, from refusal to grant development consent or unacceptable conditions, [5.2230) council's rights and obligations, [5.2260] other government bodies, right to be heard,

Appeals -

[5.2270] time for, [5.2250]

conservation

State Environmental Planning Policy 3 0 - lntensi ve Agriculture (SEPP 30), (11.50) State significant development, (11.70) travelling stock reserves, (11.310) access, use and, (11.340) SEPP (Infrastructure) 2007, (11.320) vegetation clearance, (11.80) state protected land, (11.90) timber, removing other vegetation and, (11.330) water, irrigated agriculture as major consumer of, [15.40) Air pollution

blanket prohibition against, (9.870) licensing scheduled activities, (9.880) motor vehicle emissions, (9.1020] smoke abatement notices, (9 .1030) residences, smoke from, (9.1030) tier two offences - see Tier two offences Amalgamation

councils, of Barnett Report, (8.370) environmental issues, key, (8.370] Local Government Reform Task Force, (8.370) Amendment

designated development, of application, (5.980) case study, [5 .990) development application, to, [5.670) Appeals

advertised development, in respect of, [5.1100) designated development, review and, (5.1020) Planning Assessment Commission, review by, [5.1030) development application, in respect of, (5.870) development, in respect of

construction certificates, in respect of, (5.2300) objectors, by, [5.2280) occupation certificates, in respect of, [5.2300) subdivision certificates, in respect of, (5.2300) integrated development, in respect of, (5.400] Approvals

acquifer interference approvals, (14.1190) aquaculture, (19.780) building - see Building Commonwealth - see Commonwealth environmental assessment and approval

environmental law and, (1.260) environmental planning instruments - see Environmental planning instruments (EPis)

heritage legislation, under Heritage Act, under, [17.310) appeals against, [17.360] application, making, [17.320]

consideration of application, [17.330 ] determination of application, [17.340] modifying, [17-350] other legislation, under, [17.370] appeals, relating to prescribed applications, [17.380]

mining Mining Act, approvals under, (18.130) new mine, for, [5.30) process, integrating, [5.40) rivers and lakes, applications for, (14.1210) determinations, (14.1230) public participation, (14.1220) Water Management Act 2000, approvals under, (14.1150) activity approvals, (14.1170) controlled activity approvals, (14.1180)

water management work approvals, (14.1160) water use approvals, (14.1150)

Audits

environmental - see Environmental audits

fisheries, compliance audits, (19.640) mining and prospecting operations, of, (18.780)

Aquaculture

approvals, (19.780) definition, (19.680) disease, (19.770) industry development plans, (19.690) leases, (19.740) rights granted by, (19.750) management of, (19.670) marine parks, in, (19.760) permits, (19.700) appeals, (19.730) conditions, (19.720) refusal, (19.710) regulation, case study of seeking damages for negligent, (19.800) State Environmental Planning Policy No 62 - Sustainable Aquaculture, (14.520), (19.790) aims, (14.520)

Australian Heritage Council establishment, (17. 720) functions, (17. 720] Australian Pesticides and Veterinary Medicines Authority

agricultural and veterinary chemicals, registration by, (11.560) chemical products, registration or approval, (11.560] public participation notice of application, [11.660]

notice of approval or registration, [11.670] reconsideration of approvals or registration, [11.680] suspension or cancellation,

Aquatic ecosystems

endangered populations, (19.920) critical habitat, (19.890) fishways, (19.900) habitats, protection of aquatic, (19.810) licences and stop work orders, (19.940) marine parks declaration of, (19.860) fishing in, (19.880) management, (19.870) noxious species, (19.900) offences, (19.930) reserves, aquatic, (19.820) establishment, (19.830) management, (19.840) mining in, (19.850) spawning fish habitat, (19.900) threatened species conservation, (19.910) mangroves, seagrasses and marine vegetation, [19.960) threatening processes, (19.950) unlisted species, (19 .970) Aquifers

aquifer interference approvals, (14.1190) mining, aquifer interference activities, (18.120) Assessment leases

mining, (18.130) grant, renewal and, (18.170) purpose, (18.170) petroleum, (18.1000)

[11.650]

enforcement of Code, (11.690) establishment, (11.560) functions, (11.570) liability of, case study, (11.700) persistent organic pollutants, control of, (11.5 80) registers, requirement to keep records and, (11.640)

B Banks

ownership of beds and, (14.1040) tidal, (14.1040) river, and beds, development on, (14.1100) BASIX

greenhouse gas emission, development applications and reductions in, [5.730) new residential developments, requirement to undergo certification process, (15.1040) water use, development applications and reductions in, (5.730) web tool, as, (15.1040) Beaches

coastal zone management plans for, [14.810) heritage conservation agreements, injunctions to restrain, (17.480)

1047

1048

The Environmental Law Handbook Behaviour approvals Approvals

see

Biobanking

assessment methodology, (12.1260] biodiversity credits creation of, [12.1210] trading in, (12.1220] developers, biodiversity statements for, [12.1240] development, as alternative option for regulating impacts of, (12.1200] framework of scheme, (12.1200] registers, public, (12.1270] sites first site, (12.1230] uptake, slow, of, [12.1280] use of, (12. 1250] Biodiversity

Australia ' s Biodiversity Conservation Strategy, (12.110] biobanking - see Biobanking Biodiversity Conservation Act, proposed law reform,, (12.1670] Biodiversity Convention, [12.40] obligations, (12.50] certification of land, [12.1290] agreements, biodiversity certification, (12.1330] applications for, (12.1310] assessment methodology, (12.1300] orders, biodiversity certification, (12.1320] Commonwealth framework, (12.100] Convention on International Trade in Endangered Species (CITES) Australia, ratification by, (12.60] obligations, [12. 70) development applications, consideration of impacts on, [12.1070) ecosystem services, and, [12.20) Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), (14.660) flying foxes, case study of international obligations and, (12.240] main law protecting biodiversity, as, [12.120) protection of biodiversity by, (12.130) international treaties, [12.30] enforcement in Australia, [12.90] ha bi tat-specific treaties, (12.80]

C Index

species-specific treaties, [12.80] law reform, proposed, [12.1670] LEPPs, use for conservation purposes, [12.860], (12.910] case study, [12.910] Director-General, and consultation with, (12.970] standard LEP critical habitat of endangered species, and development on, [12.930] environmental zones and, [12.930] National Reserve System (NRS), (12.140] National Strategy for the Conservation of Australia's Biological Diversity, (12.110] NSW biodiversity legislation, (12.360] complexity, (12.370] exceptions, [12.370] history, (12.370] orders, biodiversity certification, (12.1320] offsetting, other, (12.1340] case study, of biodiversity offsetting, (12.1350] overview, [12.10] planning overlays for, (12.940] Mid-Western Regional LEP 2012, (12.950] private land, conservation on, [12.10] protection of, responsibility for, [12.10] reforms, [14.650) SEPPs, use for conservation purposes, [12.860] coastal wetlands, [12.870] rainforests, littoral, (12.870] SEPP 19 - Bushland in Urban Areas, (12.890) SEPP 44 - Koala habitat, (12.900) species impact statements, (12.1080] threatened species - see Threatened species tree, preservation of - see Tree preservation wetlands, protection of coastal, [12.880] NSW Wetlands Policy (2010), (12.880) SEPPs, use for conservation purposes, (12.870] Building

certificate application for, [5.2600) effect, (5.2610]

demolition definition, [5.110] development, as, [5.110] erection definition, [5.110] development, as, (5.110] temporary structures, erection of minor structures and, (5.120] regulation of, [5.100] sustainability index - see Building Sustainability Index (BASIX) Building Sustainability Index (BASIX), (10.420]

greenhouse gas efficiency requirements, (10.420] Burra Charter

aim, (17.30] heritage conservation, and, (17.30] Venice Charter, adoption of principles and concepts by, [17.30] Bushland

definition, (8.230] natural areas, land categorised as, (8.230] urban areas, protection in, (12.890]

C Carbon Australian carbon credit units (ACCUs) issuance, (10.250] monitoring, (10.250] purchase of, by Commonwealth, (10.260] reporting, (10.250] National Carbon Offset Standard, (10.280] Carbon Neutral Program, [10.300] National Carbon Offset Scheme, [10.290] sequestration forests, plantations and, [13.850) international carbon accounting, [13.860] NSW Greenhouse Gas Abatement Scheme, and, (13.870) Catchment action plans

considerations, mandatory, (16.150] making, (16.160) preparation, (16.140] Catchment management

bioregional planning, [16.10] boards, (16.60]

cont catchment, meaning, [16.20] Catchment Management Authorities (CMAs) abolition, (16.90] creation, (16.100] establishment, recommendation for, (16.90] functions, (16.130] role, [16.120] structure, (16.110] Department of Environment, Climate Change and Water, responsibility of, (16.90] environmental planning instruments and, [16 .340] catchment level, use at, (16.350] SEPP (Sydney Drinking Water Catchment) 2011, (16.360] integrated catchment management, (16.30] objective of, [16.30] law relating to, (16.10] legislation affecting, (16.320] natural resource management, reform and restructuring, (16.390] Natural Resources Advisory Council disbandment, (16.90] establishment, recommendation for, (16.90] Natural Resources Commission establishment, recommendation for, [16.90], [16.170) natural resource management, auditing, [16.200] policy, advice and, [16.190) role, [16.180] reforms 2003 Blueprint for a Living Continent, publication of, [16.80] NSW Government reforms, [16.90] 2013-2015, in period, [16.10) targeted activities, power to exercise functions in relation to, (16.330) 2003, before, [16.40] Coastal Council, responsibility of, (16.70) committees, responsibility of other authorities, (16.70) early catchment management, [16.50] Healthy Rivers Commission, responsibility of, (16.70] Water Management Act 2000 administration of, (16.380]

Catchment management -

key water management legislation, as, [16.380] water management plans under, (16.380] Water NSW functions, listed, (16.330] objectives, (16.330] responsibility, [16.330] Sydney Catchment Authority, replacement by, of State Water and, (16.330] Water NSW Act 2014, establishment under, (16.330] Certifiers

accredited, [5 .600] enforcement of consent, notices issued by, [5 .2590] principal certifying authority, appointment of, (5.1860] Charter fishing

charter fishing boat, definition, (19.260] Commonwealth or state, management of charter fisheries, (19.250] NSW legislation, (19.260] Chemical control orders

activities, assessment, [9 .290] appeals against, (9.300], [9.2600] declared chemical wastes, (9.2570] assessment of activities involving, [9.2620] factors for assessment, (9.2630] procedure after assessment, [9.2640] five current, [9.2580) licensing, (9.2610) penalties, [9 .2660] purpose, (9.2590] reassessments, [9 .310] third-party appeals, (9.2650) what orders do, (9.2590] Chemicals contaminated sites - see Contaminated sites control orders appeals to Land and Environment Court against decision to make, (9.300) NSW, regulation of chemicals in, (9.290] reassessments, (9 .31 OJ industrial assessment of, [9.130) assessment scheme, [9.140] importers, registration of, [9.270] manufacturers, registration of, (9.270]

National Industrial Chemicals Notification and Assessment Scheme (NICNAS), (9.140] improvements to, [9.280] NSW, implementation in, [9-280] listed, (9.150] listed industrial assessment of, [9 .230] report, [9.250] what assessment must consider, [ 9.240] priority existing, [9.230] regulation of, [9.260] National Chemical Information Gateway, [9.120] new industrial, [9.160] assessment certificate applying for, [9.180] limited purpose of, [9.210] assessment of, (9 .170] assessment report, [9.190] object of assessment, [9.170] public report, (9.200] reassessment of, (9 .200] ozone-depleting substances - see Ozone-depleting substances radioactive substances - see Radioactive substances Clean energy building, energy efficient disclosure and, (10.390] carbon farming initiative, (10.140] Emissions Reduction Fund, (10.150] additionality requirements, (10.180) eligibility requirements, (10.160) regulatory, [10.200] excluded offsets projects, (10.240) fit and proper person test, [10.230) government program requirement, (10.210] methodology determinations, (10.170) newness requirement, (10.190) project proponent, (10.220] safeguard mechanism, (10.270] greenhouse and energy minimum standards, (10.380] NSW energy savings scheme, (10.400) solar feed-in-tariff, [10.410] renewable energy target, (10.320) exemptions, [10.370] generation certificates, large-scale, (10.340)

1049

1050

C Index

The Environmental Law Handbook Clean energy - cont large-scale, [10.330] small scale scheme, [10.350] technology certificates, small scale, (10.360] Climate change, [10.40]

coastal land, sea level rise and, [14.590] case study, in respect of climate change induced coastal erosion, [14.620] Coastal Risk Management Guide - Incorporating sea level rise benchmarks in coastal risk assessments, [14.610] NSW Coastal Planning Guideline: Adapting to Sea Level Rise, [14.600] decision-making, consideration of likely effects on development, [5.1370] litigation, (10.310] sea level rise, [14.590] Coastal Risk Management Guide - Incorporating sea level rise benchmarks in coastal risk assessments, [14.610] NSW Coastal Planning Guideline: Adapting to Sea Level Rise, [14.600] Coal

ownership of, [18.50] private owners, payment of compensation to, [18.50] Coal Compensation Board, closure of, [18.50] Coal mines

Independent Expert Scientific Comminee on Coal Seam Gas and Large Coal Mining Development establishment, [12.250] role, (12.250] Coal seam gas (CSG) forests, coal seam gas extraction and, [13 .200] meaning, [18.970] NSW gas plan, (18.980] Coastal and riverside land

accretion, erosion and, (14.840] common law doctrine, (14.850] modification, [ 14.860] beaches, coastal zone management plans for, (14.810] climate change, sea level rise and, (14.590] case study, in respect of climate change induced coastal erosion, (14.620] Coastal Risk Management Guide - lncorpora ting sea level

rise benchmarks in coastal risk assessments, [14.610] NSW Coastal Planning Guideline: Adapting to Sea Level Rise, [14.600] Coastal Design Guidelines 2003, [14.120] coastal, estuary and flood management plans, requirement to prepare, [14.130] Coastal Lands Protection Scheme, [14.540] aims, [14.540] coastal policy enforcement, [14.100] implementing, (14.100] Land and Environment Court and, [14.110] coastal zone boundaries, [14.40] land areas of, [14.40] maps showing, [14.70] oversight of, [14.150] waters in, [14.50] designated development, [14.570] development applications, in coastal zone, [14.560] additional requirements, [14.560] development pressures, [14.10] extractive operations - see Extractive operations floodplains - see Floodplains

Framework and Implementation Plan, national cooperative approach to integrated coastal zone management by, [14.550] high water mark, development below, (14.680] local councils, regulation by, (14.690] integrated development, (14.580] land protection works, coastal and riverside, (14.360] local environmental plans, in coastal zone, (14.170] principal local environmental plan, standard instrument for, (14.180] Management of Waters and Waterside Lands Regulations, [14. 700] maps showing coastal zone, (14.70] Natural Resource Commission see Natural Resource Commission

NSW Coastal Policy, (14.80] contents, (14.90] enforcement, (14.100] implementation, (14.100] NSW Comprehensive Coastal Assessment Toolkit, (14.140]

planning requirements, in coastal areas, [14.160] reclamation and dredging - see Reclamation and dredging

regional development, [14.630] rivers and lakes - see Rivers and lakes

SEPP 50 - Canal Estate Development - see State Environmental Planning

Policy No 50 - Canal Estate Development

SEPP 14 - Coastal Wetlands see State Environmental Planning Policy No 14 Coastal Wetlands

SEPP (Infrastructure) 2007, [14.350] aims, [14.350] SEPP 71 - Coastal Protection see State Environmental Planning Policy No 71 Coastal Protection

SEPP 26 - Literal Rainforests see State Environmental Planning Policy NO 26 Literal Rainforests

Sydney greater metropolitan region, [14.60] Sydney Harbour Catchment see Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Coastal protection

Coastal Protection Act 1979 development, definition, [14.720] enforcement, [14.820] objects, [14.710] concurrence role of Minister, (14.730] actions Minister can take, (14.750] considerations, relevant, (14.740] public authority direction by Minister, to other public authorities, [14.770] notification to Minister by, [14.760] development, powers, use by Minister to control, (14.780] emergency, long term coastal protection works and, (14.800] legislative framework key laws, (14.20] reforms, foreshadowed major, (14.30] restoration orders, by court, (14.830] section 149 planning certificates, [14.790]

Coastal protection -

cont

SEPP 71, [14.190] Commercial fisheries

gear, [19.360] government acquisition of fishing entitlements, [19 .500] licences, commercial fishing, [19.320] conditions, [19.330] management, [19.320] NSW, in, [19.20] Commonwealth

biodiversity, Commonwealth framework, [12.100] decision-making, [1.510] fiscal powers of, [1.570] heritage conservation Heritage List, [17.820] consequences, regulatory, of listing, [17.830] management plans for places, (17 .840] strategies for places, [17.840] role of, [17.710] Intergovernmental Agreement on the Environment, areas of Commonwealth responsibility, [1.550] law, and State, which law prevails, [1.520] case studies, [1.530] protected areas, [4.610] definition, [4.610] water management initiatives, [15.80] legislative framework, and, [15.120] Commonwealth Constitution,

(1.450] Aboriginal people, constitutional recognition, [20.30], [20.60] compensation under, (1.370] ICM Groundwater case, as case study, (1.390] Newcrest Mining case, as case study, (1.3 80] corporations, power in respect of, (1.490] external affairs power, (1.470] local government, constitutional recognition of, (8.380] powers of Commonwealth under, (1.10] Tasmanian Dam case, (1.480) taxation power, (1.500] trade and commerce power, [1.460] water, constitutional position, (15.70] Commonwealth environmental assessment and approval

action, government, (7.890] administrative guidelines, [7.510]

administrative measures, [7.950] enforceable undertakings, [7.960] HSI case, [7.520] V-line undertaking, [7.970] approvals enforcement issues, [7.800] environmental offsets, [7.740] matters that cannot be taken into account, [7.710] restrictions on, [7. 720] case study, [7.730] variation, suspension and revocation, [7.910] what Minister must take into account, [7.690] case study, [7.700] assessment process bilateral agreements, assessment under, [7.630] NSW bilateral assessment agreement, (7.640] environmental impact statement, assessment by, [7.610] information, reliability of, [7.580] levels of Commonwealth assessment, [7.570] preliminary documentation, assessment on, [7.590] preliminary information, [7.560] public environment report, assessment by, [7.600] public inquiry, assessment by, [7.620] civil penalty, proceedings for, [7.920] fixing penalties, [7.930] controlled actions, [7.20] cassowary habitat in North Queensland, case study on clearing, [7.30] Commonwealth land - see Commonwealth land

precautionary principle, (7.550] criminal proceedings, (7.940] emergency protection, (7.900] exemptions from controlled actions, [7.330] bilateral agreement, actions declared in, (7.340] declarations by minister, (7.350] marine bioregional planning, [7.360] forestry operations, (7.370] case study, [7.380] Great Barrier Reef Marine Park, [7.390] national interest, in, [7.410] national security or emergency, cases of, [7.420] s 160, under, [7.400]

injunctions - see Injunctions likely significant impact, determination, [7.460] referral misleading, case study, [7.490] supplying information in, [7.480] related actions, [7.530] Eastern Creek, developments at, [7.540] what impacts, [7.500] what is significant, [7.510] who can refer proposal, [7.470] marine areas - see Commonwealth marine areas

matters of national environmental significance, (7.10], [7.40] migratory species - see Migratory species

Minister, [7.10] national environmental significance, matters of, [7.10], [7.40] national heritage places, [7.110] listed, [7.120] what is protected, [7.130] nuclear actions - see Nuclear actions

particular manner, actions taken in, [7.440] precautionary principle, [7.550] prior authorisation, actions without, [7.4450] public participation, [7.750] comment on proposals, [7.770] injunctions, [7.780] referral process, inviting Minister to start, [7. 760] standing to sue, (7.790] Ramsar wetlands - see Ramsar wetlands

responsibility, maners of Commonwealth, [7.300] strategic assessment - see Strategic assessment

telecommunications facilities, [7.430] threatened species - see Threatened species

world heritage properties, [7.50] environmental impact assessment, [7.90) Hinchinbrook Channel, case study in respect of dredging, (7.70] management, (7.80] NSW, in, (7.100] what is protected, (7.60] Commonwealth government biodiversity - see Biodiversity

1051

1052

C Index

The Environmental Law Handbook

-----Commonwealth government - cont constitutional powers - see Commonwealth Constitution

environmental assessment and approval - see Commonwealth environmental assessment and approval

Intergovernmental Agreement on the Environment - see Intergovernmental Agreement on the Environment marine areas - see Commonwealth marine areas marine pollution - see Marine pollution pollution control - see Pollution control protected areas - see Commonwealth protected areas Commonwealth land

actions requiring approval, [7.310] Commonwealth agencies, actions by, [7.320] exemptions, (7.330] Commonwealth marine areas

actions requiring approval, [7,270] Great Barrier Reef Marine Park, [7,280] accident on, [7.290] Community land

classification as, (8.180] future, land acquired by council in, (8.360] leases of, (8 .260] film projects, leases allowing, (8.310] management plan authorisation, not requiring, (8.280] ministerial approval, (8 .320] natural areas, over, (8.290] plan of management, leases and licences authorised by, (8.270] management of, (8.210] objectives, core, for managing, [8.240] operational land, classification as, (8.330] public amenities, or services, land not suitable for, [8.330] plans of management, (8.220] leases and licences authorised by, (8.270] making, (8 .250] notice, (8 .300]

public participation in making, [8,300] sale or disposal, powers of council in respect of, [8,180] unlawful sale, [8.190] what is, [8.180] Community strategic plans, [8.100],

[8.110] Compensation

Commonwealth Constitution, under, [1.3 70] ICM Groundwater case, as case study, [1.390] Newcrest Mining case, as case study, [1.380] existing and proposed uses and, [1.360] forced purchase under NSW legislation, [1.410] management payments, [1.420] Mine Subsidence Compensation Act 1961, under, [18.710] mining, compensating landholders agreement, determination or assessment, [18,680] Mining Act, compensable loss under, (18.670] native title, compensation applications, [20.660] Lake Victoria, case study in respect of native title over, [20,670] Compliance certificates, [5.1870] Complying development, [5 .570]

accredited certifiers, [5.600] applications for, [5.610] certificates, (5 .630] conditions, power to impose on, (5.640] introduction of concept, [5 .590] principal certifying authority, [5.1860] standards requirements and, [5.620] when may be carried out, (5.590] Conditions

decision-making, duty to consider imposition of, [5.1200] Conservation

agreements[2.140] breach, remedy for, (4.300] Commonwealth Environment Minister, power to enter into, (2.140] Nature Conservation Trust, (2.150] NSW Environment Minister, power to enter into, (2.140]

biodiversity, Australia's Biodiversity Conservation Strategy, [12.110] heritage, conservation management plans, [17.580] SEPPs, use for conservation purposes, [12.860] coastal wetlands, [12.870] rainforests, littoral, [12.870] SEPP 19 - Bushland in Urban Areas, [12.890] SEPP 44 - Koala habitat, [12,900] Constitution - see Commonwealth Constitution Construction certificates

appeals in respect of, [5.2300] complying development, and certification of, [5 .1790] development consent consistency between, [5 .1800] part of development consent, as, [5.1810] Contaminated sites

"appropriate person", [9.2730] determination, [9.2730] Contaminated Land Management Act, application, (9.2670] costs, recovery of, [9.2760] declarations, [9 .2690] duty to notify, (9.2780] Environmental Trust Fund, [9.2900] investigation enforcement, and, [9.2810] remediation, and, (9.2700] no appropriate person, where, [9.2740] local councils liability, (9.2890] role of, (9.2870] SEPP 55, [9.2880] maintenance, ongoing, [9.2720] management orders, (9 .2 700] financial assurances for, [9.2770] notification to local authorities, (9.2790] "notional owners", (9.2740] private land, conservation on, [12.10] Protection of the Environment Operations Act, role of, (9.2860] register of contaminated sites, (9 .2800] reports case study in respect of contaminated site, (9.2850] purpose and extent, (9.2840] "significantly contaminated land risk", (9.2680] site auditors, accredited, [9.2820]

cont site audits, [9.2820] mandatory, [9.2830] State Environmental Planning Policy 55 - Remediation of land, [9.2880] voluntary management proposals, [9.2710]

Contaminated sites -

Convention on International Trade in Endangered Species (CITES)

Australia, ratification by, [12.60] obligations under, [12.70] Conveyancing Act 1919 (NSW)

protection of heritage by, [17,980] Costs

capping, [2.920] denied, case study where, [2.910] environmental litigation, financial barriers to, [2.900] Land and Environment Court Class 1 proceedings, [2.940] Class 2 proceedings, [2.940] Class 4 proceedings, [2.930] legal aid Commonwealth matters, in, [2.980] State matters, in, [2.970] security for costs, providing, [2.950] discretion, [2.950] Council policies

decision-making, consideration of codes and, [5.1320] Councils

amalgamation of Barnett Report, [8.370] environmental issues, key, [8.370] Local Government Reform Task Force, [8.370] contaminated land, and local councils liability, (9.2890] role of, (9.2870] SEPP 55, (9.2880] Crown land, management of, (4.20] orders, power to make, (8.80] Courts

environmental law, and role of, [l.590] Land and Environment Court see Land and Environment Court Covenants

easements, and, planning by private agreement, (2.20] modification, or removal courts, through, (2. 70]

planning legislation, under, [2.70] positive - see Positive covenants restrictive - see Restrictive covenants Criminal law

advance approvals for breach, [2.560] civil enforcement of, [2.690] discretionary remedy, [2. 700] enforcement, [2.650] environmental, [2.10] finding fault, [2.590] due diligence, offence, [2.640] legislative interpretation, [2.600] parliamentary silence, [2.610] reasonable mistake of fact, and, [2.630] strict liability, [2.620] individualised obligations, [2,580] directions, (2.580] licences, [2.5 80] obligations to act, (2.570] offences - see Criminal offences pollution control, and - see Pollution control

role of, (2.550] stereotype of role of, [2.550] Criminal offences

fines, [2.680] penalties, (2.660] civil, [2.710] maximum penalty units, [2.660] pollution control excluded offences, (9.1730] prosecute, powers to, (9 .1720] private prosecutions, by members of public, (9.2070] sentences, innovative, (2.670] Tier one offences - see Tier one offences

Tier three offences - see Tier three offences

Tier two offences - see Tier two offences Critical habitat

development application, requirement for impact statement, [5.720] threatened species, (12.270], (12.480] Director-General, consultation on LEPs with, [12.970] examples of, (12.490] offences in respect of, (12.500] Crown

building work by Crown, standards applying to, [5,900] development by, (5.880]

delays in respect of Crown development applications, [5.890] disputes in respect of Crown development applications, [5,890] Crown land

appropriate uses, assessment, [4.30] public lands, assessment of, [4.50] public participation, information and, [4.60] assessment, disposal and, [4.30] conservation agreement, remedy for breach, [4.300] councils, management of, [4.20] Crown Lands (Continued Tenures) Act 1989, tenure under, [11.210] dedication and reservation, [4.100] process of, [4.180] public purpose, reservation for, [4.100] revocation Gazette, by notice in, [4.210] parliament, role of, [4.200] veto, parliamentary, [4.190] Eastern and Central Divisions land - see Eastern and Central Divisions land

environmental law, and kinds of, (1.320] environmental planning controls, [4.470] forest agreements, regional, [4.240] freehold, converting leasehold to, (4.90] leasehold to freehold, conversion, (4.90] leaseholder's right of purchase, [11.180] leases, licences and, [11.170] Crown Lands Act, under, [11.230] lease conditions, changes to, (11.220] 100 year lease, (11.230] non-transferable licence, (11.230] resumption of land, (11.190] rivers and lakes, leases and licences to use, (14.1090] legislation White Paper, [4.10] management, (11.170] principles of, [4.40] management plans, (4.300], [4.490] catchment areas, [4.550] commercial function centre in Crown reserve, case study, (4.540] enforcing, (4.590]

1053

1054

D Index

The Environmental Law Handbook cont enforceability, [4.600] exhibiting, [4.530] flora reserves, working plans for, [4.570] making, [4.520] mandatory plans, (4.500] objectives of, (4.580] optional plans, [4.510] preparing, [4.530] State forests, for, [4.570] submerged lands, [4.550] water, draft plans for land under, [4.550] marine parks, development adjoining Office of Environment and Heritage land,, [4.480] native title rights, and, [4.20] Office of Environment and Heritage land, development adjoining, [4.480] permissive occupancies, (11.210] perpetual leases, [11.210] protected areas - see Protected

Crown land -

areas

reserved areas, development in, [4.320] Crown Lands Act, reserves under, [4.330] reserves Commonwealth, [4.620] management of, [8.200] public land, not, [8.200] sale conditions, (4.80], (11.240] not preferred or suitable uses, for, (4.70] State forest, conversion to national park, (4.230] term leases, (11.210] Western Division land - see Western Division land

what is, [4.20] wilderness areas, (4.260] Crown land, declaring as, [4.290] development in, [4.460] identifying area as, (4.270] private land, declaring as, (4.290] protected areas, declaring as, (4.280] revoking declarations of, (4.310] varying declarations of, [4.310] wilderness protection agreement, remedy for breach, (4.300]

D Dangerous goods

fuel storage tanks, underground, [9.530]

regulatory framework, (9.520] risk management, [9 .520] transport, [9 .540] Dedication or reservation

Crown lands, of, (4.100] parliament, role of, [4.200] process of, [4.180] protected areas - see Protected areas

public purpose, reservation for, [4.100] revocation Gazette, by notice in, [4.210] veto, parliamentary, [4.190] wilderness areas - see Wilderness areas Designated development, [5.330]

advertisement, by consent authority, [5.970] agriculture, [11.60] amendment of application, [5.980] case study, [5.990] appeal, review and, [5.1020] Planning Assessment Commission, review by, [5.1030] environmental impact statement, requirement for, [5.710] local mining as, [18.510] public exhibition, [5.1000] case study, [5.1010] restricted category of, [5.970] what development is, (5.340] Development

advertised, [5 .360] appeals, (5.1100] class 1 aquaculture development, as type of, [5.1080] definition, [5.1040] development control plan, development identified by, (5.1090] EPI, development identified by, [5.1090] nominated integrated development, as type of, (5.1060] notification, [5 .1100] special category of development, as, [5.1040] threatened species development, as type of, [5.1070] types of, [5.1050] advertising controlling, as development, [5.160] errors in, and mandatory notification requirements, [5.1170] animals, and plants, protecting native, as, [5.160] appeals

applicant, from refusal to grant development consent or unacceptable conditions, [5.2230] council's rights and obligations, [5.2260] other government bodies, right to be heard, [5.2270] time for, [5.2250] construction certificates, in respect of, [5.2300] objectors, by, [5.2280] occupation certificates, in respect of, [5 .2300] subdivision certificates, in respect of, [5 .2300] approvals how approvals work, [5.50] how many required, [5.30] process, integrating, [5.40] building demolition definition, [5.110] development, as, [5.110] erection definition, [5.110] development, as, [5.110] temporary structures, erection of minor structures and, [5.120] regulation of, [5.100] certification of complying, [5.1780] construction certifica res, [5.1790] consistency between development consent and, [5.1800] part of development consent, as, [5.1810] occupation certificates, (5.1820] exemptions, [5.1840] interim basis, issue on final basis or, [5.1820] preconditions for, [5.1830] subdivision certificates, (5.1850] registration of plan of subdivision, authorising, [5.1850 J certifiers accredited, [5 .600] principal certifying authority, appointment of, [5.1860] classifying, problems with, [5.180] dominant or independent purposes, ancillary use and, [5.230] independent purpose test, [5.230] minor uses, [5.230] dual-purpose developments, [5.220]

cont other legislation, references co, [5.200] policy questions, [5.240] terms, definitions and, [5.190] uses specifically prohibited, [5.210] compliance certificates, [5.1870] complying development, [5.570] applications for, [5 .610] certificates, [5.630] conditions, power to impose on, [5.640] introduction of concept, [5.590] standards requirements and, [5.620] when may be carried out, [5.590] concurrence, [5 .850] consent - see Development

Development -

consent

consent authority - see Consent authority

contributions - see Development contributions

controlling development, [5.160] Crown, by, [5.880] building work by Crown, standards applying to, [5.900] delays in respect of Crown development applications, [5.890] disputes in respect of Crown development applications, [5.890] decisions under EPA Act, making conditions, duty to consider imposition of, [5.1200] consent, threshold question as to whether proposed development permissible with, (5.1220] consistency of decision-making, case study on, [5.1260] council codes, consideration of policies and, [5.1320] development control plans, consideration of, [5.1310] development standards, [5.1230], [5.1280] discretion, limits on, [5.1220] draft EPis, consideration of, [5.1300] ecologically sustainable development, consideration of precautionary principle and, [5.1350] climate change, consideration of likely effects on development, [5.1370] inter-generational equity, [5.1360]

economic impacts, consideration of social impacts and, [5.1400] case study in respect of economic impacts, [5.1410] interests of property owners, case study in respect of, [5.1430] environmental impact, requirement for consent authority to have regard to, [5.1340] broad scope of, [5.1380] mitigation of harm, [5.1390] social impacts, economic impacts and, [5.1400] environmental planning instruments, consideration of relevant provisions, [5.1270] other matters, and, [5.1290] factor, weight given to each, [5.1190] objections made mobile telephone base station, case study on opposition to, [5.1470] mosque, case study on opposition to, [5.1470] power of decision-makers, [5.1210] public interest, requirement for consent authority to take account of, [5.1480] case study in respect of consideration of public interest, [5.1490] submissions made, requirement for consent authority to take account of, (5.1460] suitability of site for development, requirement for consent authority to consider, [5.1440] what must be considered, [5.1180] regulation, matters prescribed by, [5.1330] deemed refusal of consent, [5.2240] definition, [5.80] demolition of building, as development, [5.80], [5.110] designated development, (5 .330] advertisement, by consent authority, [5.970] amendment of application, [5.980] case study, [5.990] appeal, review and, [5.1020] environmental impact statement, requirement for, [5.710]

Planning Assessment Commission, review by, [5.1030] public exhibition, [5.1000] case study, [5.1010] restricted category of, [5.970] what development is, [5.340] development applications - see Development applications

development consent - see Development consent

development contributions, [5.1880] development control plans, notification requirements in, [5.1120] environment, protecting, utilising or improving, as development, [5.160] environmental law, development legislation as arm of, [1.120] fast-track legislation, [1.150] indenture, or franchise agreement legislation, [1.140] public development legislation, [1.130] EPA Act, definition, [5.10] EPA Regulation, definition, [5.10] EPis assessment of development applications, and consideration of relevant provisions, [5.1270] development excluded from, [5.260] erection of building, as development, [5.80] existing consents, [5 .540] existing uses - see Existing uses integrated development, [5.370] appeals, [5.400] assessment amendments to EPA, [5.40] consent authority, relationship between approval body and, [5.370] decision-making by approval body, [5.390] electing to have development dealt with as, (5.380] Land and Environment Court, power on appeal, (5.400] Land and Environment Court joinder of parties, [5.950] case study, [5.960] participation in, (5.950] planning principles, development of, [5.1250] land use tables overriding, [5.250] policy questions, [5.240] legal categories advertised development - see Advertised development

1055

1056

The Environmental Law Handbook cont complying development, [5.320] designated development, [5.330] exempt development, [5.290] integrated development - see

Development -

Integrated development

legal classification of, (5.270] general development, without consent, (5.300] only with consent, development permitted, [5.310] without consent, development permitted, [5.280] meaning, [5.80] Minister for Planning, definition, [5.10] new, case study on conflict between existing development and proposed, (5.1450] nonconforming uses, [5 .41 OJ Vaughan-Taylor case, amendments after, [5.510] planning agreements - see Planning agreements

planning principles Land and Environment Court, development of, (5.1250] published, (5.1250] project meaning, (5.20] who may carry out, [5.20] project assessment, [5 .20] public participation - see Public participation

purposes of, [5.170] residential flat buildings, s 342ZA Local Government Act and erection of, [5 .1130] notification, [5.1140] objections, [5.1150] readvertising, [5.1160] review council decisions, of, (5.2220] Planning Assessment Commission, by, (5.2290] Secretary of Planning Department, definition, [5.10] section 94 contributions - see Section 94 contributions

staged development applications, (5.780] consents, and, [5.750] concept proposals, staged development and approving, [5.770] effect of consent, [5.790] resort built over 15 years, case study in respect of, (5.760 l

development control plan, as alternative to preparation of, [5.810]

E Index modifying staged development consent, [5.800] total development consents, or partial, [5.820] standards, [5.20] erection definition, [5.110] development, as, [5.110] state significant, and infrastructure, (5.350] subdivision of land definition, [5.130] development, as, [5.80] regulation of, in NSW, [5.130] work, [5.140] Sydney, major development in city of, [5.840] temporary structures, erection of minor structures and, [5.120] trees or vegetation, protecting, as, [5.160] use of land development, as, [5.80] what is, (5.90] work carrying out of, [5.150] subdivision, [5.140] Development applications

amendments to, [5.670] appeals in respect of, (5.870] appropriate procedure, determining, [5.570] biodiversity consideration of impacts on biodiversity, (12.1070] coastal zone, in, (14.560] additional requirements, (14.560] complying development - see Complying development

critical habitat impact statement, requirement for, [5.720] environmental impact of, [5.690] environmental effects, statement of, (5.700] giving consideration, proper, to, [5.1240] greenhouse gas emission, BASIX scheme and reductions in, [5.730] incomplete, (5.660] information required, [5.680] making, [5.650] more than one type of development, applications for, [5.580] public participation, [5.910] council practice, [5.930] Minister, public hearings requested by, [5.920] procedural fairness, case study in respect of, (5 .940] statutory requirement, where no, [5.930] rejection, grounds for, [5.660]

residential apartments, relating to, [5.740] staged, and consents, [5.750] concept proposals, staged development and approving, [5.770] resort built over 15 years, case study in respect of, (5.760] threatened species impact statement, requirement for, (5.720] time limits for decision on, (5.860] water use, BASIX scheme and reductions in, [5.730] who makes decision on, [5.830] who may make, [5.650] Development consent, [2.330]

agriculture, requirement for, (11.20] amendment, application to correct error, misdescription or miscalculation, [5.2330] authorities challenging own, [5.2540] biodiversity, impact seven-part test of significance, [12.1090] process of applying, [12.1100]

species impact statements, [12.1080] alternatives to, (12.1140] consultation, concurrence and, [12.1130] contents, what statement must include, [12.1110] public exhibition, [12.1120] complex regulatory system, at core of, [5.50] conditions, imposition of, [5.1560] ancillary matters, as to, [5.1580] climate change related, case study on time limited consent, [5.1610] covenants, conditions requiring, [5.1610] deeds, contained in common law agreements and, [5.1660] easements, conditions requiring, (5.1610] enforcement, conditions requiring other means of, [5.1630] fairly relating to development, conditions reasonably and, [5.1690] finality, case study on significant alteration and lack of certainty or, [5.1750]

Development consent,

[2.330] - cont imposing, case studies on, [5.1700] invalid conditions, status of, [5.1730] modifying, (5.2380] outcomes, conditions specifying, [5.1590] planning purpose, when is a condition for, [5.1680] prescribed conditions, (5.1620] reviewable conditions, [5.1610] severance of invalid conditions, [5.1750], [5.1760], [5.1770] standards, conditions specifying, [5.1590] types of conditions, [5.1570] uncertain, unenforceable or, (5.1720] unreasonable conditions, [5.1710] validity of conditions, [5.1670] covenants as condition of, (2.130] decision-making, threshold question as to whether proposed development permissible with, [5.1220] deemed refusal of consent, [5.2240] deferred commencement consents, [5.1530] case studies, [5.1540] determination of development application by, [5.1500] enforcement of, [5.2500] civil enforcement, [5.2510] orders, by issue of, [5.2550] council orders, (5.2560] failure to comply, [5.2570] invalid orders, (5.2580] environmental planning instruments (EPis) and, [5.60] extension of time, [5.2450] failure to obtain, [5.2520] criminal proceedings, and, [5.2530] interpretation, by reference to other documents, [5.1520] land use tables, and, [5.70] lapsing of, [5.2440] commencement, and preconditions to, [5.2480] physical commencement, what constitutes, [5.2470] preventing, [5.2460] work commenced in breach of consent, where, [5.2490] legal power to grant, (5.1240] modification of, [5.2320], [5.2350] alternative to, [5.2410]

appeals, [5.2400] determination of application for, [5.2360] development already carried out, where, [5.2420] development standards, and applicable, (5.2370] minimal environmental impact, where proposed modification of, [5.2340] public participation, (5.2390] nature of, [5.1510] offences, [5 .2500] partial consents, [5.1550] rainwater tanks, need for, [15.1050] revocation of draft EPI, consents incompatible with, (5.2430] security, subject to provision of, [5.1600] validity, challenging, [5.2620] conditional validity, [5 .2660] Land and Environment Court, discretion to make orders remedying breach, [5.2670] postponing orders, or limiting, [5.2680] manifest jurisdictional error, for, [5.2640] time limits on legal proceedings, [5.2630] essential requirements, (5.2650]

when required, (5.60] Development contributions affordable housing contributions accountability, [5.2210] definition, [5.2200] nature of s 94F, [5.2200] scope of s 94F, [5.2200] contributions plans accountability and requirement for, [5.1990] preparing, [5.2010] development applications and, [5.1880] section 94 contributions - see Section 94 contributions Development control plans (DCP) environmental decision-making, and consideration of, [5.1310] notification requirements in, (5.1120] Development standards compliance with, [2.340] decision-making, and consideration of, [5.1230], [5.1280] numerical terms, framed in, [2.340]

planning device, as statutory, [2.340) Standard Instrument LEP, [2.340] Discretion

duty, and, (2.540] environmental decision-making and limits on, [5.1220] environmental law, and exercise of, [l.300]

E Easements

Conveyancing Act, under ss 88B and 88K, [2.110] covenants, and, planning by private agreement, [2.20] modification, or removal courts, through, [2. 70] planning legislation, under, [2.70] Eastern and Central Divisions land

lease, (11.200] private interests in Crown land in, [11.200] Ecological communities aquatic ecosystems - see Aquatic ecosystems

definition, [12.150] examples of, [12.400] recovery plans, [12.160] threatened species, and, [12.150] Ecologically sustainable development (ESD)

concept of, (1.190] decision-making, [1.210] environmental, and consideration of precautionary principle and, [5.1350] climate change, consideration of likely effects on development, [5.1370] inter-generational equity, [5.1360]

fisheries management, [19.50] local government and, (8.30] decision-making, cases highlighting requirement to consider principals of ESD in, [8.40] precautionary principle - see Precautionary principle state of the environment reports, [1.240] Economic instruments behavioural change, and, [2.720] command and control distinguished, [2. 720] environmental issues, use to address, [2. 720]

1057

1058

The Environmental Law Handbook Economic instruments - cont EPA, power to develop and implement, (9.1610] financial assurances, (9.1680] green offsets, (9 .1640] Hunter River, protecting, (9.1630] Hunter Valley Salinity Trading Scheme, (2. 720] load-based licensing scheme, (9.1650] discharge fees, (9.1650] monitoring, environmental, (9.1670] polluter pays principle, (2.720] risk-based licensing, [9.1660] tradeable emission schemes, (9.1620] cradeable permit system, (2.720] Ecosystem

services, biodiversity and, [12.20] water as essential part of, [15.10] Electricity

coal mines - see Coal mines greenhouse gas emissions - see Greenhouse gas emissions Emergency orders

Heritage Ace, protection under, (17.110] power to make, [17.110] Energy

clean - see Clean energy planning, energy projects and, (10.430] wind farms, case study, (10.440] Enforcement of consents

accredited certifiers, notices issued, [5.2590] civil, [5 .2510] failure to obtain development consent, [5.2520] council orders, [5.2560] failure to comply, (5.2570] invalid, [5.2580] criminal proceedings, [5.2530] offences, [5.2500] orders, [5.2550] Environment

definitions, (1.180] ecologically sustainable development - see Ecologically sustainable development Environmental Watering Plan, purpose, [15.120] local government, role in environmental planning and management, [8.10] mining, and protection of, (18.750]

E Index decision-making, environmental considerations in, [18.760] directions mining plant, to remove, 18.830] operations, suspending, [18.810]

power to give, [18.800] rehabilitation conditions, environmental protection conditions and, (18.770] Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) biodiversity, [14.660]

flying foxes, case study of international obligations and, [12.240] main law protecting biodiversity, as, [12.120] protection of biodiversity by, (12.130] water resources, and developments with impact on, [15.1340] Environment Protection Authority (EPA)

administration and enforcement - see Administration and enforcement administrator, appointment, [9.1700] chemical control orders - see Chemical control orders contaminated sites - see Contaminated sites economic instruments - see Economic instruments enforcement, brief history, [9.1830)-(9.1860] environment protection licences - see Environment protection licences integrated pollution management - see Integrated pollution management investigation, (9.1740] self-incrimination, [9 .1790] self-monitoring, [9 .1800] objective, (1.200] pollution control licensing, regulation of pollution by, [9.30] objectives, [9.560] pollution, regulating, (9.580] public authorities, power to direct, [9.1690] prosecution councils, by local, [9.1880] discretion, (9 .1820] guidelines, (9 .1870] offences excluded, (9.1730] powers, [9.1720]

tipoffs in relation to offences, [9.1810] Environment protection licences, (9.1710] conditions, (9.740]

pollution reduction programs, (9.750] cost to industry, (9.720] ecologically sustainable development and, [9.730] EPA discretion, (9. 790] granting, practical considerations in, (9.710] licensing, (9.1710] planning legislation, integration with, (9.700] review of, [9.770] scheduled activities, [9 .690] scheduled development work, (9.680] single integrated licence, (9.670] suspension, revocation and surrender, [9.760] water pollution, (9.780] when required, (9.670] Environment protection notices

critical infrastructure projects, notices and, (9.920] types, [9.910] Environmental assessment and approval activities under Part 5, (6.80] activity, definition, [6.90]

private activities, requiring approval, [6.110] public activities, approval, [6.100] agriculture - see Agriculture application Part 4 EPA, [6.30] Part 5 EPA, [6.30] activities under Part 5, [6.80] biodiversity - see Biodiversity coastal and riverside land - see Coastal and riverside land Commonwealth - see Commonwealth environmental assessment and approval concurrence, [6.340] decision-making - see Environmental decision-making determining authorities, [6.310] proponents, as, (6.230] duty to consider environmental factors, (6.160] environmental impact, (6.170] considering, case studies, [6.180] enforcement of provisions, [6.360] environmental impact statement

Environmental assessment and approval - cont - see Environmental impact statement (EIS) exceptions, circumstances where Part 5 does not apply, [6.40] biodiversity certification, (6.60] exempt development, [6.50] extractive operations - see Extractive operations fisheries, environmental assessment of significant, (19.570] Minister, power to make determinations, (19.590] purposes, ocher, of, [19.610] what must be assessed, (19.580] mining, EPA Act Part 5 exploration and, (18.530] mining and, [18.520] Minister, definition, [6.10] monitoring, (6.350] proponents, [6.20] where determining authority is, (6.320] who is, (6.150] Secretary, definition, [6.10] species impact statement - see Species impact statement (SIS) threatened species - see Threatened species Environmental audits

accreditation of auditors, (9.1590] supply of false information co, [9.1600] definition, [9.1560] mandatory, [9.1580] offences, (9 .1600] voluntary, [9.1570] Environmental decision-making

conditions, duty to consider imposition of, [5.1200] consent, threshold question as co whether proposed development permissible with, [5.1220] consistency of decision-making, case study on, [5.1260] council codes, consideration of policies and, [5.1320] decision-maker, [6.310] determining authorities, (6.120] additional determining authorities as to activities carried out by, (6.140] public bodies, case study as to activities carried out by, (6.130] development control plans, consideration of, [5.1310]

development standards, [5.1230], (5.1280] discretion, limits on, (5.1220] draft EPis, consideration of, [5.1300] ecologically sustainable development, consideration of precautionary principle and, [5.1350] climate change, consideration of like! y effects on development, [5.1370] inter-generational equity, (5.1360] economic impacts, consideration of social impacts and, [5.1400] case study in respect of economic impacts, [5.1410] interests of property owners, case study in respect of, [5.1430] environmental impact, requirement for consent authority to have regard co, (5.1340] broad scope of, [5.1380] mitigation ofharm, [5.1390] social impacts, economic impacts and, [5.1400] environmental planning instruments, consideration of relevant provisions, [5.1270] other matters, and, [5.1290] factor, weight given co each, [5.1190] objections made mobile telephone base station, case study on opposition co, [5.1470] mosque, case study on opposition to, [5.1470] power of decision-makers, [5.1210] public interest, requirement for consent authority to take account of, [5.1480] case study in respect of consideration of public interest, [5.1490] submissions made, requirement for consent authority co cake account of, [5.1460] suitability of site for development, requirement for consent authority to consider, [5.1440] what must be considered, [5.1180] regulation, matters prescribed by, [5.1330] Environmental Defender's Office purpose, (2.990]

services, (2.990] Environmental impact statement (EIS) challenging, cases studies, [6.280]

Commonwealth - see Commonwealth environmental assessment and approval content, (6.270] what must be covered, (6.260] designated development, requirement for, [5.710] development application, environmental impact of, [5.690], [6.240] environmental effects, statement of, [5.700] need for, [6.190] Planning Assessment Commission, review by, (6.300] preparation, [6.250] public exhibition, (6.290] significant effect determination, [6.200] likelihood of significant effect, (6.210] timing, [6.230] initial assessment, [6.230] what must be covered, [6.260] Environmental law

Aboriginal land land claims in respect of, (1.330] native or customary title, common law right co, [1.330] approvals, and, [1.260] building blocks making up, [2.10] chemicals - see Chemicals Commonwealth decision-making, [1.51 OJ fiscal powers of, (1.570] Intergovernmental Agreement on the Environment, areas of Commonwealth responsibility, (1.550] law, and State, which law prevails, [1.520] case studies, [1.530] Constitution, Commonwealth, (1.450] compensation under, [1.370] ICM Groundwater case, as case study, [1.390] Newcrest Mining case, as case study, [1.380] corporations, power in respect of, (1.490] external affairs power, (1.470] powers of Commonwealth under, (1.10] Tasmanian Dam case, (1.480] taxation power, (1.500]

1059

1060

F Index

The Environmental Law Handbook Environmental law - cont trade and commerce power, [1.460] compensation Commonwealth Constitution, under, [1.370] ICM Groundwater case, as case study, [1.390] Newcrest Mining case, as case study, [1.380] existing and proposed uses and, (1.360] forced purchase under NSW legislation, [1.410] management payments, [1.420] conservation agreements - see Conservation agreements

courts, role of, (1.590 criminal offences, and - see Criminal law

Crown land, kinds of, [1.320] development and protection, as focus of, [1.160] development legislation, as arm of, [1.120] fast-track legislation, [1. 150] indenture, or franchise agreement legislation, [1.140] public development legislation, [1.130] directions, and power to give, [1.290] discretion, and exercise of, [1.300] ecologically sustainable development concept of, [1.190] decision-making, taking account of ESD in, (1.210] state of the environment reports, and, (1.240] economy, integrating with environment, (1.200] environment, definitions, [1.180] environmental impact legislation, as arm of, (1.50] environmental planning and protection legislation, [1.30] existing use of land, and, [1.280] compensation, existing and proposed uses and, [1.360] exploitative component, [1.20] hazardous substances legislation, as arm of, (1.80] how environmental law works, [1.250] approvals, (1.260] integrated resource management legislation, as arm of, [1.90] inter-generational equity, and integrating economy with environment, [1.200]

Intergovernmental Agreement on the Environment, [1.540] Commonwealth responsibility, areas of, [1.550] National Environment Protection Council, establishment to implement provisions of, (1.560] land tenure, regulation of land use and, [1.31 OJ land-use planning legislation, as arm of, [1.40] natural and developed, and dispute about land use, [1.170] local government, role of, [1.580] natural resources definition, [1.180] legislation for conservation of cultural resources and, [1.100] Nature Conservation Trust - see Nature Conservation Trust

notices, and power to give, [1.290] orders, and power to make, [1.290] paradox, as, [1.20] plans, and, [1.270] pollution legislation, as arm of, [1.60] precautionary principle application, [1.220] case studies, [1.230] integrating economy with environment, and, [1.200] role of, [1.220] private property, and, [1.350] privately owned land, and, (1.340] protective component, (1.20] resource allocation legislation, as arm of, (1.110] sources of international law, [1.440] NSW legislation as, (1.10], [1.430] state environmental planning policies - see State environmental planning policies (SEPPS)

State legislation Commonwealth legislation and finding nexus between, [1.400] which law prevails, [1.520], [1.530] forced purchase under, (1.410] source of environmental law, as, [1.10], [1.430] waste disposal legislation, as arm of, [1.70] what is, [1.20]

Environmental planning instruments (EPls)

Extractive operations

acid sulfate soils, [14.1290] environmental impact statements, [14.1310] local environmental plans, [14.1300] risk maps, [14.1330] Crown land, extraction of sand or gravel on, [14.1280] dredging high water mark, below mean, [14.1380] permits for reclamation and, [14.1350] enforcement, [14.1370] when not required, [14.1360] planning controls, (14.1390] pollution licences for, [14.1270] reclamation and, [14.1340] work, definition, [14.1350] gravel, sand and, [14.1250] Crown land, extraction of sand or gravel on, [14.1280] environmental assessment, [14.1260] industries, extractive approvals, necessary, (18.1340] consent authority, [18.1300] definition, [18.80] designated development, consent authority where, [18.1310] local development, consent authority where, [18.1310] Mining SEPP, [18 .1280] permissibility, [18.1280] quarries as, [18.80] REPs, repeal of power to make, (18 .1290] State significant development, as, [18.1300] Western Division, (18 .1330] pollution licences for dredging, [14.1270] Sydney Harbour, [14.1320]

decision-making, consideration of relevant provisions, [5.1270] other matters, and, (5.1290] development assessment of development applications, and consideration of relevant provisions, [5.1270] development excluded from, [5.260] heritage conservation, and complying and exempt development, [17.650] development control plans (DCPs), [17.660] development near heritage items, [17.640] incentives, conservation, [17.630] Standard Instrument LEP, [17.620] local environmental plan - see Local environmental plan (LEP)

planning agreements - see Planning agreements

regional environmental plans see Regional environmental plans (REPs)

state environmental planning policies - see State environmental planning policies (SEPP) Existing use

abandonment of, (5.450] presumption of, (5.450] area of, [5.500] continuing use, determining area of, [5.560] changing, [5.460] another use, changing existing use to, [5.480] consent, seeking, (5.490] continuance of, [5.420] definition, [5 .420] description of, [5.430] development, and, [5.420] development consent, existing use rights and, [5.530] new development consent where needed, [5.550] environmental law, and existing use of land, [1.280] compensation, and existing and proposed uses, [1.360] how much of building or land is used, [5 .520] lawful purpose, use for, [5.440] modifying, [5.470] uses socially incompatible with, [5.1420]

F Farmers

obligations of, [11.1 OJ Federal Court

native title National Native Title Tribunal, and, [20.310] what is determined by, [20.480] Fisheries

administration, [19.190] aquaculture - see Aquaculture aquatic ecosystems - see Aquatic ecosystems

audits, compliance, [19.640] businesses, fishing, [19.550] charter fishing charter fishing boat, definition, (19.260] Commonwealth or state, management of charter fisheries, [19.250] NSW legislation, [19.260] close fishing, power to, [19.130] case study, of fishing closures, [19.600] commercial, in NSW, [19.20] gear, [19.360] government acquisition of fishing entitlements, [19.500] licences, commercial fishing, [19.320] conditions, [19.330] management, [19.320] ecologically sustainable development, [19.50] enforcement, [19.620] civil proceedings, [19.660] compliance audits, [19.640] penalties, [19.650] environmental assessment, of significant fisheries, [19.570] Minister, power to make determinations, [19.590] purposes, other, of, [19.610] what must be assessed, [19.580] fish definition, [19.10] receivers, registration as, [19.530] records, [19.540] Fisheries Management Act 1994 application, (19.10] ecologically sustainable development, as objective, [19.50] objectives, [19.40] importance of, [19.70] legal challenge, as basis for, and judicial review, [19.80] precautionary principle, [19.60] priorities, recognition of, [19.70] fishing boat licences, [19.340] conditions, [19.350] Indigenous fishing rights, [19.270] case study, [19.280] cultural fishing, [19.300] native title appeal to higher court on grounds of, [19.270] Native Title Act, application, [19.290] traditional fishing, or commercial, [19.310]

Land and Environment Court, civil proceedings in, [19.660] law area to which laws apply, [19.90] development of, in NSW, [19.30] meaning, [19.10] management general, [19.120] strategies, [19.560] marine parks, fishing in, (19.880] Minister for Primary Industries Minister, definition, [19.10] NSWwaters definition, [19.100] fisheries beyond, [19.110] offences possessing fish, [19.160] take, and possession, [19.140] taking fish, [19.150] trafficking in fish, [19.170] officers, fisheries obstructing, case study in respect of, [19.630] powers, [19.620] penalties forfeiture of boat or motor vehicle, power to order, [19.650] penalty notice, power to serve, [19.650] repeat offenders, for, [19.650] quotas, [19.520] recreational fishing fee exemptions, [19.220] mandatory, introduction of, [19.210] havens, (19.230] licensing, [19.210] NSW law, or Commonwealth, [19.200] sector, [19.20] restricted fisheries, (19.510] right, public, to fish, [19.240] share management fisheries appeals, [19.440] benefits of, [19.390] catch history, determining, [19.480] charges, [19.410] entitlement, exceeding, [19.460] finalising share management, [19.450] introduction of, [19.370] shares, allocation of, [19.430] sustainable practices, encouraging, [19.400] transition, to new system, [19.470] types of, [19.380] who can fish, [19.420]

1061

1062

The Environmental Law Handbook Floodplains

approvals for works, [14.1000] floodplain management plans, (14.1020] integrated development, [14.1030] Ministerial Corporation, powers, [14.1010] civil liability of local councils in respect of flooding, [14.950] case study, and defences in respect of negligent advice, [14.960] designated development, (14.930] development on, (14.870] flood mitigation by public authorities, [14.940] Flood Risk Management Guide, [14.910] sea level rise benchmarks in flood risk assessments, incorporating, [14.910] land liable to flooding, (14.920] local government responsibility, (14.890] management plans, floodplain, [14.1020] NSW Floodplain Development Manual, [14.900] planning proposals affecting flood prone land, restrictions on, [14.880] rural areas, works on floodplains in, [14.970] Part 8 approvals, of controlled works, (14.1000] Water Act 1912, approvals for works on floodplains under, (14.990] Water Management Act 2000 reforms, (14.980] Flora reserves

forests, dedication as, (13.210] prospecting in state, [18.300] reserved lands, as exempted areas, [18.31 OJ Forests

access to information, (13.650] agreements, forest, (13.310] content, minimum requirements for, (13.340] public participation in, (13.430] regional, [4.240] varying, [13.420] where NSW forest agreements apply, [13.320] assessments, forest, and forest agreements, (13 .100] carbon sequestration, forests, plantations and, (13.850] international carbon accounting, (13.860] certification, [13.1060]

H Index

chemicals, use in, [13.830] clearing licences, [13.500] licensing considerations, [13.520] restrictions on, [13.540] coal seam gas extraction and, [13.200] comprehensive regional assessment, and (CAR) reserve system, [13.290] assessment, controversy over forestry, [13.300] conflict, forestry, and civil enforcement, (13.270] contractor licences, (13.530] restrictions on, [13.540] covenants, forestry, [13.1030] criminal proceedings, for offences under Forestry Act, (13.590] Crown timber lands, and timber removal on, [13.180] ecologically sustainable forest management, [13.50] electricity generation, from native forest feedstock, [13 .1070] Commonwealth legislation, [13.1080] flora reserves, dedication as, (13.210] forest management zoning, (13.260] Forest Practices Code, (13.550] Forestry Corporation of NSW establishment, [13.140] forestry rights and, [13.1030] functions, [13.170] governance, (13.150] objectives, [13.160] review of decisions by, [13.640] fossicking, in State forests, [13.610] harvest plans, [13.560] hunting, in State forests, [13.620] Illegal Logging Prohibition Act 2012 (Cth), aims, [13.120] integrated forestry operations approvals, (13.350] agreements, forest, (13.310] where NSW forest agreements apply, [13.320] court action, limits on, [13.450] environmental impact assessments, modification of requirements, [13.360] licensing under, (13.370] other legislation, exemptions from, [13.390] public participation not required, (13.440] regulation where, [13.310] varying, (13.420] land, forest dedication, [13.190]

management, [13.190] reservation, [13.190] laws applying to management, use and conservation, [13.10] Commonwealth law, [13.10] international law, Commonwealth responsibilities under, [13.110] NSW law, [13.130] public land forestry law, [13.140] streamlining forestry law, (13.280] leasehold, management of, [13.920] logging private land, on, (13.910] restriction on supply, compensation for, [13.410] threatened species, ecological communities and, (13.380] management plans, [13.250] mining and, [13.200] State forests, mining in, (13.600] Minister, review of decisions by, (13.640] native forestry, private, [13.890] compliance, [13.980] local environmental plans, (13.990] Native Vegetation Act 2003, (13.930] approvals, required, [13.940] exempted activities, [13.950] other approvals, exemption from, [13.970] water pollution control, [13.1000] where occurs, [13.900] non-forestry activities, approval of, [13.580] NSW Greenhouse Gas Abatement Scheme, and, (13.870] penalties, for offences under Forestry Act, (13.590] plantation forestry, (13.660] authorisation appeal from refusal to grant, [13.710] obtaining, [13.700] pre-existing plantations, [13.720] carbon sequestration rights, (13.880] clearing for plantations, [13.760] authorisation, obtaining, [13.770] wildlife values, protection after authorisation, [13.780]

Forests - cont complying plantations, [13.740] enforcement, [13.840] exempt farm forestry, when, [13.730], [13.800] non-complying plantations, [13.750] other approvals, exemptions from, [13.790] Plantations and Reafforestation Code, [13.690] public land, plantations on, [13.810] types of plantation, [13.680] water pollution and, [13.820] what land is covered, (13.670] private Commonwealth law, private forestry operations and, (13.1010] management of, [13.920] Private Native Forestry Code of Practice, [13.960] private land, forestry right son, [13.1020] profit a prendre, purchase tenure leases and, (13.1050] prospecting in State forests, [18.300] reserved lands, as exempted areas, [18.310] protesting, in State forests, [13.630] public, timber harvesting in, (13.480] forest products, harvesting timber and, [13.490] small quantity authorisations, [13.520] regional forest agreements Commonwealth responsibilities, and State, [13.40] Environment Protection and Biodiversity Conservation Act case study, of limits to EPBC exemption, [13.70] forestry operations, exclusion for RFA, [13.80] regions not subject to an RFA, application in, (13.90] regions subject to an RFA, application in, [13.60] forest policy, at centre of, [13.30] resource security, (13.400] revocation, of State forest, [13.240] Riverina Red Gums, protected national park estate and, (13.330]

royalties, payment of resource acquisition fees, [13.570] special management zones, [13.230] timber reserves, [13.220] water pollution and, [13.460] case study, of prosecution over, [13.470]

fit and proper person test, [10.230] government program requirement, [10.210] methodology determinations, [10.170] newness requirement, [10.190] project proponent, [10.220] safeguard mechanism, [10.270] energy minimum standards and [10.380] ' ' federal regulation of, [10.40] international context, [10.20] Kyoto Protocol, ratification, [10.40] National Greenhouse and Energy Reporting - see National

Fossicking, [18.230]

State forests, in, [13.610] Fracking

hydraulic fracturing, regulation of, (18.1120]

G Gateway assessment process

mining, and, [18.330] Mining SEPP, under, (18.470] Genetically modified organisms (GMOs)

contamination, liability for, [11.1150] case study, (11.1160] dealings definition, (11.1090] licence, not requiring, [11.1120] definition, [11.1090] licences to deal with, [11.111 OJ moratorium in NSW, [11.1140] Office of the Gene Technology Regulator (OGTR) functions, [11.1100] public participation, [11.11 30] risks identified in respect of, [11.1090] Grants

NSW heritage, (17.510] State Heritage Grants, [17.510] Great Barrier Reef Marine Park

approval, where not required, [7.390] Commonwealth marine area, (7.280] accident on, (7.290] Greenhouse gas emissions

Australia's record, [10.30] development application, BASIX scheme and reductions in, (5.730] Emissions Reduction Fund, (10.150] additionality requirements, [10.180] eligibility requirements, (10.160] regulatory, [10.200] excluded offsets projects, (10.240]

Greenhouse and Energy Reporting

H Hazardous substances

legislation, as arm of environmental law, [1.80] Heritage conservation

agreements beaches, injunctions to restrain, [17.480] land, running with, (17.470] Minister, power to enter into, [17.450] termination, [17.460] variation, (17.460] approvals Heritage Act, under, [17.310] appeals against, (17.360] application, making, [17.320] consideration of application, [17.330] determination of application, [17.340] modifying, [17.350] other legislation, under, (17.370] appeals, relating to prescribed applications, (17.380] Australian Heritage Council establishment, (17. 720] functions, (17.720] Burra Charter, [17.30] aim, [17.30] Venice Charter, adoption of principles and concepts by, (17.30] Commonwealth Heritage List, (17.820] consequences, regulatory, of listing, [17.830] management plans for places, [17.840]

1063

1064

K Index

The Environmental Law Handbook Heritage conservation - cont strategies for places, (17.840]

role of, [17.710] conservation management plans, [17.580] Conveyancing Act 1919 (NSW), protection of heritage by, [17.980] emergency orders Heritage Act, protection under, [17.110] power to make, [17.110] environmental heritage, definition, [17.70] environmental planning instruments complying and exempt development, [17.650] development control plans (DCPs), [17.660] development near heritage items, [17.640] incentives, conservation, [17.630] Standard Instrument LEP, [17.620] financial assistance, [17.490] grants, NSW heritage, [17.510] State Heritage Grants, [17.510] Heritage Act 1977 (NSW) approvals under, [17.310] appeals against, [17.360] app lication, making, (17.320]

consideration of application, [17.330] determination of app lication, [17.340] modifyi ng, [17.350] definitions, [17.80] objects, [17. 70] protection under, [17.110] Heritage and Conservation Register, maintenance of, [17.240] heritage certificates, [17.260) Heritage Conservation Fund, provision of financial assistance out of, [17.500) Heritage Council of NSW establishment, [17.90) functions, [17.100] maintenance, power to issue orders for, [17.570] role, [17.90] Heritage Incentive Fund, provision of financial assistance out of, [17.490] heritage items, maintenance of, [17.550) failure to maintain, offence of, [17.560] orders, power of Heritage Council to issue, [17.570) standards, minimum, [17.550]

Historic Houses Trust duties, [17.700] establishment, [17. 700] identification of heritage items and places, [17.10] Indigenous people, and cultural heritage, [17.10] interim heritage orders, [17.120] appeal from, right of, [17.120] date of effect, [17.140] duration, [17.140] effect, [17.270] notice of, [17.130] offences in respect of, (17.280] exceptions, [17 .290] places subject to, [17.160] power to make, [17.120] revocation, [17.150] international framework, [17.20] cultural and natural heritage, international conventions relating to, (17.20] World Heritage Convention, administration by UNESCO of, [17.20] Land and Environment Court, civil proceedings in, [17.410] land tax, conservation and, [17.530] law heritage, in NSW, overview of, [17.60] other legislation, protecting heritage, [17.960] legal requirements, in respect of protected items, [17.390] Local Government Act 1993 (NSW), protection of heritage by, [17.970] moveable cultural heritage Class A objects, examples of, [17.890] Class B objects, examples of, [17.900] export of items, [17.880) fossils, exporting, [17 .930] import, of objects protected by foreign countries, [17.910) protection of, [17.870] case studies, [17.920] National Estate, Register of establishment, [17.850) exist, ceasing to, (17.850] national heritage list consequences, regu latory, of listing on, [17.800] emergency listing on, [17.790]

inclusion, of places with national heritage va lue, [17.760], [17.770]

protection of national heritage, [17.760] removal of places from, [17.780]

management plans, for places, [17.810] National Parks and Wildlife Act 1974 (NSW), protection of heritage by, [17.990] National Trust establishment, [17.690] powers, [17.690] register, maintenance by, [17.690] statutory body corporate, as, [17.690] NSW Government role of, [17. 70] State government agencies, heritage managed by, [17.590], [17.600] offences, prosecutions of, [17.420] orders prohibiting development or use, power to make, [17.430] overseas places of historic significance to Australia, maintenance of list of, [17.950] planning instruments, heritage provisions and, [17.670] protection case study, of protection of natural heritage, [17.300] decision to accord, [17.10] rates, taxes and, [17.520] conservation, taxation relief for, [17.540] land tax, [17.530] records, State protection of, [17.680] public access to, [17.680] registers, State, [17.240] inspection, public, of, [17.250] State government agencies, heritage managed by, [17.590) relics, protection of, [17.440] remedies, penalties and, [17.400] shipwrecks, conservation of historic, [17.940] State Heritage Inventory, [17.240] State Heritage Register deciding on listing, procedure for, [17.200] effect of listing, [17.270] inclusion of places on, or items, [17.180) items on, [17.230] judicial review, of decision by Minister, [17.220] listing on, [17.170] offences in respect of places or items on, [17.280)

Heritage conservation - cont exceptions, [17.290]

places on, [17.230] recommending listing, procedure for, [17.190] removal of listing from, [17.210] stop work orders, power to make, [17.400] Sydney Harbour Federation Trust establishment, [17.860] objects, [17.690] World Heritage case study, in respect of world heritage properties and EPBCAct, [17.740] management of properties, [1 7.750] protection of, [17. 730] World Heritage Convention adoption, [17.40] list, properties on danger of removal from, [17.50] objective, [17.40] UNESCO, administration by, [17.20] High water mark

development below, [14.680] local councils, regulation by, [14.690) Historic Houses Trust

duties, [17. 700] establishment, [17. 700]

Indigenous fishing rights, [19.270]

case study, [19.280] cultural fishing, [19.300] native title appeal to higher court on grounds of, [19.270] Native Title Act, application, [19.290) traditional fishing, or commercial, [19.310) Information, right to

EPA, public registers, [9.2040) National Pollutant Inventory, [9.2050] state of the environment reports, [9.2030) Injunctions

awards of costs, [7.870) case studies, [7.820)-(7.850] grant, refusal, [7.780] interim, [7.810] security for costs, [7.880) undertaking as to damages, [7.860) Integrated development, [5.370]

appeals, [5.400)

assessment amendments to EPA, [5.40] consent authority, relationship between approval body and, [5 .370] decision-making by approval body, (5.390] electing to have development dealt with as, [5 .3 80] Land and Environment Court, power on appeal, [5.400] Integrated forestry operations approval, [13.350]

habitat-specific, [12.80] heritage, international framework, [17.20] cultural and natural heritage, international conventions relating to, [17.20] World Heritage Convention, administration by UNESCO of, [17.20] species-specific, [12.80] Irrigation

agriculture, irrigated, [15.40] historical notes, [15.50] corporations, [15.850] land and water management plan areas, [15.870] development consent, exemption from,

agreements, forest, [13.310] where NSW forest agreements apply, [13.320] court action, limits on, [13.450] environmental impact assessments, modification of requirements, [13.360] licensing under, [13.370] other legislation, exemptions from, [13.390] public participation not required, [13.440] regulation where, [13.310] varying, [13.420]

[15.880]

where development consent required, [15.890]

operating licences, (15.860] private irrigation districts, [15.900] boards of management, [15.910] formation, [15.900] water allocation, rates and, [15.930) works, taking over or constructing, [15 .920]

Inter-generational equity

environment, and integrating economy with, [1.200] Intergovernmental Agreement on the Environment (IGAE),

[1.540] responsibility, areas of, [1.550] National Environment Protection Council, establishment to implement provisions of, [1.560]

J Judicial review

application, [2.360] Commonwealth cases, in, [2.850] exceeded or misused power, [2.400] Parramatta Park case, [2.430] grounds for, [2.370) legitimate expectation, [2.390] manifest unreasonableness, (2.450], [2.460] obstacles to, [2.490] privative clauses, [2.510] validating legislation, [2.520], [2.530) procedural fairness opportunity to be heard, where no, [2.380] relevant considerations, [2.410) legislative prioritisation, [2.470] satisfied of particular matters, [2.480) standing to sue - see Standing to sue

Interim heritage orders, [17.120]

appeal from, right of, [17.120] date of effect, [17.140] duration, [17.140] effect, [17.270] exceptions, [17.290] notice of, [17.130] offences in respect of, [17.280] places subject to, [17.160] power to make, [17.120] revocation, [17.150] International treaties

biodiversity, and, [12.30) enforcement in Australia, [12.90] habitat-specific treaties, [12.80] species-specific treaties, [12.80) Convention on International Trade in Endangered Treaties (CITES) Australia, ratification by, [12.60) obligations under, [12.70)

K Karst conservation areas

protected areas, [4.130)

1065

1066

The Environmental Law Handbook Koalas

potential koala habitat, definition, [12.900] SEPP 44, protection of koala habitat by, [12.900]

L Land

Aboriginal - see Aboriginal land acquisition of, under approval conditions, [18.690] how much must be paid, [18.700] biodiversity, and certification of land, (12.1290] agreements, biodiversity certification, (12.1330] applications for, [12.1310] assessment methodology, [12.1300] orders, biodiversity certification, [12.1320] coastal - see Coastal and riverside land

pollution blanket prohibition against, [9.870] licensing scheduled activities, (9.880] private, conservation on, [12.10) protection works, coastal and riverside, (14.360] riverside - see Coastal and riverside land rural - see Rural land

tax conservation and, (17.530] heritage conservation, (17.530] tenure, regulation of land use and, (1.310] Land and Environment Court

access co courts, [2. 790] chemical control orders, appeals against decision to make, (9.300] coastal policy, enforcement of, [14.110] conciliation, (2. 760] costs Class 1 proceedings, [2.940] Class 2 proceedings, [2.940] Class 4 proceedings, (2.930] development joinder of parties, (5.950] case study, (5.960] establishment, [2.730] fisheries, ci vii proceedings in, [19.660] hearings, [2.750] heritage, civil proceedings in, [17.410] integrated development, power on appeal, [5.400] jurisdiction, [2. 740]

L Index

mining, jurisdiction of, [18.930] neutral evaluation, [2. 770] planning agreements, role of, [5.2190] planning principles, development of, [5.1250] public participation, (5.950] questions of law, appeals on, [2.780] restoration orders, power to make, [14.830] s 94 condition, power to disallow or amend, (5.2000] sentencing options, [9 .1890] standing to sue civil proceedings, [2.800] commercial interest, [2.820] cultural interest, [2.830] "intellectual and emotional concern", [2.840] special interest, [2. 81 OJ undertakings co pay damages see Undertakings to pay damages

water, prosecution of offences in respect of, [15 .960] Land clearing

cultivation, and, [11.350] native vegetation, from rural land, (11.350] Western Division, [11.370] Land tenure

Aboriginal land - see Aboriginal land

Crown land - see Crown land freehold, leasehold and, (11.160] leasehold, freehold and, (11.160] privately owned land - see Private land

types of, (11.160] Land use planning

agriculture - see Agriculture circulars, publication of departmental, (3.340] council codes, policies and, (3.700] critical infrastructure projects see Critical infrastructure projects

Crown, infrastructure development, and use of existing buildings of, (3.270] decision-making - see Decision-making

definitions, [3.10) development advertised, [3.160] assessment of, [3.70] categories of, [3.160] classification of, [3.60] complying, [3.160] consent, needing, [3.60] consent, not needing, [3.60] designated, [3 .160]

exempt, [3.160] prohibited, [3.60] development consent - see Development consent

development control plans, [3.670] council policies, and, [3.670] legal status of, [3 .680] making, [3.690] development standards, (3.170] examples of, [3.170] prohibition, or, [3.180] case study, [3.190] environment, definition, [3.40] Environmental Planning and Assessment Act 1979 Act, definition, [3.10] objects, [3.40] environmental planning instruments, [3.40] copies, finding, [3.750] development, and determination of categories of, [3.160] existing uses, land use planning in context of, [3.210] heritage conservation, LEPs and, [3.250] inconsistency between instruments, (3.580] land use plans, [3.40] trends, recent, in regulation of, (3.80) local environmental plans (LEPs), [3.40] amendment, (3.360] challenges to, (3 .630] content of, guidance on, [3.310] directions under s 117(2), restrictions placed on councils by, (3.320] case study, on consistency withs 117 directions, [3.330] environmental planning instruments, as type of, [3.40] environmental studies, and making of, [3.290] heritage conservation and, [3.250] how made, [3.280] participation, public, [3-300] privative clauses and making of an LEP, case study, (3.620] stages, (3-280] maps, [3 .90] matters covered by, [3.240] public notice, case study on misleading, [3.640] standard, [3.100] mandatory clauses, (3.100] optional clauses, [3.100] text, written, [3.90]

Land use planning - cont zoning, as key function of, (3.110] local government - see Local government

major projects - see Part 3A project, approval

Minister for Planning Minister, definitions, [3.10] planning controls, identifying relevant, [3.710] definition, [3.20] existing uses, in context of range of, (3.210] forms of, [3.30] instruments, and development control, [3.50] project control, combining planning with, [3.370] property law, and, [3.200] planning certificates, [3.710] councils, liability of, [3.740] further information, obtaining, [3.730] what certificate will not show, [3.720] public purposes, acquisition of land reserved for, [3.230] restrictive covenants, [3.220] registration on title to land, effect, [3.220] State environmental planning policies (SEPPs), [3.40], (3.380] challenges co, [3.650] state or regional environmental planning significance, case study on, (3.660] environmental planning instruments, as type of, [3.40] environmentally sensitive areas, use to establish policy frameworks for, [3.480] examples of different types of, [3.380] flexibility in development assessment process, increasing, [3.390] housing, co pursue policies related co urban consolidation and affordable, [3.510] Green Square Affordable Housing Program, (3.540] SEPP (Affordable Rental Housing) 2009, [3.520] SEPP (Housing for Seniors or People with a Disability) 2004, (3.550] SEPP 70-Affordable Housing (Revised Schemes), (3.530)

SEPP 32- Urban Consolidation (Redevelopment of Urban Land), [3.560] SEPP (Urban Renewal) 2010, (3.570 l how made, [3.590] consultation requirements in making of, case study, (3.600] industries, regulating and restricting particular activities and, [3.490] Mining SEPP, development assessment under, [3.500] quality of development, introducing mechanisms co improve quality of, [3.430) SEPP (Building Sustainability Index: Ba six) 2004, (3.440] SEPP 65, design quality of residential apartment development, [3.430] SEPP (Exempt and Complying Development Codes) 2088, [3.420] SEPP 4, SEPP 60 and, [3.410] SEPP (Infrastructure) 2007, (3.470] SEPP (Major Development) 2005, (3.460] SEPP 1, (3.400] SEPP (State and Regional Development) 2011, [3.460) sites, regulating specific projects or, (3.450] urban consolidation, to pursue policies related to affordable housing and, (3.510] strategic plans, [3.350] meaning, [3.20] supplementary planning documents, legislative provision for, [3.40] town planning, profession of, [3.20] trees, standard LEP and, (3.260] urban planning, profession of, [3.20] validity of plans, challenging, (3.610] vegetation, standard LEP and protection of, [3.260] what controls apply, [3.760] zoning definitions, [3.130] case law, in, (3.140] LEPS, as key function of, [3.110] objectives, case study on consistency with, [3.120] standard LEP, in, [3.110] uses, definitions of, (3.130]

case study, in respect of defining uses, (3.150] Lease

community land, of, [8.260] film projects, leases allowing, [8.310] management plan authorisation, not requiring, [8.280] ministerial approval, [8.320] natural areas, over, [8.290] plan of management, leases and licences authorised by, [8.270] Crown land, leases and licences, [11.170] Crown Lands Act, under, [11.230] lease conditions, changes co, [11.220] 100 year lease, [11.230] non-transferable licence, [11.230] resumption of land, [11.190] rivers and lakes, leases and licences to use, [14.1090] protected areas, leases, and licences, (4.380] adaptive reuse, grant for, [4.430] Legal aid

Commonwealth matters, (2.980] Environmental Defenders Office, (2.990] State matters, [2.970] Licences

commercial fishing, [19.320] conditions, (19.330] contractor licences, (13.530] restrictions on, (13.540] exploration, (18.130] application for grant, (18.140] conditions attaching co, (18.160] exclusive rights conferred by, (18.140] ICAC report, case study in respect of, (18.150] fishing boat, (19.340] conditions, (19.350] forestry, clearing licences, (13.500] licensing considerations, (13.520] restrictions on, [13.540] irrigation corporations, operating licences, [15.860] mining, environment protection licences, (18.120] opal prospecting, [18.130] special conditions, power to gazette, [18.210] recreational fishing, [19.210] water, [15.510] renewals, [15.540]

1067

1068

The Environmental Law Handbook Licences - cont transferring from, (15.530] transitional arrangements, (15.520] water access - see Access licences Likely significant impact - see Commonwealth environmental assessment Local Aboriginal Land Councils (LALC) claiming land, (20.100] test, application of, (20.110] dealings in land preconditions for, (20.130] restrictions on, [20.140] disposal of land by, (20.120] functions, other, of, [20.200] leases between Environment Minister and, [20. 780] membership, (20.80] mining on land council land, (20.170] rates, exemption of land held by, (20.160] system, establishment of, (20.80] Local court water, prosecution of offences in respect of, (15 .960] Local Environmental Plans (LEPPs) biodiversity, and use for conservation purposes, [12.860], (12.910] case study, (12.910] Director-General, and consultation with, (12.970] standard LEP critical habitat of endangered species, and development on, [12.930] environmental zones and, [12.930] biodiversity, protection by coastal zone, in, (14.170] principal local environmental plan, standard instrument for, [14.180] conservation purposes, use for, (12.860], (12.910] case study, (12.910] critical habitat, and, [12.930] Director-General, consultation on LEPs with, (12.970] development consent - see Development consent development standard - see Development standard private native forestry - see Private native forestry zoning - see Zoning

M Index

Local government amalgamation of councils Barnett Report, (8.370] environmental issues, key, [8.370] Local Government Reform Task Force, (8.370] approvals policies, local, (8.70] bushland definition, (8.230] natural areas, land categorised as, (8.230] community land classification as, (8.180] future, land acquired by council in, (8.360] leases of, (8.260] film projects, leases allowing, [8.310] management plan authorisation, not requiring, [8.280] ministeria l approva l, [8.320 l natural areas, over, [8.290] plan of management, leases and licences authorised by, [8.270] management of, (8.210] objectives, core, for managing, (8.240] operational land, classification as, (8.330] public amenities, or services, land not suitable for, [8.330] plans of management, [8.220] leases and licences authorised by, [8.270] making, [8.250] notice, [8.300] public participation in making, [8.300] sale or disposal, powers of council in respect of, (8.180] unlawful sale, [8.190] what is, (8.180] community strategic plans, (8.100], [8.110] constitutional recognition of, (8.380] Crown land reserves management of, (8 .200] public land, not, (8.200] delivery programs, [8.100], [8.130] ecologically sustainable development, and, [8.30] decision-making, cases highlighting requirement to consider principals of ESD in, [8.40] environmental law, role of, (1.580] environmental planning, role in management and, [8.10]

heritage, protection by Local Government Act 1993 (NSW), (17.970] land, ownership of, [8.10] local environmental plans - see Local environmental plans Local Government Act 1993 Act, definition, (8.10] purpose, (8.20] natural areas, land categorised as, (8.230] leases and licences over, (8 .290] offence provisions, (8.100] operational land classification as, (8.180] management, development or disposal, powers of council in respect of, (8.180] operational plans, (8.100], (8.140] orders, power of councils to make, (8.80] power, and responsibility, (8.20] public land classifying, reclassifying and, (8.330] pub lic amenities, or services, land not suitable for, [8.340] definition, [8.180] Local Government Act, initial classification under, [8.350] public purpose, land subject to trust for, (8 .350] public reserves, categorisation of, (8.350] regional perspectives and, [8.170] regulation by councils, (8.60] resourcing strategies, (8.100], (8.120] services, delivery of facilities and, [8.50] state of the environment reports, [8.150] threatened species, responsibility of councils in respect of, (8.160] Local Government Act 1993 Act, definition, [8 .10] purpose, [8.20] Local Land Services (LLS) agriculture, and establishment, [11.290] functions, [11.290] local land services, definition, (11.290] catchment management Board of Chairs, [16.250] State strategic plan produced by, [16.260] boards, (16.240] catchment management

Local Land Services (LLS)- cont authorities responsibilities, transfer to, [16.10], (16.90] commencement of operation, (16.210] local strategic plans, (16.290] content, [16.300] non-compliance, sanctions for, [16.320 l plan-making process, [16.310] preparation, [1 6.300] regions, (16.230] State strategic plan produced by, (16.260] content, [16.270] non-compliance, sanctions for, [16.320] plan-making process, [16.280] preparatio n, [1 6.270] structure organisational, (16.220] pest control, responsibility for, [11.520] ·

M Management plans lands

see Crown

Maps coastal zone, showing, (14.70] Marine parks aquaculture in, [19.760] Commonwealth marine area, (7.270] Great Barrier Reef Marine Park, (7.280] accide nt on, [7.290] declaration of, (19.860] fishing in, [19.880] management, [19.870] prospecting in aquatic reserves and, [18 .290] Marine pollution clean up action, powers of Minister, (9.2270] Commonwealth, role of, (9.2320] compensation, right to, [9.2260] defences, (9 .2180] emergency and other plans, duty to prepare, [9.2250] harmful substances in package form, pollution by, (9.2200] incidents, duty to report pollution, (9.2240] marine environment protection notices, (9.2280] Marine Pollution Act Protection of the Environment Operations Act, relationship with, (9.2160]

Roads and Maritime Services, administration by, (9.2150] noxious liquid substances, [9.2170] NSW pollution legislation, application, [9.2140] offences, (9.2170] defences, (9 .2180] penalties for, (9 .2300] proceedings for, (9.2300] oil, pollution by, (9 .2170] Oiled Wildlife Care Network, [9.2310] preventative action, powers of Minister, (9.2270] retention of residues, (9.2190] sea dumping - see Sea dumping ships detaining, (9.2290] garbage pollution, (9.2220] harmful substances in package form, pollution by, (9.2200] Prevention of Pollution form Ships Act, (9.2320] sewage pollution, [9.2210] transfer operation, liability during, (9.2230] Marine species dolphins, [12.320] marine mammals, protection of, (12.850] listed, [12.31 OJ wildlife conservation plans, (12.340] mammals, marine, (12.850] offences, (12.310] porpoises, (12.320] marine mammals, protection of, (12.850] protection of, (12.310] mammals, of marine, (12.850] whales, [12.320] Japanese whaling case, as case study, [12.330] marine mammals, protection of, (12.850] Middle line rule rivers, in respect of, (14.1060] exception to application, (14.1070] statutory restrictions on, (14.1080] Migratory species approval, actions requiring, (12.300] list of, (7.240], (12.300] protection of, [7.240], (12.290] wildlife conservation plans, (12.340] Mine subsidence compensation, under Mine Subsidence Compensation Act 1961, (18 .710]

districts, [18. 720] approvals, (18.740] non-mining development in, (18.730] Minerals -

see Mining

Mining acquisition of land, under approval conditions, (18.690] how much must be paid, (18.700] agricultural land objection by landholders on grounds of, (18.370] strategic, (18.330] approvals, [5.30] Mining Act, under, (18.130] aquifer interference activities, (18.120] assessment leases, [18.130] grant, renewal and, (18.170] purpose, (18.170] audits, of mining and prospecting operations, (18. 780] cancellation of titles, (18.890], (18.900] appeal, (18.920] compensation, (18 .920] objection, (18.920] coal ownership of, [18.50] private owners, payment of compensation to, [18.50] Coal Compensation Board, closure of, [18.50] coal seam gas (CSG) meaning, (18.970] NSW gas plan, (18.980] conditions of approval, acquisition of land under, (18.690] conservation agreements, effect of voluntary, [18.320] Department of Industry, Skills and Regional Development Department, meaning, [18.20] derelict mine sites, management and rehabilitation of, [18.820] designated development, local mining as, [18.510] directions mining plant, to remove, (18.830] operations, suspending, [18 .810] power to give, [18.800] economy, contribution to, (18. 10] enforcement, offences and, (18.840] environment protection licences, (18.120] environment, protection of, (18.750]

1069

N Index

1070

The Environmental Law Handbook Mining - cont decision-making, environmental considerations in, [18.760) directions mining plant, to remove, [18.830] operations, suspending, l 18.810 J power to give, [18.800] rehabilitation conditions, environmental protection conditions and, [18.770) EPA Act Part 5 exploration and, [18.530) mining and, (18.520) exploration licences, [18.130] application for grant, (18 .140) conditions attaching to, [18.160) exclusive rights conferred by, [18.140) ICAC report, case study in respect of, [18.150) extractive industries approvals, necessary, (18.1340) consent authority, (18.1300) definition, [18.80) designated development, consent authority where, [18.1310) local development, consent authority where, [18.1310] Mining SEPP, (18.1280) permissibility, [18.1280) quarries as, (18.80) REPs, repeal of power to make, (18.1290) State significant development, as, [18.1300) Western Division, [18 .1330) flora reserves, prospecting in state, [18.300) reserved lands, as exempted areas, [18.310) forests mining and, [13.200) State forests, mining in, [13.600 l prospecting in state, [18.300) reserved lands, as exempted areas, [18.310l fossicking, [18.230) £racking, regulation of hydraulic fracturing, [18.1120) gateway assessment process, [18.330) Mining SEPP, under, [18.470) government, prospecting on behalf of, [18 .260) improvements, significant, on land where situated, [18.350)

land access arbitration framework, improving, [18.400) Land and Environment Court, jurisdiction of, [18.930) landholders, compensating agreement, determination or assessment, (18.680) Mining Act, compensable loss under, (18.670) legal challenges, to grant, renewal or transfer of authority, [18.610) legislation, other, applicable to exploration or mining, [18.120) local development, mining as, [18.500] marine parks, prospecting in aqua tic reserves and, (18.290) mme definition, (18.70) mine subsidence compensation, under Mine Subsidence Compensation Act 1961, [18. 710) districts, [18. 720] approvals, [18.740] non-mining development in, l18.730 l minerals claims, mineral, [18.130], (18.200) agency involvement in decision-making, [18.660 l consultation, public, over grant of, [18.590] definition, [18.30] legislation, key, [18 .90) offshore exploration and mining, [18.1170) ownership of, [18.40] privately owned mining of, [18.30] special provisions for, [18.220] theft of, [18.870) Mining Act 1992 (NSW) application, [18.20) approvals under, [18.130) changes to, [18.100) recent changes, [18.110] 2010, since, [18.110] judicial processes under, [18.930) key legislation, as, [18.90] Mining (Amendment) Act 2008 aims, [18.100] assent, [18.100] object, primary, (18.130) mining leases, [18.130) advertising tenders, or proposals to grant, [18.550)

consolidation of, [18.650) landowner consent not required, [18.600) notification of landholders, (18.560) planning approval not requiring, agency involvement in decision-making, l 18.640 J requiring, agency involvement in decision-making, [18.630] rights of leaseholders, [18.180) mining purposes, definition, [18.190) mining reserves, (18.410) exploration or mining titles, where land subject to other, [18.420) Mining SEPP aims, (18.440) development, permissibility of, [18.450) extractive industries, permissibility, [18.1280) functions, [18.440) gateway assessment process under, [18.470] matters for consideration under, (18.460) petroleum exploration and production, and, (18.1100] Minister, who is, [18.20) national parks, protected areas where restricted, [18.240) mining interests, previously existing, [18.250) offences, enforcement and, [18.840), [18.880) executive liability offences, [18,860) principal offences, and penalties, [18.850) offshore exploration and mining, [18.20), [18.1150] Australia, coordinating offshore mining in, [18.1220) management arrangements, joint, [18.1230] coastal waters definition, [18.1160] mining reserve, [18.1210] conditions of title, [18.1200] marine parks, activities in aquatic reserves and, [18.1190) minerals, definition, [18.1170) petroleum, [18.1240) conditions of title, [18.1250] management arrangements, joint, [18.1260]

Mining - cont titles, forms of, [18.1180) Offshore Minerals Act 1999 key legislation, as, [18.90) onshore petroleum, exploration and production of, [18,950] opal prospecting licences, [18,130) special conditions, power to gazette, (18.210) penalty notices, [18.940) petroleum assessment leases, (18.1000) challenging grant of titles environmental protection, [18.1030] time limits, [18.1030] cultivated land, landholder consent on, [18.1080) exempted areas, (18.1060) exploration licence, [18.1000) exploration regulation, improved management of, (18.1140] meaning, [18.960) Mining SEPP and, [18.1100] moratorium areas, (18.1070) offshore exploration and production, [18.1240) conditions of title, [18.1250] management arrangements, joint, [18.1260] Part 5, petroleum development and, [18.1130) planning legislation, and, [18.1090) production leases, [18.1010) prospecting titles, [18.1000) applying for, [18.1020] issuing, [18.1020] protected areas, [18.1050) special prospecting authorities, [18.1000) State significant development, petroleum production and, [18.1110) titles, [18.990) Petroleum (Offshore) Act 1982 key legislation, as, [18.90) Petroleum (Onshore) Act 1991 key legislation, as, [18.90) planning approvals mining leases requiring, agency involvement in decision-making, [18.630) objections, where development consent not required, [18.580) public submissions, [18.570) sequence of mining approvals and, [18.480) planning legislation, application, [18.430] private residences, near, [18.340)

prospecting definition, [18.60) prospecting titles, [18.380) access arrangements for, [18.390) decision-making, agency involvement in, (18.620] public participation, landholder participation and, (18.540) protected areas, in, [4.350), [18,240) reserved lands, as exempted areas, [18.310) reserves, in nature, [18.240) residences, near occupied houses, [18.340] road reserves, as exem peed areas, [18.310) royalty revenues, in NSW, [18. 10) security deposits, [18. 790) shale gas meaning, (18.970) NSW gas plan, [18.980) State conservation areas management of, [18.280) reserved lands, as exempted areas, (18.310] State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007, (11.150) State significant development, [18.490) suspension of operations, [18.890), (18.910) appeal, (18.920] compensation, [18.920) objection, [18.920) titles, [18.130) travelling stock routes, Crown land as exempted areas, [18.310) underground mining, [18.360) uranium mining, and nuclear facilities, [18.1270) Warden 's courts, abolition of, [18.930) where restricted, [18.240) wilderness areas, management of, [18.270) Moveable cultural heritage Class A objects, examples of, [17.890) Class B objects, examples of, [17.900) export of items, [17.880) fossils, exporting, [17.930) import, of objects protected by foreign countries, [17.910) protection of, [17.870) case studies, [17.920) Murray-Darling Basin Basin Plan, [15.120)

government agreements and policies, [15.310) Murrumbidgee Irrigation Area, [15.50]

N National Estate, Register of establishment, [17.850) exist, ceasing to, [17.850) National Greenhouse and Energy Reporting compliance, enforcement and, (10.130) information, publication of, (10.120] legislative framework, [10.50] National Greenhouse and Energy Reporting Act coverage, [10.60] scope, (10.60) registration, [10.70) reporting, [10.80] thresholds, (10.70) transfer certificates, [10.100) transferring obligations, (10.90] section 22X agreements, [10.110] National heritage list consequences, regulatory, of listing on, (17.800) emergency listing on, (17. 790) inclusion, of places with national heritage value, [17.760), [17.770) protection of national heritage, [17. 760) removal of places from, [17.780) management plans, for places, [17.810) National Industrial Chemicals Notification and Assessment Scheme, [9.140) improvements to, [9.280) NSW, implementation in, [9.280) National parks Aboriginal cultural heritage, and co-management of, [20.760) mining, protected areas where restricted, [18 .240) mining interests, previously existing, [18.250) National Parks and Wildlife Act 1974 (NSW), protection of heritage by, [17.990] National Parks and Wildlife Service wildlife refuges, agreements with private landholders to create, [2.100)

1071

1072

0 Index

The Environmental Law Handbook National Reserve System (NRS)

biodiversity, and, [12.140] National Strategy for the Conservation of Australia 's Biological Diversity, [12.110] National Strategy for the Conservation of Australia's Biological Diversity, [12.110] National Trust

establishment, [17.690] powers, (17.690] register, maintenance by, [17.690] statutory body corporate, as, [17.690] National Water Initiative, (15.90]

best use of water, ensuring, (15.110] Native animals

critical habitat Director-General, consultation on LEPs with, [12.970] licences, fauna, (12.750] harm, to, [12.770] keep, to, (12.770] kill, to, (12.770], (12.780] National Parks and Wildlife Service officers, directions from, [12.760] protection, responsibility for, [12.710] offences against, (12. 730] defences, (12. 740] pets, keeping native animals as, (12.750] protection, [12. 710] protected fauna, definition, [12.720] rescue, (12. 750] SEPP 19 - Bushland in Urban Areas, (12.890] SEPP 44 - Koala habitat, [12.900] stop work orders, [12.790] Native plants

critical habitat Director-General, consultation on LEPs with, (12.970] licences to pick, (12.840] offences, [12.820] defences, (12.830] protection, [12.800] which native plants are protected, [12.810] SEPP 19 - Bushland in Urban Areas, (12.890] Native title

activity on land subject to claim, negotiating, (20.450] claim, five elements of, (20.510] applicant, in proceedings for, (20.530]

what rights and interests are claimed, [20.570] where is area being claimed, (20.550] who may claim, (20.520] native title claim group, [20.540] why is claim made, [20.580] compensation applications, [20.660] Lake Victoria, case study in respect of native title over, (20.670] complexity, [20.710] Crown lands, and native title rights, [4.20] definition, [20.4 70] delay in resolution of claims, [20.710] extinguishment, (20.330] compensation, [20.260] establishment of, [20.150] seeking order in respect of, [20.650] traditional laws and customs, and, (20.330] Federal Court National Native Title Tribunal, and, (20.310] what is determined by, (20.480] fishing rights, Indigenous appeal to higher court on grounds of, (19.270] Native Title Act, application, [19.290] funding for proceedings, (20.690] future acts after 1998, rights relating to proposed, (20.420] comment, right to, (20.440] negotiation about, [20.300] right to negotiate, [20-430] validating, (20.630] indigenous inhabitants' rights, recognition of, [20.240] Indigenous Land Use Agreements, (20.390] intermediate period acts, validity of, [20.380] land rights, and, [20.50] Mabo (No 2), decision in, (20.230] responses to, (20.260] mediation, (20.600] National Native Title Tribunal, (20.310] Federal Court, and, [20.370] Native Title Act, (20.270] claimant applications under, (20.460] 1998 amendments to, [20.340] United Nations, criticism from, [20.410] native title claim group, (20.540] decision-making by, [20.590]

Native Title (New South Wales) Act 1994, [20.280] native title representative bodies (NTRBs), [20.690] functions, other, of, [20.700] funding for proceedings, and, [20.690] non-claimant applications, [20.620] example of, [20.640] offshore waters, claims over, (20.560] recognition, background to, [20.220] registration test, [20.490] joinder, [20.500] notification, [20.500] revocation of determination, [20.680] statistics, in respect of claims, [20.610] Ten Point Plan, (20.360] types of application in respect of, [20.320] variation of determination, (20.680] water, native title rights in relation to, (15 .240] who may claim, [20.290] Wik decision, [20.350) Native vegetation

agricultural management activities, clearing for routine, (12.1430] case study, (12.1440] catchment management, and Native Vegetation Act 2003, regulation of clearing of native vegetation by, [16.370] Native Vegetation Reform Implementation Group, appointment of, (16.90] clearing approval, requirement for, (12.1380] burning, by, [12.1400] history, [12.1360] poisoning, by, [12.1400] ringbarking, by, [12.1400] definition, (12.1390] development consent, and, (12.1470] emergencies, clearing for, (12.1460] legislative framework, Native Vegetation Act 2003, (12.1370] Native Vegetation Act 2003 application, (12.1410] approvals under, (12.1470] biobanking, interaction with, [12.1510] breach of, case study, [12.1540] commencement, (12.1370]

cont enforcement, [12.1530] exemptions, [12.1410] permitted clearing, [12.1450] private land - see Private land private native forestry, and - see Private native forestry property vegetation plans (PVPs), (12.1480] assessment methodology, [12.1490] clearing, prohibited, [12.1500] native forestry, private, [12.1560] registers, public, (12.1520] regrowth, clearing of groundcover and, (12.1420] Western Division, clearing of native vegetation in, [12.1550]

Native vegetation -

Natural areas

land categorised as, [8.230] leases and licences over, [8.290] Natural Resources Commission coastal zone management, [14.530] responsibility, statutory, [14.530] Natural resources

definition, [1.180] legislation for conservation of cultural resources and, [1.100] Nature Conservation Trust

objectives, (2.150] revolving fund scheme, [2.150] trust agreements, (2.150] voluntary conservation agreement, [2.150] registration, (2.150] Noise

pollution blanket prohibition against, [9.870] licensing scheduled activities, (9.880] Noise control abatement directions, (9 .1060] effect, [9.1080] orders, [9.2120] criminal offences, (9.1100] entry of premises, [9.1090] notices, [9.1010] offensive noise, (9 .1070] seizure of equipment, (9.1090] Nonconforming uses, [5.410]

Vaughan-Taylor case, amendments after, (5.510]

Notices

clean-up notices, [9.930] clean-up action, definition, [9.930], [9.1980] emergencies, [9 .1990] polluter pays, (9.950] procedural fairness in issuing, [9.940] purpose, [9.930] compliance cost notices, (9.980] recovering costs, [9.980] environment protection notices see Environment protection notices environmental law, and power to give, (1.290] prevention notices, [9.960] "environmentally unsatisfactory manner", (9.960] non-compliance, [9.960] prohibition notices, (9.970] weed control notices, (11.960] appeal, rights of, [11.980] case study, (11.970]

large-scale disposal facility, [7.260] Nuclear facilities

construction and operation, prohibition, [9.2130] courts, limitations of, [2.1 70] damages, remedy of, [2.160] injunction, remedy of, [2.160] land use planning, and law of, (2.160] law of, [2.160] limits to, [2.170] pollution control, and, [2.230] legislation and, (2.240] private, (2.180] aim of law of, [2.180] definition, (2.180] environmental management, case study, (2.190] review of law, [2.200] public background, [2.210] Black Mountain Tower, case study, [2.220] what objectors had to prove, [2.220] restrictive covenants, and, [2.160]

Noxious weeds

aquatic weeds, (11.950] Australian Weeds Strategy, [11.900] biodiversity, impact of invasive plant species on, [12.1570] biological control, (11.1000] agent organisms, criteria for declaring, [11.1040] assessment process, (11.1020] earlier programs, validation of, (11 .1050] emergencies, (11.1070] nuisance, and law of, (11.1010] reciprocal arrangements, (11.1060] revocation of declarations, [11.1080] target organisms, criteria for declaring, (11.1030] categories, (11.930] definition, (11.920] management of, (12.1570] meaning, [11.890], [11.920] notifiable, (11.930] Noxious Weeds Act 1993 (NSW) application, (11.910], (12.1580] offences under, (11.990] offences, (11.990] responsibility for control of, [11.940] weed control notices, (11.960] appeal, rights of, [11.980] case study, [11.970] weed control orders, (12.1570] Nuclear actions

actions requiring approval, (7.250]

0 Occupation certificates

appeals in respect of, [5.2300] complying development, and certification of, (5.1820] exemptions, (5.1840] interim basis, issue on final basis or, [5.1820] preconditions for, (5.1830] Offences

Aboriginal cultural heritage, in respect of protection of, (20.740] aquatic ecosystems, in respect of, (19.930] court orders, failure to comply with, [9.1940] environmental audits, in respect of, (9.1600] fishing, in respect of possessing fish, (19.160] take, and possession, (19.140] taking fish, (19 .150] trafficking in fish, (19 .170] heritage items, failure to maintain, [17.560] prosecutions of, (17.420] interim heritage orders, in respect of, [17.280] local government, offence provisions, (8.100] minerals, theft of, (18.870] mining, enforcement, offences and, (18.840]

1073

1074 -- --

p Index

The Environmental Law Handbook Offences - cont taking water unlawfully, offence of, (15.940] using water unlawfully, offence of, [15.940] Water Management Act 2000, under, [15.940] Land and Environment Court, prosecution in, [15.960] Local Court, prosecution in, [15.960] Offsetting

biodiversity, other, [12.1340] case study, of biodiversity offsetting, [12.1350] Offshore mining and exploration,

[18.20], [18.1150] Australia, coordinating offshore mining in, [18.1220] management arrangements, joint, (18.1230] coastal waters definition, (18.1160] mining reserve, [18.1210] conditions of title, [18.1200] marine parks, activities in aquatic reserves and, [18.1190] minerals, definition, [18.1170] Offshore Minerals Act 1999, as key legislation, [18.90] petroleum, [18.1240] conditions of title, [18.1250] management arrangements, joint, [18.1260] titles, forms of, [18 .1180] Opal prospecting

licences, (18.130] special conditions, power to gazette, [18.210] Operational land

classification as, [8.180] land acquired by council in the future, [8.360] management, development or disposal, powers of council in respect of, [8.180] Ozone-depleting substances

legislative framework, Commonwealth, [9.400] licences, [9.420] controlled substances, [9.430] essential uses, [9 .440] ODS/SGG equipment licence, [9.460] used substances, [9 .450) manufacture and import prohibitions, [9.490] Montreal Protocol, [9.410] NSW legislation, [9.500] offences, [9 .480] petrol stations, minimising photochemical smog through vapour recovery, [9.510]

refrigerants and fire protection agents, [9 .4 70]

p Part 3A

repeal of, (5.2700] Penalties

chemicals, for offences - see Chemicals

contempt of court, [9.1950] fisheries, for offences forfeiture of boat or motor vehicle, power to order, [19.650] penalty notice, power to serve, [19.650] repeat offenders, for, (19.650] Forestry Act, for offences under, (13.590] heritage, remedies, penalties and, [17.400] mining, penalty notices, [18.940] notices - see Notices sentencing options - see Sentencing options

Tier one offences - see Tier one offences Tier three offences - see Tier three offences

Tier two offences - see Tier two offences

water, for offences in respect of, (15.960] Pest control

agriculture, on rural land eradication orders, [11.540] Local Land Services, responsibility for, [11.520] orders, power to make, [11.530] pesticide - see Pesticides Pesticides

aerial spraying, [11.830] agricultural and veterinary chemicals, registration agricultural chemical product, definition, [11.610] applying for, [11.620] Australian Pesticides and Veterinary Medicines Authority, registration by, [11.560] cancellation of approval or, [11.650] criteria for approval or, [11.630] notice of approval or, [11.670] NSW, registration of agricultural chemicals in, [11.600] public participation, [11.660]

reconsideration of approval or, [11.680] suspension of approval or, [11.650] Australian Pesticides and Veterinary Medicines Authority agricultural and veterinary chemicals, registration by, [11.560] establishment, [11.560] functions, [11.570] liability of, case study, [11.700] registers, requirement to keep records and, [11.640] definition, [11.610] enforcement Agvet Code, of compliance with, [11.690] problems with, [11.810] national registration scheme, [11.550] notification of pesticide use, [11 .790] NSW Pesticides Act 1999, (11.710] regulation in, [11.590] use in, [11.710] offences, [11. 720] approved label, use contrary to, (11.740] injury, damage or harm, use likely to cause, (11.750) occupational health and safety, (11. 780] penalty notices, (11. 770] possession and use of unregistered pesticide, [11.730] wilful or negligent misuse, [11.760] organic pollutants, comrol of persistent, [11.580) residues food, in, [11.870) stock, in, [11.880] restricted, [11.820] threatened species, harm to, [11.800] wastes, [11.840] chemical control orders, [11.860] declared chemical wastes, [11.850] Petroleum

assessment leases, [18.1000] challenging grant of titles environmental protection, [18.1030] time limits, [18.1030] cultivated land, landholder consent on, [18.1080] exempted areas, [18.1060] exploration licence, [18.1000]

Petroleum - cont exploration regulation, improved management of, [18.1140] meaning, [18.960] Mining SEPP and, [18.1100] moratorium areas, [18.1070] offshore exploration and production, [18.1240] conditions of title, [18.1250] management arrangements, joint, [18.1260] Part 5, petroleum development and, [18.1130] Petroleum (Offshore) Act 1982 key legislation, as, [18.90] Petroleum (Onshore) Act 1991 key legislation, as, (18.90] planning legislation, and, [18.1090] production leases, [18.1010] prospecting titles, [18.1000] applying for, [18.1020] issuing, [18.1020] protected areas, (18.1050] special prospecting authorities, [18.1000] State significant development, petroleum production and, [18.1110] titles, [18.990] Planning

agreement, by private, [2.20] biodiversity, planning overlays for, [12.940] Mid-Western Regional LEP 2012, [12.950] coastal areas, planning requirements in, [14.160] heritage provisions, planning instruments and, [17.670] law case by case, deciding, [2.270] emergence of, [2.10] role of, in planning system, [2.270] mining, planning approvals mining leases requiring, agency involvement in decision-making, [18.630] objections, where development consent not required, [18.580] public submissions, [18.570] sequence of mining approvals and, [18.480] NSW, in, [2.290] objectives of, [2.250] strategic increasing industrial use as example of, [2.260] legally binding strategic plans, [2.280] zoning, [2.300] classifying development, case study in respect of, (2.31 OJ

legal concept, facts fitting, (2.320] Planning agreements

accountability, safeguards and, [5.2150] development and contribution, connection between, [5.2160] Land and Environment Court, role of, [5.2190] mandatory provisions of, [5 .2130] meaning, [5.2110] notice, public, [5.2180] public purpose, definition, (5.2120] section 94, relationship with s 94Aand, [5.2140] voluntary nature of, [5.2110] what planning agreements cannot do, [5.2170] Plans

environmental law and, [1.270] management plans - see Crown lands

strategic increasing industrial use as example of, (2.260] legally binding strategic plans, [2.280) Plans of management

community land, [8.220] leases and licences authorised by, [8.270] making, [8.250] notice, (8.300] public participation in making, [8.300] Pollution control

administrator, power to appoint for local council or public body, [9 .1700] air - see Air pollution approaches to, [9.20] banning polluting substances, [9.10] broader approaches, to pollution management, [9.30] regulating polluting substances, (9 .1 OJ appropriate regulatory authority (ARA), and responsibility for regulating pollution, [9.640] one site, one regulator, [9.650] tools, primary, to control pollution, [9.660] chemicals - see Chemicals clean-up notices, [9.930] clean-up action, definition, [9.930], [9.1980] emergencies, [9 .1990]

polluter pays, [9.950] procedural fairness in issuing, [9.940] purpose, [9.930] Commonwealth, role of, [9.40] environmental protection measures, national, [9.50] compliance cost notices, (9.980] recovering costs, [9.980] contaminated sites - see Contaminated sites

corporate and director liability, [9.1530] intention, establishing, [9.1530] liability of corporate officers, (9.1540] criminal law, and, [9.20] criminal offences - see Criminal offences

dangerous goods - see Dangerous goods

degradation, preventing environmental, (9.570] duty to notify pollution incidents, [9.1400] when duty to notify arises, (9.1410] education campaigns, [9.30] emergency exemptions, and, (9.1550] enforcement, administration and, [9.1690] entry, powers of search and, [9.1750] Environment Protection Authority licensing, regulation of pollution by, [9.30] objectives, [9 .5 60] pollution, regulating, [9.580] public authorities, power to direct, [9.1690] environment protection licences - see Environment protection licences

environment protection notices see Environment protection notices

environmental law, pollution legislation as arm of, [1.60] Environmental Trust Fund, [9.2900] fines, [9.1890] harm to environment, definition, [9.1140] information, power to require records and, [9 .1770] licensing requirements licensed activities, [9.1050] non-licensed activities, [9.1040] notice of breach of, [9.1000] local councils, by, [9 .990] marine pollution - see Marine pollution

1075

l076

R Index

The Environmental Law Handbook Pollution control - cont National Environment Protection Council establishment, [9.50] national environment protection measures, power to establish, [9.50] national environment protection measures air and water standards, ambient, [9.90] current, (9.110] enforcement, [9.60] power to establish, [9.50] procedure, [9.70] states, variations between, [9.100] what can be covered, (9.60] notices, comparison with licences, [9.1040] nuisance, and law of, (2.230], [9.2130] legislation and, [2.240] ozone-depleting substances - see Ozone-depleting substances

penalties, alternative, [9.1900] pollution incident response management plans implementation, [9.1420] preparation, [9.1420] prevention notices, [9.960] "environmentally unsatisfactory manner", [9.960] non-compliance, [9.960] prohibition notices, (9.970] prosecute, powers to, [9.1720] Protection of the Environment Operations Act, (9.550] objects, [9.560] protection of the environment policies, [9 .590] advertising, [9 .61 OJ consultation, [9.610] impact statements, [9 .600] legal effect of, [9.620] public participation, [9.2000] complain to polluter, [9.2090] encourage councils to exercise statutory powers, [9.2110] information, right to, [9.2020] practical tips on, [9.2080] report incidents, [9.2100] submissions, [9.2010] question, authorised officer's power to, (9.1760] radioactive substances - see Radioactive substances

registers, public, of licence applications, [9.2040] sea dumping - see Sea dumping sentencing options, [9.1890] tier 1 offences, [9.1110] defence, case study, [9.1190] due diligence defence to, [9.1180]

lawful authority, as defence to, [9.1130] wilfully or negligently, meaning, [9.1150] negligence, case study in respect of, [9.1160] tier 2 offences, [9 .1200] waste management - see Waste management

water - see Water Pollution Ports corporations

establishment of, [14.1050] Port Authority of NSW, [14.1050] Positive covenants

effect, [2.60] Precautionary principle application, [1.220] case studies, [1.230] integrating economy with environment, and, [1.200] role of, [1.220] Private land

conservation agreements between landowners and Minister, [12.1610] environmental law, and, [1.340] private property, [1.350] Guide to Private Conservation in NSW, (12.1600] land use regulation - see Land use, regulation

native forestry - see Private native forestry

voluntary conservation, [12.1590] biobanking agreements, [12.1620] Commonwealth conservation agreements, [12.1660] property vegetation plans (PVPs), [12.1640] trust agreements, [12.1630] wildlife refuges, [12.1650] Private native forestry

code of practice - see Private Native Forestry Code of Practice

harvesting of timber for purposes of, [12.1560] Private nuisance - see Nuisance Prospecting

definition, [18.60] titles, [18.380] access arrangements for, [18.390] decision-making, agency involvement in, [18.620] public participation, landholder participation and, [18.540]

Protected areas Aboriginal people land connected with, [4.120] ownership, recognition of Aboriginal, [4.250] activities in, case studies, [4.440] additions to, [4.220] aquatic reserves, marine parks and, (4.150] businesses, licences to carry on, [4.450] Commonwealth, [4.610] definition, [4.610] Crown lands, and, [4.10], [4.110] flora reserves, [4.110] historic sites, [4.110] Karst conservation areas, [4.130] leases, licences and, [4.380] adaptive reuse, grant for, [4.430] logging, [4.360] management of, [4.340] mining, (4.350], [18.240] national parks, (4.110] nature reserves, (4.110], [4.400] other, (4.410] public consultation, [4.390] regional parks, [4.110] rights of way, [4.370] timber areas, [4.180] tourism, sustainable, (4.420] trades, licences to carry on, [4.450] wild rivers, [4.160] wilderness areas, declaring as, (4.280] wildlife refuges, [4.140]

Information, right

Land and Environment Court, in, (5.950] notification of development see Public notification pollution control, in, [9.2000] complain to polluter, [9.2090] encourage councils to exercise statutory powers, [9.2110] information, right to, (9.2020] practical tips on, (9 .2080] report incidents, (9.2100] submissions, [9.2010]

R

designated development, [5 .1000] case study, [5.1010] Public interest decision-making, requirement for consent authority to take account of, [5.1480] case study in respect of consideration of public interest, [5.1490] Public land

classifying, reclassifying and, [8.330] public amenities, or services, land not suitable for, [8.340] definition, [8 .180] Local Government Act, initial classification under, [8.350] public purpose, land subject to trust for, [8.350] public reserves, categorisation of, [8.350] see Nuisance

Public participation

development applications, [5.910] council practice, [5.930]

Records

fish, of, [19.540] registers, State, (17 .240] inspection, public, of, [17.250] State government agencies, heritage managed by, [17.590] State protection of, [17.680] public access to, (17.680] Recreational fishing

fee exemptions, [19.220] mandatory, introduction of, [19.210] havens, [19.230] licensing, [19.210] NSW law, or Commonwealth, (19.200] sector, [19 .20] Regional perspectives

Radioactive substances

EPA, powers in respect of, [9.380] legislative framework for regulation of, (9.320] radiation management licences, (9.340] radiation protection principles, (9.330] radiation user licences, [9 .350] regulation of, (9.320] safety provisions, [9 .390] security requirements, (9.370] Rainwater tanks

Public exhibition

Public nuisance -

Public participation - cont Minister, public hearings requested by, (5.920] procedural fairness, case study in respect of, [5.940] statutory requirement, where no, (5.930] information, right - see

development consent, need for, [15.1050] installation of, [15.1050] Ramsar wetlands, (7.140]

actions requiring approval, [4.630] Central Murray State Forests, controlled action and ecological thinning in, [7.170] coastal areas, [14.670] declaration of, [14.670] listed in NSW, [4.630], [7.150] management, [7.180] protection, [4.630], (7.160] threatened species conservation, and, [14.640] world heritage areas and, (4.630] Rates

agricultural, power to levy, [11.300] heritage, taxes and, (17.520] conservation, taxation relief for, [17.540] land tax, [17.530] Receivers

fish, registration as, (19.530]

local government and, (8 .170] Registers

Aboriginal Owners, Register of, (20.190] biobanking, public, [12.1270] National Estate, Register of establishment, [17.850] exist, ceasing to, (17.850] National Trust, maintenance by, [17.690] pollution control, of licence applications, (9.2040] protection of, (17.440] State Heritage - see State Heritage Register

water access licence, [15. 7 50] content, what is included, [15.760] Remedies

clean-up action, [9.1980] emergencies, (9 .1990] court enforceable undertakings, [9.1970] heritage, penalties and, [17.400] prevention notices, (9.1980] situation, remedying, [9.1960] Residential apartments

development applications relating to, [5.740] residential flat buildings, s 342ZA Local Government Act and erection of, [5 .1130] notification, [5.1140] objections, [5.1150] readvertising, [5.1160] Restrictive covenants, (2.30]

binding, making, [2.40] conservation, and, (2.90] Conveyancing Act, under ss 88D and 88E, [2.120]

development consent, covenants as condition of, (2.130] examples of, (2.50] modification courts, through, [2. 70] planning legislation, under, [2.70] nuisance, law - see Nuisance removal courts, through, [2.70] planning legislation, under, (2.70] "run with the land", [2.40] Rivers and lakes

approval, applications for, [14.1210] determinations, [14.1230] public participation, [14.1220] banks and beds, development on, [14.1100] coastal land, riverside land and see Coastal and riverside land

control of works, in and near watercourses, (14.1130] acquifer interference approvals, (14.1190] controlled activity approvals, [14.1180] enforcement, [14.1200] fisheries management legislation, (14.1240] licences and permits, to construct works under Water Act 1912, [14.1140] Water Management Act 2000, approvals under, [14.1150] activity approvals, [14.1170] controlled activity approvals, [14.1180] water management work approvals, [14.1160] water use approvals, [14.1150] Crown land, leases and licences to use, [14.1090] extractive operations - see Extractive operations

middle line rule, [14.1060] exception to application, [14.1070] statutory restrictions on, [14.1080] non-tidal, [14.1060] NSW State Rivers and Estuaries Policy 1993, [14.1110] development assessment process, application in, [14.1120] ownership of beds of, [14.1040] tidal, [14.1040] reclamation and dredging - see Reclamation and dredging

regulation of rivers, [15 .20], [15 .260]

1077

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The Environmental Law Handbook Rivers and lakes - cont what rivers are regulated, [15.270)

T Index

public facilities, need for, (5.1940) reasonableness, (5 .1960) refund of monetary contributions, [5.2030) scope of section 94, [5.1890) sewerage services, application ta, [5.1930) valid conditions, case study on requirement for, [5.1900) water supply, application ta, [5.1930)

Rural land agriculture and land sharing communities, [11.140) LEPs, protection through, [11.110) planning principles, [11.130) protection, [11.100) SEPPs, protection through, [11.130) subdivision principles, [11.130) land sharing communities, [11.140) planning principles, [11.130) protection, [11.100) SEPPs, protection through, [11.130)

Section 94A levies accountability, [5.2100) development cost, and estimation of, [5.2090) maximum amount, [5.2070) meaning, [5.2070) planning agreements, relationship with, [5.2140) power tO impose, [5.2080)

s

Section 149 planning certificates coastal protection and, [14.790)

Sea dumping Commonwealth roll back of provisions, potential, [9.2360) defences, [9 .23 70) enforcement, [9.2380) legislative framework, [9.2330) exemptions, [9.2340) permits, [9.2350)

Sentencing options, [9.1890) community service orders, [9.1910) court, powers in respect of, [9.1920) fines, (9 .1890) penalties, alternative, [9.1900) remedies - see Remedies restraining orders, [9.1930)

Section 94 contributions accountability contributions plans, and requirement for, [5.1990) holding contributions, and applying, [5.2020) record keeping, [5.2040) already provided, where facilities have been, [5.1950) capital costs, recurrent costs and, [5.1980) case study, [5.1970) contributions plans accountability and requirement for, [5.1990) preparing, [5.2010) Land and Environment Court, power to disallow or amend s 94 condition, [5.2000) local government area, within, [5.1910) Minister contributions imposed by Secretary or, [5.2050) directions, Ministerial, [5.2060) planning agreements, relationship with, [5.2140) public amenities, what are public services and, [5.1920)

SEPPs -

see State environmental planning policies {SEPPS)

Shale gas meaning, [18 .970) NSW gas plan, (18.980) Share management fisheries appeals, [19.440) benefits of, [19.390) catch history, determining, [19.480) charges, [19.410] entitlement, exceeding, [19.460) finalising share management, [19.450) introduction of, [19.370) shares, allocation of, [19.430] sustainable practices, encouraging, [19.400) transition, to new system, [19.470) types of, [19.380) who can fish, [19.420) Shipwrecks hisroric, conservation of, [17.940) Soil conservation agricu lture, and productive, [11.440) catchment areas, [11.450) erosion hazard areas, [11.450)

regulation, [11.470) section 18 notices, (11.480) section 15A notices, [11.500) section 22 notices, [11.490) SEPP {Infrastructure) 2007, [11.510) Species impact statement {SIS) biodiversity, and, (12.1080) critical habitat, and development proposed on land, (12.1080) development applications, Part 4, [12.1080) alternatives ta, [12.1140) consultation, concurrence and, (12.1130) contents, what statement must include, [12.111 OJ public exhibition, [12.1120) initial assessment, [6.230) need for, [6.220) Part 5 activities, [12.1160) biodiversity impacts, general consideration of, [12.1150) consultation, concurrence and, (12.1180) public exhibition, [12.1170) state significant development, infrastructure and, [12.1190) timing, [6.230) Staged development applications, [5.780) consents, and, [5.750) concept proposals, staged development and approving, [5.770) effect of consent, [5.790) resort built over 15 years, case study in respect of, [5.760) development control plan, as alternative to preparation of, [5.810) modifying staged development consent, [5.800) tatal development consents, or partial, [5 .820) Standing to sue Commonwealth cases, judicial review in, [2.850) "person aggrieved", who is, [2.860) North Coast Environment Council, [ 2.860] Tasmanian Conservation Trust, [ 2.870] environmental litigation - see Environmental litigation injunctions - see Injunctions Land and Environment Court civil proceedings, [2.800) commercial interest, [2.820) cultural interest, [2.830)

Standing to sue - cont "intellectual and emotional concern", [2.840] special interest, (2.810] private prosecutions, [2.890) special provisions in legislation, (2.880) State environmental planning policies {SEPPS) biodiversity, and - see Biodiversity coastal and riverside land - see Coastal and riverside land conservation purposes, use for, [12.860) coastal wetlands, [12. 870] rainforests, littoral, [12.870) SEPP 19 - Bushland in Urban Areas, (12.890) SEPP 44 - Koala habitat, [12.900) rural land, protection through, [11.130) State Environmental Planning Policy 30 - Intensive Agriculture {SEPP 30), [11.50) State Environmental Planning Policy {Exempt and Complying Development Codes) 2008 aims, (14.510) application, [14.510) State Environmental Planning Policy No 50 - Canal Estate Development prohibition, of canal estate developments, [14.490) exceptions, (14.490) State Environmental Planning Policy No 14 - Coastal Wetlands aim, [14.370) boat ramp, case study in respect of building, [14.420) development consent, for work in wetlands, [14.380) Directer-General's concurrence, [14.400) environmental impact statements, (14.390) resroration works, [14.410) State Environmental Planning Policy No 71 - Coastal Protection aims, (14.200) application, [14.210] development applications, additional matters for LEPs and, (14.230) master plans for subdivisions, [14.260] content, what master plans must cover, [14.290) development applications, splitting, [14.320)

development consents, case study of challenging, [14.340] legal effect, whether binding, [14.310] public information on, [14.300] sensitive coastal locations, what are, (14.280) waiving of, [14.330] when required, [14.270) section 149 certificates, [14.220] significant coastal development, [14.240) local councils, referral by, [14.250) summary of, [14.190) State Environmental Planning Policy No 26 - Litteral Rainforests application, [14.440) concurrence, requirement for, [14.460) development consent, requirement for, [14.450) exceptions, [14.480) mapped land, environmental impact statement for development on, [14.470) purpose, (14.430) State Heritage Register deciding on listing, procedure for, [17.200) effect of listing, [17 .2 70] inclusion of places on, or items, [17.180] items on, (17 .230) judicial review, of decision by Minister, (17.220) listing on, [17.170) offences in respect of places or items on, [17.280) exceptions, [17 .290] places on, [17.230) recommending listing, procedure for, [17.190] removal of listing from, (17.210) State of the environment reports ecologically sustainable development, [1.240) Environment Protection Authority, requirement to make, [9.2030) local government, and, [8.150) State significant development agriculture, and, (11. 70) declaration of, [5.2710) development consent from Minister, requirement for, [5.2720) EPis, development prohibited by, [5 .2730) infrastructure, State significant, [5.350), [5.2760]

critical, [ 'i.2780) other